Acquittal in money laundering tied to cigarette sales on indigenous reservationAbsolución en legitimación de capitales vinculada a venta de cigarrillos en reserva indígena

Res: 2013-0 337 TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL. Segundo Circuito Judicial de San José. Goicoechea, at fifteen hours and twenty-five minutes on the nineteenth of February, two thousand thirteen.

APPEALS filed in the present case against Nombre01, of legal age, [...]; for the crime of MONEY LAUNDERING to the detriment of THE ADMINISTRATION OF JUSTICE. The judges Rosaura Chinchilla Calderón and Lilliana García Vargas and the judge Edwin Salinas Durán participate in the decision on the appeal. Appearing at this venue were licensed attorney Natalia Sarkis Fernández, prosecutor of the Public Ministry; the accused, by means of a brief authenticated by licensed attorney Juan José Picado Herrera; and licensed attorney Carlos Luis Ibarra García, private defense counsel for the accused, and;

WHEREAS:

1. That by judgment No. 826-2012 of sixteen hours on the thirtieth of August, two thousand twelve, the Tribunal Penal del Primer Circuito Judicial de San José, resolved: "POR TANTO: Articles 24, 39, 41 and 42 of the Constitución Política; 11 of the Declaración Universal de Derechos Humanos; 8 subsections 2 and 4 of the Convención Americana de Derechos Humanos; 14, 7 of the Pacto Internacional de Derechos Civiles y Políticos; 6 of the Convención de las Naciones Unidas contra la Delincuencia Organizada; articles 1, 30, 31, 45, 110 of the Código Penal; 1, 11, 45, 136, 142, 258, 324, 341 to 357, 360 to 365 and 367 of the Código Procesal Penal; articles 69, 83 to 92 of the Ley 8204 sobre Estupefacientes, Sustancias Psicotrópicas, Drogas de Uso no Autorizado y Actividades Conexas, Legitimación de Capitales y Financiamiento al Terrorismo y sus Reformas; article 92 of the Ley 9745 Código Tributario; it is resolved: 1.- ON CRIMINAL LIABILITY Nombre01 is declared the responsible perpetrator of the crime of MONEY LAUNDERING FROM A SERIOUS CRIME committed to the detriment of the Administration of Justice and the Socio-Economic Order of Costa Rica and in such capacity he is sentenced to the term of TWELVE YEARS OF IMPRISONMENT which he shall serve in the place and manner determined by the respective prison regulations, after credit for the preventive detention suffered, if any. 2.- ON THE PRECAUTIONARY MEASURE OF PREVENTIVE DETENTION The legal situation of the accused, now convicted Nombre01, having varied in that there exists a judgment of certainty regarding his authorship and liability, and in order to guarantee the fulfillment of the action of Justice and the valid conclusion of this proceeding in which a prison sentence has been imposed that far exceeds the granting of any penitentiary or judicial benefit, an EXTENSION OF THE PREVENTIVE DETENTION IS ORDERED FOR A TERM OF SIX MONTHS counted from today, expiring on the next 28 February 2013, on which date it will be reviewed again. Should this ruling become final (firmeza) before that date, the convicted person shall be placed at the order of the Instituto Nacional de Criminología for their corresponding responsibilities. 3.- ON THE FORFEITURE (COMISO) OF ASSETS a.- The definitive forfeiture (comiso definitivo) in favor of the Instituto Costarricense sobre Drogas of the following assets is ordered [...]. c.- THE DEFINITIVE FORFEITURE (COMISO DEFINITIVO) in favor of the Instituto Costarricense sobre Drogas of the following FINANCIAL PRODUCTS is ordered: of the liquid sums in account number [...] in the name of Nombre01 at the BCR; in the [...].- THE LIFTING OF THE PRECAUTIONARY MEASURES encumbering the movable assets, immovable assets, and financial products not affected by this judgment is ORDERED. e.- THE RETURN to the convicted person Nombre01 or whom he authorizes of the various documents seized in the search diligences, as well as the cash money found in the dwelling of the convicted person Nombre01, the deposit slips of which appear on folio 234, IS ORDERED. The interested party is granted a non-extendable period of THREE MONTHS counted from the finality (firmeza) of the ruling to proceed with the withdrawal of the objects and valuables whose return is being ordered; otherwise, once the period has expired, their destruction or forfeiture (comiso) shall proceed. f.- THE RETURN to the Municipalidad de Limón of the administrative case files in the name of the commercial and personal businesses involving the accused Nombre01 IS ORDERED. The notification of this ruling to the Instituto Nacional de Delincuentes and to the Instituto Nacional de Criminología for their corresponding responsibilities is ordered. g.- Costs are borne by the State as the proceedings were initiated at the instance of the Public Ministry. It shall be notified by full reading. NOTIFÍQUESE. Nombre02. Ricardo Barahona Montero. Linda Casas Zamora" (sic, folios 835 to 934).

2. That against the previous pronouncement, the appeals known here were filed: by licensed attorney Natalia Sarkis Fernández, prosecutor of the Public Ministry; the accused, by means of a brief authenticated by licensed attorney Juan José Picado Herrera; and licensed attorney Carlos Luis Ibarra García, private defense counsel for the accused.

3. That having verified the respective deliberation, once the requested oral hearing was held, in accordance with the provisions of article 466 of the Código Procesal Penal (reformed by laws No. 8837 and No. 9021 and following the numbering indicated in the Fe de Erratas adopted by agreement of the legislative directory published in La Gaceta No. 51 of 12 March 2012, which is the one that will be used in this text), the Tribunal considered the questions formulated in the challenges.

4. That the pertinent legal prescriptions have been observed in the proceedings.

Judge Chinchilla Calderón writes, and;

CONSIDERANDO:

I.- In what was termed the first ground regarding form, the private defense counsel for the accused, licensed attorney Carlos Luis Ibarra, alleged a violation of the Ley de Traducciones e Interpretaciones Oficiales No. 8142 of 05 November 2001, of the regulations to said law, Decreto 30167-RE of 25 January 2002, and the non-application of numeral 130 of the Código Procesal Penal, because the person designated as an official interpreter (not translator), Nombre03, was not one. He states that although an official interpreter was previously not required, they are required under this law and, to have such status, must be registered with both the Ministry of Foreign Affairs and the Executive Directorate of the Poder Judicial, without the designated person being on the official list, as he claims to demonstrate with the documents at folios 1102 and 1103. Therefore, he considers that the interpretation she performed of the statements of the witnesses from the New York District Attorney's Office, Nombre04 and Nombre05, cannot form part of the evidence to be assessed, as it was not legal evidence, and due process has been violated, given that these were elements in English. He requests that the ineffectiveness of this evidence be declared. In responding to the appeal orally (as he omitted to do so in writing, a hearing having been requested before this Chamber), the Public Ministry indicated that this ground should be rejected because there is no grievance (agravio), given that no error was demonstrated in the work performed by the translator, even though she was not on the official list of interpreters. The ground is rejected. Even though this matter, for the reasons to be stated in other sections, must be resolved on its merits, it is necessary to analyze the subject proposed in this ground, as the use, or not, of certain evidentiary material in the remaining considerations depends on this. In this context, it must be accepted that, indeed, through Law No. 8142 of 05 November 2001, called the Ley de Traducciones e Interpretaciones Oficiales, effective from its publication on 26 November 2001, the subject of official translations and interpretations was regulated. Said legislation, in its first numeral, distinguishes translation (which is the transfer of written material from one language to another) from interpretation, which is the same process but for oral language, and indicates, in numeral 3, that "Public institutions shall require the official translation of any document issued in a language other than Spanish, with a view to producing legal effects in Costa Rica..." (emphasis not in the original text), entrusting, in numeral 5, the Legal Directorate of the Ministry of Foreign Affairs and Worship with authorizing and sanctioning persons accredited as official translators or interpreters, to whom that same regulation grants public faith (fe pública) in the documents they issue in the exercise of such roles. Additionally, it is noted that their appointment must be made by executive agreement of the Ministry of Foreign Affairs and Worship, if they meet the requirements of article 6 of that law, among which are mentioned: being Costa Rican, or a resident with a minimum of five years of continuous domicile in the country; being of legal age; possessing, in both Spanish and the target language, the proficiency typical of a person versed in their cultural expressions; having up-to-date knowledge of the languages for which the appointment is requested; having access to information technology resources, reference materials, and adequate tools to perform the profession; having a minimum of five years of continuous, verifiable experience in professional translation or interpretation in each of the languages for which the appointment is requested; not being disqualified by the Ministry of Foreign Affairs and Worship; submitting a sworn declaration that they have none of the impediments indicated in that Law; and providing certification of having passed the examination for translator or interpreter that, for the purposes of this Law, is administered by any entity authorized by the Ministry of Foreign Affairs and Worship, through its Legal Directorate. However, that regulation did not provide for any administrative or procedural sanction for its non-compliance, but only regulated the disciplinary regime of the persons registered there. Likewise, the sole transitory provision of that law established that "Official translators and official interpreters appointed before the entry into force of this Law shall retain their acquired rights." The Regulations to that regulation were issued by Decreto Ejecutivo No. 30167-RE of 25 January 2002, published in the Diario Oficial La Gaceta No. 43 of 1 March 2002. This latter regulation, alongside public faith (fe pública), regulated professional secrecy (article 7) and, paradoxically, also the public nature of official translation and interpretation (article 12), as well as a series of formalities of the act and clarifications regarding the requirements, procedures, and disciplinary regime for persons so designated. For its part, the Código Procesal Penal deals with reiterating the need for translations and interpretations for persons who do not understand Spanish, or reiterating that this is the official language of the proceeding (see, for such purposes, articles 14, 130, 131), as a result of internationally assumed obligations related to this subject and its link to the right of defense (see articles 8.2.a of the Convención Americana sobre Derechos Humanos and 14.3.a and f of the Pacto Internacional de Derechos Civiles y Políticos), to the point of not authorizing that the fees paid to such a professional be charged to the accused (article 265, final paragraph), but without making specific regulations on the subject, except for the reference contained in numeral 215, final paragraph, which indicates that, in matters of interpreters or translators, as it concerns knowledge outside the legal field, the rules of expert reports (peritajes) shall be applied analogously. However, given that the procedural legislation is prior (it came into force in 1998 and dates from 1996) and is general, that regulation, special and posterior, must prevail over it, such that the referred rules of the expert report (peritaje), specifically regarding the form and requirements for designating the person in charge of translation or interpretation, must be understood as applicable before the entry into force of that regulation. From this point of view, the appellant is correct, for, indeed, in this matter, Mrs. Nombre06 served as translator of the documentary evidence, appointed by the prosecuting entity due to lack of resources (inopia), given that on the official list, provided by the Executive Directorate of the Poder Judicial, there was no available professional. This appointment has not been questioned. Likewise, the Tribunal appointed Nombre07 as interpreter for the receipt of the oral statements (see folio 634), who accepted and swore the oath of office (see folio 637) without, neither at the time of that appointment nor, subsequently, during her intervention (see folios 658 to 661), any opposition being raised by the defense which, on the contrary, conducted its questioning of the witnesses using the services of the referred interpreter. It is also evident at folios 1102 and 1103 that the procedure followed by the Poder Judicial for the designation of such professionals, duly published in Boletín Judicial 134-12 of 11 July 2012, is in accordance with that regulation (of higher rank) and that the referred professional is not registered, as an interpreter, with the Ministry of Foreign Affairs and Worship. However, although the appellant's legal argument is correct, the objection by the Public Ministry is no less so, given that, although it is obvious that there is a flaw (since it was also not proven that the interpreter had been one prior to the entry into force of that law to maintain her rights), this was not only not objected to in a timely manner (neither upon appointment of said person nor during her work) and, rather, the defense used the professional services of the interpreter to formulate its questioning, tacitly accepting the act, thereby convalidating that flaw (article 177, subsection b) of the Código Procesal Penal), but also, in this venue, no specific topic is argued in which it can be determined that said person performed her work erroneously and that, therefore, what was recorded as said by the English-speaking declarants was not accurate in the linguistic transfer made to Spanish. Article 439 of the Código Procesal Penal states that the existence of a grievance (agravio) is essential for challenging, and that it cannot be alleged by someone who has contributed to causing the flaw, unless constitutional rights or the assistance and representation of the accused are harmed, which is not even mentioned in the ground. Therefore, what is sought is the fulfillment of rites in and of themselves, disregarding the purposes for which they were created, which is nothing other than a senseless formalism, as no right is being protected, and from that perspective, the allegation must be rejected, which therefore makes it possible for the remainder of this Chamber's decision to rely on the interpreted statements of the North American declarants.

II.- The accused, in a personal capacity, by means of a brief authenticated by licensed attorney Juan José Picado Herrera, files an appeal against the conviction handed down against him. In the first section of his appeal, he alleges that the principle of innocence was violated as an essential element of due process. He cites constitutional, conventional, and legal provisions; transcribes excerpts from the judgment and states that for the crime attributed to him, of laundering capital introduced through banking channels (and not in sacks or furtively) and originating from the company Peace Pipe of New York, it is necessary to prove the pre-existence of another crime (for this matter, cigarette smuggling in the Poospatuck Indian Reservation by selling them, without taxes, to non-indigenous people, taking advantage of the fact that Nombre01, the wife of the accused's brother, was an [...], who can sell cigarettes without taxes to other indigenous people) committed, in this case, by another person (the accused's brother Nombre07) in another country (United States of America). He points out that the presumption of innocence arises from the moment a person is a suspect and is only overturned by a final conviction (firme), given that, during the procedural interim, said presumption becomes a fundamental right, without any legal practitioner being able to rely on a supposed guilt before it is declared. He considers that in this type of unlawful act, said presumption exists not only in the proceeding that concerns us but, also, in the prior proceeding to demonstrate the pre-existing crime. However, he deems the legal reasoning of the sentencing Tribunal to be erroneous in making an equivalence between detention (of his brother in the United States) and the guilt of both, for they overturned the principle from the moment Nombre07 was detained in the United States on 02 August 2004 when, it was not until many years later, that he was found liable, currently without finality (firmeza) and not for all the acts attributed to him, none of which the accused in this case was in a position to know at the time he received and administered the money. Transcribing parts of the judgment, he states that the jury trial in the United States, followed against his brother, began in October 2007 and ended in May 2008 when he was declared innocent of homicide, robbery, and arson, but guilty of illegal carrying of a weapon and illegal sale of cigarettes or smuggling, against which the defense filed various motions. In one of them, Judge Hurley reversed the jury's decision and exonerated him from liability for the sale of cigarettes (considering it probable that Nombre01 did not know about the legal prohibition on selling untaxed cigarettes, given that the law was not sufficiently clear) and only maintained the charge of illegal possession of a weapon, all this in January 2010. He points out that this crime admits, in Costa Rica, suspension of the trial proceeding (suspensión del proceso a prueba), and therefore does not necessarily have to be sentenced, in addition to the fact that, in the United States, acts for which he had been acquitted were taken into account as aggravating factors for the sentence. Finally, by analogy, in our country, this is not a serious crime, in addition to the fact that it cannot be taken as the basis for the necessary pre-existing criminal activity, as it has no relation to the money. Regarding the sale of cigarettes, the charges disappeared and, therefore, the defendant here had no reason to doubt the monies received. Later, the North American government took that decision to the Appeals Court, which, in July 2012, reinstated the smuggling charges without, to date, a sentence having been set for him, but it being on that last date that one can speak, with certainty, of the guilt of Nombre07 having been born to legal life. Only from then on could the defendant here know that the money he sent was illicit. He indicates that with the detention, the only thing he could know was that his brother was facing a legal process, but not that he was going to be declared guilty, a decision that had many favorable legal vicissitudes for his brother, as mentioned. He considers it arbitrary and illegal that the sentencing Tribunal based itself on the date of the brother's detention to support this judgment, by saying that the accused, from that moment on, should have known that the monies were illicit. For this reason, they convict him and decree forfeitures (comisos). He requests that this Chamber expressly rule on the legality or not of that decision by the a quo court. He adds that he could not know, with the sole detention of his brother in New York, the illicit nature of the monies he sent from the sale of tobacco in the United States, an activity of which he remains convinced was legal and in accordance with the indigenous custom of said country. He adds that the judgment confuses charges brought with charges proven, making speculations without support in the decision itself of the North American tribunals which, to date, is not final (firme). He considers that, given that lack of final (firme) decision, the Tribunal self-attributed a "right" that did not correspond to it, but was the sole concern of the North American Tribunals, namely, to judge whether the predicate crimes occurred in that nation, arriving, here, practically at a conviction against his brother, violating all procedural, legislative, and jurisdictional mechanisms, as the judges overstepped their authority, an action in which, furthermore, they committed egregious errors, such as taking into account a sworn statement from Mrs. Nombre01, sister-in-law of the defendant here and, therefore, likely to abstain from testifying in our jurisdiction, as provided in articles 36 of the Constitution and 205 of the procedural law, a subject that the judges did not even question. "I believe the Tribunal has exceeded its judging function, for it crosses borders and concludes from a proceeding that has not concluded there and has no connection. It is also not that we are saying that the analysis of the pre-existence of the crime has to be very 'light' (sic) but this must necessarily be based on a conviction judgment (...) And that liability is entirely that of the Tribunals of the sister country and not of the trial court of our country" (folio 1020). He argues that if, as is the case in this matter, much of the tobacco sold was to North American indigenous persons and, therefore, was tax-exempt, even accepting that there was some tobacco sold to non-indigenous persons, which did not pay taxes even though it should have, there was no accounting study and, therefore, it is unknown how much of the money sent from that country to ours was legal (produced from tax-exempt sales to indigenous people) and how much was not, questions that were no obstacle for the Tribunal to convict and order the forfeiture (comisar) of everything, for which reason the indication of the monies sent is amphibological, generated doubts, and could not support a conviction but rather an acquittal. He states that his intent (dolo) is tangible as of July 2012, not before, and that the Tribunal broke the logical scheme of judicial analysis, for he was convicted before his brother, a pre-existing fact that should have been final (firme), without it being so. He requests his acquittal and that the forfeiture (comiso) be reversed, as there is no prior illicit act, since it cannot be determined that the monies received are the product of the illegal sale (and not the legal sale) of cigarettes and because, furthermore, the assets were increasing with the dividends and interest generated, which was indeed legal, despite which a generalized forfeiture (comiso) was decreed. In the alternative, he requests a remand (reenvío). In the second ground, the violation of the principle in dubio pro reo and the incorrect assessment of the evidence, contrary to the rules of sound criticism, is argued. He points out that he is not a lawyer and does not know North American law, and therefore had no reason to know that if his brother had been sending money legally and regularly, through the national banking system, from his detention on 02 August 2004, he should have even suspected that this money was illicit, when, however, that decision has not been unimpeachable in the North American judicial system, to the point that a judge revoked the jury's decision and the local Tribunal does not have clarity as to which monies were legitimate and which were not, nor when the latter were moved, but rather it was assumed that everything received from the day of the detention, 02 August 2004, was illicit. He states that there is no accounting that demonstrates how much the sales of cigarettes to non-indigenous people amount to (who should have paid taxes) nor how much those made to indigenous people (who did not have to pay them and, therefore, were legal sales), nor that everything brought into the country was the illegal portion, but rather what was sent to Costa Rica could have been the legal portion. He indicates that, in this matter, no reference is made to capitals that, in the entire process, are illegal, such as those arising from drug trafficking, but rather they are monies obtained from tobacco sales, which are legal if taxes are paid for non-indigenous people, and that the transactions were made, not in sacks or furtively, but through the banking system of both countries, making it contradictory that Costa Rica decrees the forfeiture (comiso) of assets and not that these be placed at the service of the North American government, for their tax claims. He adds that the judges practically conducted a trial of his brother, for they deemed the pre-existence of a serious crime proven without the proceeding in North America having concluded, since a sentence has not yet been imposed on Nombre01 in order to know if we are facing a serious crime. He requests a remand (reenvío) or the revocation of the conviction decision, with his immediate release. For his part, licensed attorney Carlos Luis Ibarra, private defense counsel for the accused, files an appeal. In what he improperly terms, given the type of challenge now in force, the second ground regarding form, he alleges the violation of article 2 of the Código Procesal Penal because the sentencing Tribunal, purporting to make a correct use of the double imputation or identity of the norm (according to which both North American legislation and national legislation must contemplate smuggling as a crime), alludes to the penalty to justify this requirement, when what the doctrine indicates is that the conduct must be illicit in both countries and, in ours, it is regulated in article 211 of the Ley General de Aduanas and not in the one mentioned by the a quo court, which put words in his mouth that he did not say (such as that this double incrimination did not exist). However, such a crime is punishable with a penalty of one to five years and, therefore, since the minimum sanction for the precedent act is one year, it does not serve as a basis for the crime of money laundering, which, then, has not been born to legal life, because numeral 69 of Law No. 8204, prior to the 2009 reform, did not define what should be understood as a 'serious crime,' nor did any other provision of the legal system, before the Convención de las Naciones Unidas contra la Delincuencia Organizada or Convención de Palermo, which is not applicable to the matter. He indicates that the lower extreme of the sanction must be taken, not the higher, to know when one is facing a 'serious crime.' However, the Tribunal made an analogical interpretation of numeral 92 of the Código de Normas y Procedimientos Tributarios No. 4755 of 03 May 1971 (prior and general law) where the crime of smuggling is not contemplated, which is provided for in a special and subsequent law (Ley General de Aduanas No. 7557 of 20 October 1995) that was not applied and to which article 1 of the Código de Normas y Procedimientos Tributarios itself makes an exception, and to which numeral 223 of the Ley General de Aduanas refers. By proceeding in this way, the judges apply a norm that indeed has a minimum penalty of more than five years and not the correct law, whose minimum penalty is one year and which would make it impossible for a serious crime to exist as the basis for the conduct judged here. He requests the nullity of what has been done for a new substantiation. In the first ground of appeal on the merits, and with some doctrinal citations, the non-application of articles 20, 102, and 182 of the Código de Comercio is alleged, as corporations have their own legal personality and being a shareholder of them does not make that person their owner, nor does it convert the individual into the entire legal entity, but rather they remain two subjects with differentiated personality. He deems this important because the money received came from Nombre08 (a company owned by Nombre01's wife) with the North American bank Nombre09, without the physical person or legal representative having to personally answer for the obligations contracted by the companies, despite which, the Tribunal indicated that the money transferred by that company was done by Nombre07 and was his, which finds no evidentiary support. In the United States, neither the company nor Nombre01's wife (indigenous) were denounced, so these precepts are violated if it is considered that the money belonged to his North American brother, when he only acted as the representative of a company, according to the evidence provided in the trial. Therefore, the crime of money laundering never came into legal life because there was no predicate crime by that company or its indigenous owner, but by the accused's brother (who, according to witness Nombre01, owned apartments and condominiums and a shopping center and administered that company, but whose effects are not attributable to him). He considers it impossible to make a division of the monies received by the accused's brother, in a personal capacity, from others, and for this reason, he requests the issuance of an acquittal. As a second ground of appeal on the merits, he reproaches a broad, analogical, and improper interpretation of articles 69 of Law No. 8204 and 92 of the Código de Normas y Procedimientos Tributarios, since the North American authorities found Nombre01 responsible for the crime of smuggling (selling cigarettes to non-indigenous people without paying taxes), conduct that, in Costa Rica, in accordance with double incrimination, corresponds to that established in the Ley General de Aduanas (article 211 called contrabando) and not in the Código de Normas y Procedimientos Tributarios, the former prevailing over the latter as indicated by Voto 885-2003 of the Sala Tercera.

The crime contemplated in the General Customs Law carries a minimum sentence of one year, so it cannot be conceptualized as a serious crime, because Article 69 of Law No. 8204, without the 2009 reform (where it establishes the threshold at four years), did not establish what should be considered as such. He requests the reversal of the judgment and the acquittal of the defendant. As a third ground on the merits, the appellant, after summarizing the arguments outlined in other grounds, points out that the principle of legality may have been violated because, when numeral 69 of Law No. 8204 states “whoever performs any other act,” it transfers to the judge the power to define the criminalized conduct, throwing overboard the legal reservation in matters of criminal classification, without such procedure being authorized by the Palermo Convention, which requires legislating on the subject. He states that this is a blank criminal law, filled with administrative provisions, and points out that Nombre01 was detained on August 4, 2004, and the Court attributed to the defendant having received money from him (which he administered under the mandate figure and was not his, but belonged to a commercial company, which has not been accused of committing a crime, in addition to Nombre01 having other activities different from managing the sale of cigarettes) starting on August 6, 2004 (transfer for four million four hundred thousand dollars that, he says, does not appear in the defendant's accounting documentation) and during the years 2005 and 2006 (for almost six million dollars), that is, when Nombre01 was already in prison, without it being possible to make transfers under such conditions and without that money necessarily being the product of the crime of smuggling, since this was not proven, but rather the resources in the name of Nombre01 —which fed the redeemed growth fund in dollars and subsequent operations, carried out by the Banco de Costa Rica, at the request of the accused— were transfers made by the company Nombre08 with Banco Nombre09 of New York, which was not accused of a crime and which, in the worst case, could be part of said person's dividends, if she were a partner, without proving the quantum thereof and without it being possible to know if all that money came from the sale of tax-free cigarettes to non-indigenous people or from other activities of Nombre01, none of which is established with certainty. He adds that the judgment attributed to the defendant here the acquisition, with that money, of different properties starting in 2007, but that cannot be an indication of anything, much less of concealing the origin, which was clear, since, for a long time, the money was without movement and only the investment strategy varied, as the assets were always placed in the name of the defendant or a company belonging solely to him, without seeking front men, keeping double accounting, opening accounts under simulated names, or in any other way hindering the tracing of those sums. He considers that the prior crime was not proven, that all those funds came from a company legally established in the United States (a place that is not a tax haven but is strict in its controls) and that they were subject to verification through that country's Patriot Act, entering the banking system of that country and ours, without any irregularity being found, which remained so for several years without, then, being able, from one moment to the next, to presume the illicit origin thereof, which was not proven. He cites author Nombre10 to point out that, even when the illicit origin of the money is known, if there is no intent to hide or conceal, the crime in question does not occur, and that the formula “by any act” violates the principle of criminal legality. He requests the reversal of the judgment and the acquittal of the accused. In the fourth ground on the merits, the violation of numeral 34 of the Penal Code is alleged because he argued the existence of a mistake of fact (error de tipo) by the defendant (and not a mistake of law (error de prohibición) as he says the judges incorrectly interpreted), by not knowing that the monies received and the purchase of properties in his brother's name made with those funds were done with illicit resources. He states that Nombre01 has been the first person convicted in the United States for the crime of smuggling for the sale of tax-free cigarettes to non-indigenous people since, due to social policy in that country, for a long time, such an illicit act was not punished, even though there was an express law. He points out that, due to that ambiguous situation of the North American authorities, who decided not to apply a law, it could be considered that the sale of tax-free cigarettes on indigenous reservations was something within the legal framework, to the point that it was done, and continues to be done, in plain sight of the public, which could have confused Nombre01, since the prohibition on alleging ignorance of the laws refers to national laws and not foreign ones. That is, he could have had a mistake about facts constituting the crime of money laundering (legitimación de capitales) and not have knowledge, or intent (dolo), that the money was illicit, and without intent there is no subjective criminal type. He requests the reversal of the conviction and property confiscation judgment. In the fifth ground on the merits, the improper application of Articles 87 and 89 of Law No. 8204 is alleged regarding the seizure (comiso) of assets, because the crime of money laundering is not proven beyond all doubt, since the money received was not demonstrated to have come from a crime attributed to its owner, the company Nombre08, or its partner Nombre01. He requests the reversal of what was resolved on this point and that the assets be released, being returned to the defendant's patrimony. When answering the appeal, the Prosecutor's Office stated that said appeals should be dismissed because the situation of Nombre01 in the United States should not be weighed with the principle of in dubio pro reo; that the four million dollars that the defense says did not enter the accounts of the defendant here do appear in the accounting reports and in the expert report, and that, apart from the smuggling situation, it turns out that the serious crime from which the monies originated, according to the Prosecutor's Office and the proven facts, were those of murder for hire and others.

II.- Although these are two challenging briefs, divided, in turn, into several arguments, due to their close relationship with each other, they have been summarized and will be heard jointly, being declared with merit, in what will be said. In the first place, it should be noted that this Chamber is not competent to determine whether the phrase "whoever performs any other act" contained in numeral 69 of Law No. 8204 violates, or not, the principles of legality and legal reservation, contained in Articles 39 and 121 subsection 1 of the Constitution, since, in Costa Rica, constitutional review is of a concentrated type and is in the hands of the Constitutional Chamber (Sala Constitucional) (cf. Articles 4 and 73 of the Law of Constitutional Jurisdiction and 10 of the Political Constitution), so only that body is competent to make declarations, erga omnes, of unconstitutionality, nor can this Court do so even for the specific case (see, to this effect, the discussion held in the majority vote, number 1185-95 of the Constitutional Chamber, binding erga omnes under Article 9 of the Law of Constitutional Jurisdiction, on the interpretive scope of Article 8 subsection 1 of the Organic Law of the Judicial Branch). So, if the appellant has such a concern, he can raise it before that instance, following the procedure and formalities required by our Legal System. In the second place, from the summary made above, it can be inferred that only two of the arguments of both challengers relate to evidentiary issues, namely, the ownership of the money transferred from the United States to Nombre01 (whether it belonged to Nombre01, his wife, or a company and, in this latter case, if it affected anything that Nombre01 was only its legal representative and the person sentenced in the United States) and the issue concerning the right of abstention of the spouse of the former, not warned, despite incriminating documents being incorporated. However, this Chamber will defer the order of analysis of the arguments to —even apart from the correctness, or not, of what was resolved on those topics— make a ruling on the merits of the matter because, as will be indicated, the rest of the pleas require an exhaustive analysis of the crime of money laundering, both in its objective and subjective structure and in its genesis and regulation in Costa Rica, which allow the matter to be resolved, without needing to cover those topics, that is, even maintaining as hypothetically acceptable, for argumentative purposes, what the instance judgment said on the matter.

§1. The crime of money laundering is defined by the majority doctrine as a relational or linking crime (not as an autonomous crime), that is, it requires a connection with a prior criminal act (Cf. Nombre11. Technical and Criminal Policy Reflections on the Crime of Money Laundering. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26 and Nombre12 and BACIGALUPO, Silvina. Criminal Policy and Money Laundering. Nombre13, 2009, and the authors referenced there). This prior act can be defined by the legislator in very diverse ways (alluding to a list of crimes, to the seriousness of the sanctions, or, in much broader terms, assuming any other crime as possible), but it must exist, and that means that —if attributed to a particular subject— said subject must have been tried and found responsible, with finality, for the crime (unless this was not possible due to personal circumstances, grounds for exemption from punishment, in which case the demonstration of the criminal wrong (injusto penal) will suffice, provided this is not incompatible with the specific legislation of each country). Only when such a direct attribution is not possible (either because the perpetrator was not identified, because the perpetrator died, or because the criminal action was extinguished for certain reasons, excluding the statute of limitations for the criminal action because the validity of said action is necessary in both legislations, for the purposes of that assessment, unless there is a rule to the contrary, which is not the case here), can that prior act be demonstrated within the trial regarding money laundering, obviously based on the evidentiary rules of the judging country. As indicated, this is so in general terms and without ignoring that there are modern trends which, to circumvent the evidentiary issue of the prior 'serious crime' (in singular), prefer to allude, on the one hand, to 'criminal activity' (which implies shifting the emphasis on the level of prior accreditation that the different strata of the Theory of Crime must have, according to the system followed), making it possible for the crime to be committed by the same agent of the preceding event (which is not possible if considered a relational crime), and, on the other, to give this crime the nature of an autonomous illicit act, establishing a differentiated legal interest (which is no longer the administration of justice, as usually occurs in concealment crimes, but rather the socio-economic order) which some doctrinal sector has forcefully condemned: "...this generally unconfessed perspective, openly camouflaged under the generic formula of protecting the socio-economic order, has led to legal and interpretive perversions, which have not only led to an abusive application of money laundering types, but also, and paradoxically, have reduced the effectiveness of criminal types in relation to their criminal policy interest. The first perversion of this criminal policy idea consists of the expansion of the predicate offenses of money laundering to any crime, not even serious and including tax fraud. The second, related to the previous one and, like the previous one, based on the unconfessed attempt to elude the demands of proof in Criminal Procedural Law, has to do with the loss of secure contours of the typical element that the perpetrator acts with knowledge that the assets object of the laundering originate from a crime" (Cf. Nombre11. Technical and Criminal Policy Reflections on the Crime of Money Laundering. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the website: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, p. 66). With this, it is meant to be stated, from the outset, that this Chamber agrees with that author when he points out that: "...the intent (dolo) requires, therefore, knowledge of the specific risk or danger that a conviction exists, the only thing that can give content to the normative element 'crime' in the types of money laundering. The existence of a prior conviction is, then, an indispensable part of this normative element of the money laundering type, however much one wants to ignore it in doctrine and jurisprudence. The best demonstration that this is so is that the proof that the assets do not come from any crime, that is, that there is no conviction, must imply the acquittal of the supposed launderer due to objective atypicality of their conduct" (Op. cit., p. 78), for which reason it is truly nonsensical that a process for money laundering has been initiated in our country for proceeds from a prior activity that is not, per se, illicit, when the case that supposedly originated that event (the sale of cigarettes to non-indigenous persons without the prior payment of taxes) does not have, to this date (and much less on the date of the accusation), a final judgment in the country of origin, since the penalty that could eventually be imposed on Nombre07, brother of the accused here, in the United States of America for such conduct is still unknown, and without it being sufficient, to solve that issue (which is a normative element of the type, as was stated), the testimony of some people who mention the probable penalty that can be imposed on him, which, incidentally, due to that same national ignorance, they may not have been questioned and, therefore, may have omitted all the punitive particularities of the Anglo-Saxon system, such as the minimum extremes of that crime, which will be taken up later. Additionally, it is necessary to point out that, if the countries where the prior act was committed (understood as 'crime' or 'criminal activity', which is not just a matter of terminology but, as indicated, has important legal consequences) and the act of laundering being judged are different, there must be double identity or double criminality, that is, the prior act, from which the capital sought to be laundered is said to come, must also be a crime in that country where said laundering is being judged, and, unless there is express legislation regulating it otherwise, it must not be time-barred in either of the two. In this regard, national doctrine states: "The prior act from which the object of economic interest derives, in turn the material object of the crime of money laundering, must be at least typical and unlawful, that is, provided for as a crime in a criminal law and not protected by a ground for justification, without it being necessary for it to be culpable (limited accessoriness), that is, it does not require that the act be committed culpably by the prior perpetrator nor that it be punishable in general, except for exceptions. §261 of the German Criminal Code (StGB) explicitly says that the object of economic interest must come from a 'rechtwidrige Tat' (unlawful act). The death of the prior perpetrator, in a typical and unlawful act, has no influence regarding the prosecution of the money laundering crime. The prior act must be sufficiently concretized and determined. The prior act, which is apt to connect with the money laundering crime, must be punishable in the Costa Rican jurisdiction, and if it is located outside the national territory, it must also be punishable in the foreign jurisdiction. When the prior act has prescribed, the question arises whether prosecution for the money laundering crime is possible. The predicate offense must be punishable under Costa Rican Criminal Law, and a prescribed act in general is not. Some German authors consider that if the predicate offense is prescribed, it is an irrelevant fact for the prosecution of the money laundering crime. However, the majority German doctrine and almost the entirety of Swiss doctrine consider that when the prior act is already prescribed, a conviction for the money laundering crime is not possible. The reason for the foregoing is that the money laundering crime is a crime connected to the predicate offense, and if the State renounced its prosecution, it is not possible to prosecute the connected crime (...) It is not necessary that the perpetrator of the prior act be known or alive or, when the predicate offense occurred abroad, that there be a final judgment convicting for the prior act or that it be prosecuted by the competent foreign authorities (...) I believe it is necessary for the Court to determine the existence of the prior act and its typical and unlawful character, without a mere suspicion that the object comes from a punishable act being sufficient. The establishment of proof of the prior act can be done by a final judgment, if it was heard by a competent authority. If this evidence is lacking, the typical and unlawful character of the prior act, which is a normative element of the money laundering type, can be proven. This proof must be done by the judge hearing the money laundering crime in the country, in accordance with the criteria of freedom of evidence and free assessment of evidence. In any case, the establishment of the prior act by the national judge as a normative element of the criminal type of money laundering does not imply issuing a judgment on national soil about the prior act that occurred abroad" (Nombre14. The Crime of Money Laundering. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 91-94; emphasis supplied). A thesis that, in principle and except in what will be said, this Chamber shares, with the caveats that although German legislation may require a criminal wrong for the prior act, this is not unanimous in all legal systems, as many allude to 'crime', and one must abide by what each regulates, on the one hand, and, on the other, that we do consider it necessary that, if the act is deemed to have been committed abroad, a process has been or is intended to be followed, and, if there has been one, the foreign conviction judgment is provided (which is not a procedural prerequisite but a normative element of the type), unless, as already stated, it is impossible to determine the perpetrator or personal causes for exclusion of punishability have arisen, because, otherwise, an illegal trial of the prior act would occur by an incompetent authority. On the other hand, both crimes, that is, the base act and the linking crime, must have a logical relationship with each other, because, however much a prior act is criminal in two different jurisdictions and all the legal provisions are met to validly consider it as a predicate offense (that is, it has the minimum penalty amount or is on the list of those stated as such by the legislator), if there is no logical nexus of connection between the prior event and the subsequent one, it would be wrong to try to seek any sanction: "The nature of the union between the asset suitable for laundering and the prior act is another problem to be resolved. A doctrinal sector admits that the connection between both must be of a causal type. This seems logical to the extent that the assets susceptible to being laundered must have their origin, their cause, in a prior criminal act, derive from it (...) it seems then necessary to set limits, that is, to determine the criteria that produce the rupture of the causal union. This way of reasoning leads us to the analysis of a series of criteria, as a consequence of which an interruption of the causal nexus can occur, determining that the assets can no longer be considered as coming from the prior act. This need for limitation is linked to the fact that the question of provenance would ground a regresus ad infinitum, in principle not admissible. An essential part of the legal economy could be considered contaminated in a short period of time as a consequence of an excessively broad and unlimited interpretation of the criterion of provenance or origin. This situation has been criticized by Swiss doctrine for being contrary to the constitutional guarantee of property acquired in good faith" (Nombre15, Isidoro. The Crime of Money Laundering. Aranzadi, 3rd edition, 2012, p. 341). This requires establishing both objective limits prior to the possession of the presumably laundered object, and subsequent ones, a topic for which the theories of equivalence of conditions, adequacy, and objective imputation have been used to determine, in cases of mixing licit and illicit assets, whether total contamination, total decontamination, partial contamination, etc., apply. In what interests us here, for now, it is clear that, for example, if a millionaire drives drunk in their country and that conduct is punishable by imprisonment, the transfer of millions of dollars to another country, however much they intend to evade the criminal (fine) or civil (liability) consequences derived from that driving, could not be considered money laundering, because the money did not originate in the crime but pre-existed, and, therefore, the evasion of liability cannot be sanctioned using the crime that concerns us. On the other hand, by virtue of the principles of innocence and non bis in idem, if the prior act was tried abroad and the accused person was acquitted or the judgment had it as demonstrated that the illicit act was not committed, it is not feasible for it to constitute a basis for a subsequent money laundering, nor is it possible for the national courts to hear it again, with new evidence or by reassessing in a different way what was weighed there, because the principle of material res judicata, guaranteed both by our Political Constitution (numeral 42) and by international human rights instruments signed by the country (see Articles 8.4 of the American Convention on Human Rights and 14.7 of the International Covenant on Civil and Political Rights), would be affected. This, in general terms, because a specific analysis must be made of the applicable criminal type to the factual species submitted for our consideration, to determine if all those doctrinal criteria can be extrapolated to domestic law and if the selected criminal type contains other important elements (principle of legality). To do this, it is necessary to determine which criminal law is applicable to this matter, given that there have been Nombre09 several that regulate the topic.

§2. Law applicable to this case and objective elements of the type: (a) In Costa Rica, before 1988, there was no crime similar to the one under discussion, neither in name nor in elements; rather, criminal legislation, mostly collected, as it should be, in the Penal Code —and not scattered, as now, in multiple special laws— only provided for some concealment crimes, such as receiving stolen property (receptación), receiving property of suspicious origin, real and personal facilitation (cf. Articles 330 to 332 of the Penal Code, renumbered by Laws No. 7732 and 9048 and according to the SINALEVI system). (b) It is with Law No. 9093, of April 22, 1988 (published in Supplement No. 16 of La Gaceta No. 83 of May 2, 1988), Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use and Related Activities, where, for the first time, this topic is regulated in a manner very similar to the current one, in Article 15, which stated: "Imprisonment of eight to fifteen years shall be imposed on whoever carries out any act or contract, real or simulated, of acquisition, possession, transfer, or disposal of assets, aimed at hiding or concealing the origin of economic resources obtained through the illicit trafficking of drugs or crimes related to that activity, regardless of the place where the illicit act may have been committed. When the act has been committed abroad, its commission may be accredited by any means" (emphasis supplied). Note how this first regulation circumscribed the scope of application of money laundering to those obtained from activity related to drug trafficking. What should be understood by drug? Article 1 of that law made a reference to substances that cause dependency. However, although there are many substances that cause it (including alcohol, tobacco, some sodas, and even coffee), it was not the medical-cultural criterion that should be used to unravel the meaning of the term, but rather "drugs" is a normative concept, of a legal type, that must be filled based on legal definitions adopted by the country and which, because they exist, are restrictive and prevail over cultural criteria (Article 1 of the Penal Code). Thus, the Single Convention on Narcotic Drugs (signed by Costa Rica on March 30, 1961, and incorporated into the national legal system through Law No. 4544 of March 11, 1970) established several lists (I, II, III, and IV) of substances subject to state control, among which tobacco, which is what was traded here and from whose sale the profits base to this process originate, was not mentioned. It should be added that this international regulation already alluded to crimes related to drugs and narcotics as "serious crimes," without defining this term (see Articles 36.1; 36.2.a.iv). Nor was anything expressed regarding tobacco in the Protocol Amending the Single Convention on Narcotic Drugs (signed by our country on March 25, 1972, and incorporated into the national legal system through Law No. 5168 of December 26, 1972); in the Convention on Psychotropic Substances (signed by Costa Rica on May 31, 1972, and incorporated into the national legal system through Law No. 4990 of June 10, 1972); nor, finally, in the United Nations Convention against Illicit Traffic in Narcotic Drugs or Psychotropic Substances (signed by Costa Rica on April 25, 1989, and incorporated into the national legal system through Law No. 7198 of November 1, 1990). (c) That first law against drug trafficking was reformed through Law No. 7233 (Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use and Related Activities, published on May 21, 1991), which, in its numeral 17, established: "Imprisonment of eight to twenty years shall be imposed on whoever intervenes in any type of contract, whether real or simulated, of alienation, investment, pledging, assignment, conversion, transfer, safekeeping, or concealment of the nature, origin, location, destination, or circulation of profits, things, values, securities, or assets coming from the criminal acts typified in this law or from the economic benefit obtained from said crimes, provided that they were aware of that origin and tend with those actions to hide or conceal the origin of the resources or to elude the legal consequences thereof, regardless of the place where those illicit acts may have been committed. The personal facilitation of the crime established in this article shall be sanctioned with the penalty indicated for the perpetrator. When drug trafficking or the crimes related to that activity, even those referring to the conducts typified in this article, have been executed abroad, their respective demonstration may be accredited by any means of proof, provided that the guarantees established in national legislation and in the international conventions accepted by Costa Rica for the protection of the rights of the accused are respected. The banks of the National Banking System must render the reports related to the conducts typified in this article, which are requested by the Public Ministry or the judges of the Republic, even in the preparatory instruction phase. The judges may also order that any documentation or means of proof that the banks have in their possession be delivered to them, when necessary for an investigation. The resolution that agrees to the foregoing must duly substantiate the necessity of the report or the contribution of the evidentiary means" (emphasis supplied). In this legislation, the article no longer referred to a normative-legal concept not contemplated in the rule, but rather, expressly, therein money laundering (legitimación de bienes) was related to the other crimes typified there, among which, it should be noted, there was none alluding to the tobacco trade or different from drug trafficking.

(d) Law No. 7786, in force since its publication on May 15, 1998, pronounced itself in a similar sense, which, in its numeral 1, circumscribed the scope of action of said regulation to activities related to the substances described in those international instruments (within which, as already stated, tobacco was not included) as it indicated: "This law regulates the prevention, use, possession, trafficking, and commercialization of narcotics, psychotropic substances, inhalable substances, and other drugs and pharmaceuticals susceptible to producing physical or psychic dependence, included in the United Nations Single Convention on Narcotic Drugs of May 30, 1961, approved by Costa Rica through Law No. 4544 of March 18, 1970, amended in turn by the Protocol Amending the Single Convention on Narcotic Drugs, Law No. 5168 of January 8, 1973; as well as in the Vienna Convention on Psychotropic Substances of February 21, 1971, approved by Costa Rica through Law No. 4990 of June 10, 1972; likewise, in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of December 19, 1988, approved by Costa Rica through Law No. 7198 of September 25, 1990; additionally, the regulations on this matter that are approved to be included in the lists that the Ministry of Health must prepare, keep updated, and publish annually in La Gaceta. Furthermore, the control, inspection, and supervision of activities related to inhalable substances, drugs, or pharmaceuticals and of the products, materials, and chemical substances involved in the elaboration or production of such substances are regulated; all of this without prejudice to what is stipulated on this matter in the General Health Law, No. 5395 of October 30, 1973. In the same manner, financial activities are prevented and sanctioned, as a way to avoid the penetration of capital originating from crimes of illicit trafficking and other related offenses and of all procedures that may serve as means to legitimize capital from drug trafficking. It is a function of the State and is declared of public interest to adopt the necessary measures to prevent, control, investigate, avoid, or repress all illicit activity related to the subject matter of this law" and which, in its numeral 72, criminalized: "Shall be sanctioned with a prison sentence of eight to twenty years whoever: a) Converts, transfers, or transports assets of economic interest that proceed, directly or indirectly, from the illicit trafficking of narcotics, psychotropic substances, or related offenses, to hide or conceal their illicit origin or help, through such conversion, transport, or transfer, any participant in the commission of one of these crimes to evade the legal consequences of their acts. b) Hides or conceals the nature, origin, location, destination, movement, or true ownership of resources, assets, or rights related to them, knowing that they proceed directly or indirectly from the illicit trafficking of narcotics, psychotropic substances, or related offenses. The sentence shall be ten to twenty years when the preceding acts are committed by employees, officials, directors, owners, or other authorized representatives of financial institutions" (emphasis added). Said law was in force until January 10, 2002.

(e) On January 11, 2002, Law No. 8204, called "Comprehensive Reform of the Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use, Money Laundering (legitimación de capitales), and Related Activities," was published in La Gaceta No. 8. This body of articles had the particularity of broadening the criminal spectrum it regulated, as its Article 1, in addition to referring to the substances mentioned in those international conventions accepted by the country, mentions, in the fourth and fifth paragraphs: "Furthermore, financial activities are regulated and sanctioned, with the aim of preventing the penetration of capital originating from serious crimes (delitos graves) and of all procedures that may serve as means to legitimize said capital. For the purposes of this Law, serious crime (delito grave) shall be understood as conduct that constitutes a crime punishable by a deprivation of liberty of four years, as a minimum, or a more severe penalty" (boldface added). In such context, numeral 69 stated: "Shall be sanctioned with a prison sentence of eight to twenty years: a) Whoever acquires, converts, or transmits assets of economic interest, knowing that these originate from a serious crime (delito grave), or performs any other act to hide or conceal the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts. b) Whoever hides or conceals the true nature, origin, location, destination, movement, or rights over the assets or the ownership thereof, knowingly that they proceed, directly or indirectly, from a serious crime (delito grave). The sentence shall be ten to twenty years of imprisonment when the assets of economic interest originate from any of the crimes related to the illicit trafficking of narcotics, psychotropic substances, money laundering (legitimación de capitales), diversion of precursors or essential chemical substances, and related crimes" (emphasis not original). Of course, legislative activism did not stop there, but rather three additional regulatory changes occurred that are important to review:

(f) On October 29, 2004, the Law against Corruption and Illicit Enrichment in Public Office No. 8422 of September 14, 2004, was published in La Gaceta No. 212, which, in its Article 47, referred to: "Receiving, legalizing, or concealing assets. Shall be sanctioned with imprisonment of one to eight years, whoever hides, secures, transforms, invests, transfers, custodizes, administers, acquires, or gives the appearance of legitimacy to assets or rights, knowingly that they have been the product of illicit enrichment or criminal activities of a public official, committed on the occasion of the office or through the means and opportunities it provides." That is to say, a crime of money laundering (legitimación de capitales) originating specifically from functional crimes was created.

(g) Likewise, in Supplement No. 29 to La Gaceta No. 143, on July 24, 2009, the Law against Organized Crime No. 8754 was published, in whose Article 1 it was indicated: "Interpretation and Application. Organized crime shall be understood as a structured group of two or more persons that exists for a certain time and acts concertedly with the purpose of committing one or more serious crimes (delitos graves). The provisions of this Law shall apply exclusively to investigations and judicial proceedings in cases of national and transnational organized crime crimes. For everything not regulated by this Law, the Penal Code, Law No. 4573; the Criminal Procedure Code, Law No. 7594, and other concordant laws shall apply. For the entire penal system, a serious crime (delito grave) is one that, within its range of penalties, can be sanctioned with imprisonment of four years or more" (boldface added). Regarding this regulation, it is worth commenting that it defined ‘serious crime’ (delito grave) as that punished with a penalty of four years or more, regardless of in which range of the punitive scale this amount lay (minimum or maximum extreme), but rather it sufficed that the act could be punished with such a sanction. However, the article is contradictory because, on one hand, it states that this definition is for the entire penal system when, immediately before, it had referred to the fact that the provisions of this regulation would only apply to cases of organized crime. This law arose due to the obligations contracted by the Costa Rican State upon signing the United Nations Convention against Transnational Organized Crime, known as the Palermo Convention, adopted on November 15, 2000, and approved through Law No. 8302, published in La Gaceta No. 123 of June 27, 2003. This international instrument, in Article 2.b), defined 'serious crime (delito grave)' in the following manner: "...shall be understood as conduct constituting an offense punishable by a maximum deprivation of liberty of at least four years or a more serious penalty" (underlining is external) which is a contradiction because if it is a maximum penalty, it cannot be affirmed to be "at least" or that it can be a higher penalty. In any case, both laws are subsequent to the charges that concern us here and, as will be seen, are not more beneficial for the accused, so they cannot be applied retroactively (Articles 11 and 12 of the Penal Code and 34 of the Constitution).

Lastly, (h) Article 2, point 1, subsection a) of the Law for Strengthening Legislation against Terrorism, No. 8719 of March 4, 2009 (published in La Gaceta No. 52 of March 16, 2009, and in force since then), changed the name of the law that occupies us so that, henceforth, it would be called "Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use, Related Activities, Money Laundering (legitimación de capitales), and Financing of Terrorism," the content of Article 1 being reformed by said law, where the reference to and definition of 'serious crime (delito grave)' is suppressed in order to, instead, broadly establish that, with said law: "Furthermore, financial activities are regulated and sanctioned, with the aim of preventing money laundering (legitimación de capitales) and actions that may serve to finance terrorist activities, as established in this Law." For its part, in Article 2, point 1, subsection b) of the referred Law No. 8719 of March 4, 2009, the content of numeral 69 was modified to read as follows: "Shall be sanctioned with a prison sentence of eight (8) to twenty (20) years: a) Whoever acquires, converts, or transmits assets of economic interest, knowing that these originate from a crime that, within its range of penalties, can be sanctioned with a prison sentence of four (4) years or more, or performs any other act to hide or conceal the illicit origin, or to help the person who has participated in the infractions to evade the legal consequences of their acts. b) Whoever hides or conceals the true nature, origin, location, destination, movement, or rights over the assets or the ownership thereof, knowingly that they proceed, directly or indirectly, from a crime that within its range of penalties can be sanctioned with a prison sentence of four (4) years or more. The sentence shall be ten (10) to twenty (20) years of imprisonment when the assets of economic interest originate from any of the crimes related to illicit trafficking of narcotics, psychotropic substances, money laundering (legitimación de capitales), diversion of precursors, essential chemical substances and related crimes, conducts classified as terrorist, in accordance with current legislation, or when the purpose is the financing of acts of terrorism and terrorist organizations" (emphasis added). In this last regulation, money laundering (legitimación de capitales) in a chain (proceeding from a prior crime of the same nature) was regulated, unnecessarily given the definition of 'serious crime (delito grave)', and a legislative erratum was needed to correct some internal defects (see publication in La Gaceta No. 63 of March 31, 2009), which speaks volumes about the criminal policy and penal technique it incorporated.

It is true that, in addition to the law, many of the cited international instruments, ratified by the Costa Rican State, established the state obligation to repress money laundering (legitimación de capitales) or asset laundering, but the assumption of an international obligation does not, ipso facto, generate the creation of penal norms, since these require a formal law, that is, emanating from the Legislative Assembly, following the procedure set for that purpose by the legal system and the establishment of a specific penalty per conduct, none of which those conventions have, which allude to the need to impede certain conducts, define them, and may recommend punitive frameworks, etc., without meeting those requirements derived from the Principle of Penal Legality.

From the preceding "legal archaeology," the following can be extracted as first important conclusions for the matter at hand: (i) The crime of money laundering (legitimación de capitales) did not exist in Costa Rica until May 2, 1988, because, before that date, what was regulated in the Penal Code were crimes of concealment, without many of the conducts aimed at diverting the proceeds of crime, now listed in other special provisions, being foreseen; (ii) From May 2, 1988, until January 10, 2002, the only money laundering (legitimación de capitales) that was penalized was that arising from the commerce of drugs, narcotics, or psychotropic substances, those substances not including all those that generate addiction, but only those internationally listed and within which tobacco was not foreseen; (iii) As of January 11, 2002, the punitive spectrum was broadened to sanction money laundering (legitimación de capitales) from 'serious crimes (delitos graves)' and this term was legally defined (normative-legal element of the criminal type) as any crime that had a minimum extreme of four years of imprisonment, which was maintained until March 15, 2009, except for assets originating from crimes committed by public officials, taking advantage of their positions, which, from October 29, 2004, to date, came to be regulated in an independent regulation that, incidentally, despite the proclamations set forth in the Statement of Motives of the bill, rather notably lowered the penalty for this event; (iv) As of March 16, 2009, money laundering (legitimación de capitales) can originate from any crime sanctioned with imprisonment of four years or more (except, as already stated, for functional crimes regulated more benignly in the special regulation), regardless of whether this is, or is not, the minimum or maximum extreme of the sanction, but it suffices that, in the abstract punitive range, this is one of the possible penalties to be imposed.

This recount is of special importance in this matter, given the principle contained in Article 11 of the Penal Code, derived from the old maxim nullum crimen nulla poena sine previa lege, according to which "Punishable acts shall be judged in accordance with the laws in force at the time of their commission" except, of course, if later laws are enacted that are more favorable for the accused (Article 12 of the Penal Code) which, let it be said at once, does not occur in this case because, as can be seen from the recount made, not only did the later laws maintain the same penalty or increase it, compared to the previous ones —saved the case of functional crimes, not applicable to this case— but they also broadened the normative spectrum of the prior acts that can give rise to money laundering (legitimación de capitales). Likewise, because, by virtue of the principle of correlation between accusation and sentence (Article 365 of the Criminal Procedure Code), only the acts charged could be considered proven.

It was thus that the proven facts of the judgment, keeping the charges unaltered, state, in what is relevant: "As proven facts of interest for the resolution of this matter, the Trial Court lists the following: 1) Between the years 1996 and 2004, Nombre07 -brother of the accused Nombre01- was investigated, significant evidence against him was gathered, and he was charged for activities typical of organized crime in New York, United States, among which are the commission of crimes of contract killing, assault, kidnapping, arson, robbery, extortion, and tax evasion, with the purpose of promoting the commercial activity of his company P, a business selling tax-free cigarettes located in the […] reservation and consequently with the sales limitations imposed by such location. 2) With the execution of the cited criminal acts, the organization led by Nombre01, boosted the commercial activity of the company P, thus obtaining -illicitly- large sums of money that were later sent via bank transfers to Banco de Costa Rica with the purpose of evading the consequences of such illicit acts of contraband. 3) In the year 2000, the Eastern District of New York District Attorney's Office initiated an investigation against Nombre07 for violations of the Law on Corrupt Criminal Organizations based on the illegal sale of tax-free cigarettes outside the described indigenous reservation and which operated in Long Island, New York. 4) Between the year 2000 and the year 2004, Nombre07, knowing of the investigations being conducted against him, transferred his income held in Banco Nombre09 of Mastic, New York, United States to the account in his name, number […] and to account number […] in the name of the accused Nombre01, both at Banco de Costa Rica. 5) Added to the sending of money, Nombre07 on October 3, 2000, established in our country a Dollar Growth Fund in the Sociedad Administradora de Fondos de Inversión of Banco de Costa Rica that, by August 12, 2004, maintained an accumulated fund for the sum of US$10,350,248.00. 6) On July 17, 2000, in San José Centro, before Notary Public Juan José Picado Herrera, Nombre07 and the accused Nombre01 appeared, and by deed one hundred thirty-two of volume twenty-nine of the protocol, Nombre07 conferred a General Power of Attorney without limit of sum to the accused Nombre01, for all his businesses, denoting the trust and closeness between the two. 7) On August 2, 2004, Mr. Nombre07 was arrested in New York on the occasion of the said charges and was sentenced to a term of 10 years in prison for the crime of possession of a prohibited weapon, which he is currently serving in New York. 8) Between the years 2002 and 2004, the accused Nombre01, received from Nombre07 and maintained in his savings account at Banco de Costa Rica number […] the sum of US$16,783,980.00 (sixteen million seven hundred eighty-three thousand nine hundred eighty United States dollars). In said account on August 6, 2004 –knowing of the arrest his brother was suffering and of the illicit origin– the accused Nombre01 received, to conceal, the sum of $4,400,000.00 (four million four hundred thousand dollars, US currency) a transfer made by TMG Nombre16 PARTNERS, a company linked to Nombre07. 9) On August 12, 2004, the accused Nombre01 requested from the Sociedad Administradora de Fondos de Inversión (SAFI) of the BCR, the redemption for the sum of US$10,350,248.00 (ten million three hundred fifty thousand two hundred forty-eight United States dollars) from the Dollar Growth Fund in the name of Nombre07, for which he provided the express request in this regard signed by Nombre07 on August 11, 2004. With such money under his control, the accused Nombre01 deposited it into his savings account […] to later constitute a Dollar Growth Fund in his name for the said global sum. 10) With such actions, the defendant Nombre01 managed to accumulate the total sum of $14,750,248.00 (fourteen million seven hundred fifty thousand two hundred forty-eight dollars US currency) which he concealed to prevent the U.S. authorities from pursuing and seizing the money originating from the illicit activity of Nombre07. 11) Once the accused Nombre01 managed to have in his name the totality of the funds transferred by Nombre07 and following his instructions, beginning in 2007 he proceeded to dispose of the money of illicit origin, through the acquisition of movable and immovable property located in the province of […]. 12) The assets that the accused Nombre01 acquired under this criminal modality are (...) 13) The money laundered (legitimados) by the accused Nombre01 and the acquisition of the movable and immovable property acquired by him, harmed the socio-economic order of the Costa Rican State" (cf. folios 846 to 848; emphasis added).

Note, then, how from the proven facts three topics of interest arise: 1)- the defendant is accused of receiving money from his brother, money whose origin, according to the accusation, came from activities relating to organized crime in New York, United States, among which were the commission of crimes of contract killing, assault, kidnapping, arson, robbery, extortion, unlawful possession of a weapon, and tax evasion. However, of all those charges, it must be said here that the defendant's brother was convicted, finally and firmly, only for the unlawful possession of the weapon (according to the jury verdict of May 1, 2008: see document 897, p. 2 of the assistance file 11-91-1035-PE, folio 348) and although on that same occasion he was convicted by the jury for the tax evasion on cigarettes, upon his appeal, District Judge Denis R. Hurley dismissed the charges on April 16, 2010, and acquitted him, alleging the reasonableness of Nombre07 being unaware of the applicability of the law (see documents from folios 352 to 371, translation file for penal assistance 11-91-1035-PE, Volume II) and later, a state appeal meant that, as of July 16, 2012 (moments before the development of this hearing), the Court of Appeals for the Second Circuit of the United States, composed of judges Guido Calabresi, Denis Chin, and Susan L. Carney reinstated the jury's 2010 verdict (see documents from folios 672 to 726/Volume II), the sentencing for that fact still pending, as of this date, which denotes, prima facie, the debatable nature of the point in question.

The cited doctrine makes a differentiation between "illegal money," also known as "dirty money," which is that originating from criminal activities per se and whose subsequent laundering (legitimación) is called 'recycling' or 'washing', and the notions of "tainted funds" or "black money" that proceeds from licit productive activities, with the consequent evasion of tax effects, and whose laundering process is alluded to by the name of 'money whitening'. Therefore, to situate ourselves at once, based on the proven facts and the final acquittal judgment of Nombre07 for the crimes of extortion, homicide, arson, etc., whose factual basis cannot be used in another matter without contravening the principle of res judicata, here we are facing 'whitening' operations of 'black' or 'tainted money' and not the first phenomenon. Although the topic of criminal organizations is mentioned, the facts cannot be judged under the protection of the national regulation governing organized crime (both in the law and through conventional ratification) since it had not been approved by then, and, as if that were not enough, the defendant's brother was finally and firmly acquitted of the remaining crimes alluding to that topic (see document 904 from Nombre17 evidence file 3 provided by the defense, official translation, at folio 113). It is important to emphasize this because, even the prosecutor, in the oral hearing held in this office, referred to the other crimes, which constitutes, at the very least, a regrettable omission on her part, especially considering that it was the same prosecutor who attended the hearing and directly experienced the evidence, so the duty of objectivity incumbent upon her (Article 63 of the Criminal Procedure Code) would oblige her, at least, to leave it thus mentioned, which she not only did not do but tried to disregard with the mere reference to the U.S. prosecutorial charges; 2)- the defendant was accused of receiving money from his part, originating from those activities, and subsequently investing it; 3)- it was considered proven that Nombre07, the defendant's brother, transferred to the country, between 2002 and 2004, a little over sixteen million dollars, leaving some sums in his name and others in the accounts of the accused here, to whom, on July 17, 2000, he granted a general power of attorney without limit of sum for the administration and disposal of his assets. With part of that money, on October 3, 2000, a dollar growth fund was constituted in Banco de Costa Rica and, approximately four million dollars of that sum were transferred on August 6, 2004, the date on which the defendant's brother was arrested in the United States. On August 12, 2004, the defendant redeemed that fund, transferring the money to accounts in his name, it not being until after 2007 that Nombre01 began to invest part of that money in the acquisition of various types of movable or immovable property, which he registered both in his own name and in the name of companies where he appeared as the majority shareholder.

Relating the charged and accredited facts with the normative recount made above, it must be said, then, that any event of that accusation, referring to money acquired, administered, and disposed of from the illegal sale of tobacco, attributed to the defendant before January 10, 2002, is atypical. In this condition is the period beginning in the year 2000 up to that date, since he was never accused that this money originated from crimes related to drugs or narcotics, the only crimes that, at that time, could form the basis for money laundering, but rather the attribution is the tobacco activity and its tax-free sale, which is what, definitively, must be assessed in this case. As already stated, for the remaining crimes, the accused's brother was finally and firmly acquitted, and the offense of possession of a single firearm without a permit is not an apt fact to generate money laundering (legitimación de capitales), even if it has a broad punitive range in the country of origin that would allow it to be considered a 'serious crime (delito grave)', since it would lack a causal relationship with the obtaining of the money intended to be laundered. This, it is insisted, in the case of a single weapon, because it could be different if an entire arsenal were alluded to, which supposes its subsequent commercialization, which is beyond the factual hypothesis of this matter.

Likewise, given that the last accredited facts occurred in 2007 (when he disposed of the assets), it is not possible to apply the subsequent regulation to the defendant, i.e., the reforms introduced through Law No. 8719 of March 4, 2009, which modified the content of numeral 69 of Law No. 8204, and which stated that money laundering (legitimación de capitales) could originate from any crime sanctioned with imprisonment of four years or more, regardless of whether this was, or was not, the minimum extreme of the sanction, but rather it sufficed that it fell within the punitive range, as this is a later, more harmful norm. In other words, the law applicable to the acts occurring after January 10, 2002 —all the remaining charged acts— is that which expressly states that a 'serious crime (delito grave)' is one that has a minimum penalty of four years. Therefore, the assertion contained in the lower court's judgment is not acceptable, according to which "... By virtue of the validity of norms over time as provided in the Penal Code, the norm applicable to the facts under examination is that in force from the year two thousand two to the year two thousand four, that is, the one that links the assets being laundered with a serious crime (delito grave), without that concept of gravity being attached to a penalty" (cf. folio 935; emphasis added), because, although the applicable law was correctly selected, it was not analyzed in its entirety, that is, in relation to Article 1 of that same regulation, where the seriousness of the crime was indeed linked to a penalty amount that, inclusively, the legislator expressly established must be the minimum extreme of each criminal type.

Having extracted the two preceding conclusions, it must be added that the entire reasoning of the Trial Court, considering tax evasion on cigarettes as the prior crime (and not possession of the weapon which, it is insisted, lacks a causal link to the fact that occupies us; nor the other acts for which the defendant's brother was prosecuted and acquitted) was based on that: "...in the case of the crime of contraband that it points out, whose maximum penalty is five years, it does meet the requirement of having a maximum penalty greater than four years. In the Tribunal's opinion, the norm that corresponds in our legal system to comply with the Principle of Double Imputation is Article 92 of Law No. 4755 of May 3, 1971, Tax Norms and Procedures Code, which sanctions with a penalty that corresponds to the crime attributed to him in the charges brought against Nombre07 since the year (sic) that is, that the money coming from the contraband of cigarettes attributed to Nombre07, originates from a serious crime (delito grave) that is also contemplated in the Costa Rican legal system, so the argument of the defense counsel in the sense that the Conventional Principle of double imputation is not met is not admissible; and on the contrary, the Tribunal considers it a fact certainly demonstrated that the money sent to Banco de Costa Rica by Nombre07, originated from a serious crime (delito grave) contemplated by the Costa Rican penal system" (cf. folio 936, emphasis added). Note how the same judges of the lower court point out that the conduct of Nombre07, in the United States, has its equivalent, in Costa Rican legislation, in that crime, which has a maximum sanction, not a minimum, greater than five years, which would imply that the mentioned requirement is not met because, as will be said, the abstract minimum sanction is less than four years, none of which the trial court mentioned.

Nor did the trial court conduct any analysis of whether Nombre01's act could be considered 'serious' under U.S. law, that is, whether it was punishable there with a minimum abstract penalty of [Nombre01] years, which was important for the purposes of the referenced dual criminality. It should be recalled that, due to the urgency of the national investigation, the derived case progressed more quickly than the base case, and as of the date of this decision, there is no official record that a penalty has been imposed on Nombre01 in the United States of America for that act, which, moreover, is unknown whether it is a 'serious crime' under the terms defined by our regulations. To resolve that issue, it is not enough to say that Nombre01, the brother of the accused, while the national process was developing in parallel, specifically on July 16, 2012, was found guilty of illegal possession—that is, without prior payment of taxes—of cigarettes in the United States, at which time the Court of Appeals for the Second Circuit granted a government appeal against the ruling of Judge Hurley of the District Court for the Eastern District, who, in turn, in January 2010, had dismissed the jury conviction he had received in May 2008. And it is not enough because the witnesses reported that he still has a sentence pending imposition. Although the judgment mentioned that: "The penalty to be imposed for this crime (…) according to Nombre18 could be up to 20 years in prison" (see folio 897), nothing was said about the minimum limits that, under that country's legislation, that sanction could have, which has not yet been imposed, a fact that is highly relevant, as will be seen. Nor was any evidence provided regarding the scope of foreign legislation, which, as determined by Article 30 of the Civil Code (applicable to this matter as provided by numeral 14 of that same regulation), which states: "He who bases his right on foreign laws must prove their existence," should have been done, as it concerns foreign regulations that must be proven by the party using them, which, in this case, is the [Nombre17] Costa Rican State through the prosecuting entity, given that the accused is protected by his constitutional status of innocence (Article 39 of the Constitution). Furthermore, if one analyzes the statement that served as the basis for that information from the Court, that is, the one given by Nombre19 (see folios 850 to 855), an assistant attorney in the United States, it is found that she specifically stated the following on this topic: "I am an assistant attorney in the United States, I am responsible for representing the Government in civil and criminal cases (...) my position is similar to a prosecutor but at the federal level, we investigate federal crimes, the prosecutor is at the state level (...) Mr. Nombre01 is accused of being part of this organization, he also committed violent crimes to help in this business (...) the trial lasted (sic) until May 2008, the jury found him guilty of the conspiracy that was based on cigarette smuggling, also of possessing weapons, on the other charges the jury found him not guilty, after the jury gave the verdict, in the American (sic) system the defendant can ask for the charge to be dismissed (...) the judge had dismissed the matter related to the conspiracy (sic), when the sentence was given the only thing left was the charge for carrying (...) Judge Hurley eliminated (sic) the verdict saying he was not guilty of the smuggling conviction, the United States (sic) took this decision to a higher court, our proceedings take place in the District Court, the appeal was in the Court of Appeals, in July of this year the Court of Appeals annulled (sic) Judge Hurley's verdict and the decision was obtained in July 2012, the charges made against him for smuggling were reinstated, a new sentence has not yet been given, but he will receive this sentence for the smuggling acts, this judge's decision establishes Nombre01 as guilty of the crime of smuggling, this decision confirmed (sic) the jury's decision, there is no new trial, what the jury established in May 2008 is simply reinstated, the sentence has not yet been made, what he faces is a penalty of up to twenty years in prison (...) In fact this case is not in New York City, in federal law there is a law that refers to smuggling, it is the CCTA Law, under federal law it is a crime to possess cigarettes that do not pay taxes, at the time of the case it was possessing more than 360 thousand cigarettes, not paying taxes on the cigarettes makes them illegal to possess, possession of cigarettes that have not paid the tax is smuggling, the act of smuggling is up to 5 years, but in the case of Mr. Nombre01 he was accused (sic) of extortion and part of the extortion was smuggling, in the pending crime the penalty will be for extortion, they are called acts that refer to the crime (...) the crimes where the jury declared (sic) Nombre01 innocent, these cases cannot be appealed further, but I believe that Judge Hurley would consider the robbery and the murder as part of the conspiracy, there are laws in the United States and New York for tax evasion" (emphasis supplied). That is, the witness relied on her own speculation and did not report, since no one inquired her about the matter, on the punitive limits of the crime of smuggling, mentioning, based on her position within that country's criminal process, two very different punitive amounts: five and up to twenty years, but without indicating the abstract minimum provided for in the law, which is what our law requires, and alluding to acts for which the accused was acquitted as if he had been convicted, aspects that speak not only to her credibility but to the impossibility of using her testimony to prove what is missing in our jurisdiction, since doing so would violate the principle of res judicata. Indeed, if it is valid in the United States of America to use the circumstances of a person's acquittal as relevant facts to impose a penalty for another crime, the same cannot be said in Costa Rica, where numeral 8.4 of the American Convention on Human Rights (not signed by that country) states: "An accused person acquitted by a final judgment shall not be subjected to a new trial for the same acts," so that the amount of the abstract penalty to be imposed could not consider aggravating factors derived from conduct for which he was acquitted. In any case, the reference made by the judges, as already stated, was only to whether the equivalent act in Costa Rica was a serious crime, and they assumed it was, alluding to a maximum penalty of five years. However, that information, underlined above in the transcription, appears to be an error by the trial court, since Article 92 of the Code of Tax Norms and Procedures (amended by numeral 2 of Law No. 7900 of August 3, 1999, and before the reform by Article 1 of Law No. 9069 of September 10, 2012, "Law for the Strengthening of Tax Management," later and more detrimental), stated: Article 92.- Inducing error in the Tax Administration. When the amount of the defrauded sum exceeds two hundred base salaries, whoever induces error in the Tax Administration, through data simulation, distortion or concealment of true information, or any other form of deception suitable to induce it into error, with the purpose of obtaining, for oneself or for a third party, a patrimonial benefit, an exemption, or a refund to the detriment of the Public Treasury, shall be sanctioned with imprisonment of five to ten years. For the purposes of the provisions of the preceding paragraph, it shall be understood that: a) The defrauded amount shall not include interest, fines, or sanctioning surcharges. b) To determine the mentioned amount, if dealing with taxes whose period is annual, the quota defrauded in that period shall be considered; for taxes whose periods are less than twelve months, the amounts defrauded during the period between January 1 and December 31 of the same year shall be added together. For other tributes, the amount shall be understood as referring to each of the concepts for which a taxable event is susceptible to determination. It shall be considered an absolute legal excuse that the subject remedies his non-compliance, without any requirement or action by the Tax Administration to obtain the remedy. For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action taken with notification to the taxpayer, conducive to verifying compliance with the tax obligations related to the tax and period in question" (emphasis supplied). That is, this regulation did stipulate, as a minimum penalty, five years of imprisonment, which denotes an error in the reasoning transcribed in the trial court's judgment (since that amount is mentioned as the maximum penalty) but also an omission, since, as the appellant rightly points out, not only is there no reasoning, but worse yet, there is no evidence whatsoever, neither expert nor of any other kind, that reports what the amount of the unpaid taxes to the United States Government was—which is the only illicit aspect of that money (and not the entirety of the income arising from cigarette sales)—without it being possible to presume (against the principle of innocence) that all the transferred money constitutes that amount, given that the sale of tobacco or cigarettes, like any commercial activity, generates some profit after taxes are paid, besides the fact that, as established by the same statement from Nombre19 (see folio 854) and from Nombre20 (folio 872), the money transferred by Nombre01 also came from other various activities he had in that country. Having reached this point, it is necessary to point out how controversial it is, in comparative law, to consider tax evasion as a predicate offense. In this regard, it has been stated: "The fiscal voracity of developed States, especially European ones, has imposed a gradual and perverse shift in the crime of money laundering from its strict original meaning, that is, from the intention to criminally prosecute the legitimization of assets originating from certain criminal activities – drug trafficking, corruption, and organized crime, above all – to serving as an instrument of fiscal control and collection (…) the point has been reached where it is admitted that it is sufficient for committing the crime of money laundering that the assets originate from any crime – which does not even have to be serious – (…) and, furthermore, that it is not necessary for the assets to derive from a prior criminal activity that acts as the cause or source of their obtaining; instead, it is enough that they have not been subject to the corresponding taxation to already submit them to the criminal regime of money laundering. This way of understanding the crime (…) is politically and criminally incoherent and technically inconsistent, since (…) it not only ignores the political-criminal reason for these crimes and turns a large part of the population into money laundering offenders, thus confirming, incidentally, the preventive ineffectiveness of these criminal types, but it is also based on an interpretation contra legem of the typical requirement that the offenses subject to laundering have a criminal origin (…) The technical and political-criminal basis of the types of money laundering is that the typical element 'assets originating from a crime' (…) means that the cause of obtaining the assets is a prior crime, that is, prior to their obtaining, and therefore, laundering does not target assets that, once lawfully obtained, are simply removed from compliance with their tax obligations, because these assets do not 'originate from a crime' and, furthermore, are usually patrimonially indistinguishable from those that have been taxed. What is technically and politically-criminally decisive for the typicality of laundering is, then, that the origin of the assets, that is, the cause of their obtaining, are predicate crimes – drug trafficking, bribery, kidnapping... – distinct from tax fraud, because tax fraud in itself does not generate the assets, is not the origin of the assets, but rather simply conceals lawfully obtained assets from the Public Treasury" (Cf. Nombre11. Technical and Political-Criminal Reflections on the Crime of Money Laundering. Cuadernos de Política Criminal No. 91, 2007, pp. 72 and 74. Also at the following electronic address of the Universidad Externado de Colombia: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98). This discussion is echoed by national doctrine in the following terms: "...the legislations of some countries such as Spain [In Spain, the 2010 law (...) expressly admits that the defrauded tax quota may constitute the material object of money laundering] and Germany expressly declare that profits generated by a tax crime can be a predicate act for the crime of money laundering. In France, Belgium, and Italy, it has been case law that has stated that a tax crime can be a predicate act in laundering. In Switzerland, it has been doctrine (...) Part of Spanish doctrine [Nombre11 (...) Cobo del Rosal/Zabala López Gómez (...) Quintero Olivares] believes that the crime of tax fraud cannot be a prior act for the crime of legitimization of capital, because the quota that must be paid for tax purposes does not originate in a crime, but rather the taxes were acquired lawfully by the author (...) Nombre21 adds that the crime of tax fraud is a crime of omission, and crimes of omission cannot be prior acts (...) because a causal relationship cannot be established between the omitted action (the payment of tributes) and the assets already incorporated into the subject's patrimony by virtue of a prior prior act not constituting a crime. According to this author, hypothetical causality could not be resorted to in the sense of considering the circumstance illicit because if the required action had been taken (the payment of tributes), the part of the patrimony affected by the fulfillment of the obligation would not be part of the active subject's patrimony. According to this thesis, the profit from a lawful activity does not become illicit by the mere circumstance that it is not taxed on or that it is concealed to avoid paying tributes (...) Article 174 of the Russian Criminal Code (in force since 1996), based on the thesis that the person obligated to pay taxes has earned his resources lawfully, considers that there is no money laundering in the event that the prior act is tax fraud, because there are no resources originating from a crime" (Nombre14. The Crime of Legitimization of Capital. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 83-85; emphasis supplied). The latter author addresses the topic for national legislation, considering that a distinction must be made between tax fraud and the withholding of collected taxes not remitted to the Treasury, but concludes by indicating: "The amount of the defrauded taxes is a sum of money that is a proportion applied to the tax base (levy). It is true that the agent, as a result of his fraud, receives nothing, but rather stops paying the corresponding tax quota. But this unpaid tax quota by virtue of the tax fraud, which is measured in money, is a suitable object for the crime of laundering" (Nombre14. The Crime of Legitimization of Capital. Editorial Jurídica Continental, San José, 2012, 1st edition, p. 87). From these positions, it is evident that the solution is not, therefore, settled, and it was absolutely ignored in the trial court's decision, despite the fact that the national typical formula is very similar to those commented on by foreign authors in providing that the assets "…originate from a serious crime," without the obtaining of the assets having been the tax crime itself, but rather the activity of selling tobacco, even if the profits therefrom were magnified by the non-payment of those tributes, which is a different matter. Despite the foregoing, even if it were accepted that a tax crime can be a 'prior act' for the legitimization of capital, it would always be required not only that the tax crime has, in Costa Rica, a minimum abstract penalty of [Nombre01] years (according to the legislation we are applying, which is not the same as that commented on by the Costa Rican professor) but that, in such a situation, it be specified whether the tax quota left unpaid in each tax period exceeds the amount of base salaries that enable that penalty. In this Court's view, without entirely discarding the profound dogmatic objections referred to above, what prior tax crimes as a basis for the legitimization of capital raise are other issues: on the one hand, of an evidentiary nature, to distinguish the net flow of capital transmitted, mostly originating from a lawful activity, from the illicit quota that should have been taxed, a distinction that was not made in this case; and on the other, relating to the way in which the intent of the active subject is reconstructed, a posteriori, given the general lawful activity that originates the capital on which tributes were not paid: "The problem (…) is not so much the criminal origin or provenance of the assets, but the difficulty of specifying and individualizing them in the taxpayer's patrimony (something that in principle will occur in all cases where what is obtained is money, a fungible asset par excellence). The taxpayer is liable for the tax debt with all the assets of his patrimony (as in punishable insolvencies), but it is practically impossible to determine which assets are the ones that become contaminated. What is not admissible is the theory of total contagion, according to which the taxpayer's entire patrimony becomes contaminated. This would be excessive and disproportionate. Anyone doing business with him would be committing a money laundering crime, if all its elements concur, especially the subjective ones (knowledge of origin, or recklessness at the time of receipt). In every causal relationship, it is necessary that the cause precede the result; in this case, it is required that the tax crime precede in time the tax quota that constitutes the material object of the money laundering crime. There is no problem when the moment of the crime that generates the laundered assets can be determined with certainty; for example, in the case of drug trafficking where the moment of the sale and the amount obtained can be determined. Now, the tax crime presents certain peculiarities that can generate practical difficulties that are hard to solve. The moment of contamination of the assets forming the defrauded tax quota will occur when the administrative deadlines established for declaring them to the Tax Administration expire. Until these deadlines end, there is a period during which it is not possible to determine whether or not the crime exists. So indicates Nombre22, "Money Laundering and Tax Crime. Possibility that a Tax Crime is the Predicate Crime to Laundering," La Ley: Revista jurídica española de doctrina, jurisprudencia y bibliografía, No. 5, 2005, pp. 1402-1410. In the same sense, Nombre23, Money Laundering, cited, p. 163 (…) Nombre24, "Geldwäsche," cited, nm. 28. Thus Nombre25, "Tax Crime and Laundering: two sanctions for one action," cited, p. 5." (Cf. Nombre15. The Tax Crime as a Prior Criminal Activity to Money Laundering. In: Revista Electrónica de Ciencia Penal y Criminológica. 13-01, 2011. Also at the following internet page: http://criminet.ugr.es/recpc/13/recpc13-01.pdf). In this matter, it has already been stated that there was no evidence whatsoever establishing the specific years in which each sum of money was produced and the payment of the tribute was omitted, which was necessary because our criminal type refers to base salaries, which change annually, and therefore, it was necessary to determine the year of each monetary flow and what part thereof was exclusively attributable to the evasion (that is, excluding lawful profits), in order to carry out the parallel typical adequation, which was neither done in the trial court's judgment nor, worse yet, proven. Furthermore, the Court took all the money entering the country, without making any division by period, which led it to account for amounts entered when that conduct was not a crime, that is, before 2002, since it stated: "...the money sent by Nombre07 since the year two thousand to his accounts at the Bank of Costa Rica and in August 2004 to the account at the same bank of the accused Nombre01 was the product of selling untaxed cigarettes, which is a federal crime in that country" (cf. folio 936). In another vein, first, what entered before January 10, 2002, should have been separated out, since all that money could not be considered the product of legitimization of capital, even if it originated from a crime, given that, until that date in our country, only assets, in a broad sense, originating from drug trafficking could be typical of that conduct, and it has already been seen that this was not the case. Then, of all the money entering from the year 2002 onward, it had to be established how much entered in each annual period, as this was necessary for the purposes of determining the annual changes in amount to carry out the typical adequation to that crime, in the event of exceeding the referenced base salaries, and, finally, to indisputably prove the proportion of that money that was the product of tax evasion and which was not, in order to see if that proportion exceeded the Costa Rican typical requirement that it amount to a certain sum, given that it was only that proportion which allowed for the typical classification. None of this was elaborated in the judgment, and much less is there evidence of the amount of taxes left unpaid: "…the tax crime differs quite a bit from other predicate crimes of laundering (for example, drug trafficking). Its peculiarities are going to require very intense evidentiary activity, so that the existence of an unpaid tax quota exceeding the amount set in the Criminal Code can be affirmed. Unlike what case law considers regarding drug trafficking crimes, in a tax crime, it will indeed be necessary to prove the specific criminal act that generates the laundered assets. And this is because the commission of a tax crime requires specifically proving various typical elements of a temporal and personal nature. Let us remember that the existence of the defrauded tax quota must be verified within strictly set time limits (…) Proving these temporal periods is essential for the existence of the tax crime. And doing so with clarity because, as we know, the amount must be determined in relation to each tax and tax period, without being able to sum the different amounts, below the minimum (…) to turn into a crime what are merely administrative infractions…" (Cf. Nombre15. The Crime of Money Laundering. Aranzadi, Spain, 2012, pp. 426-427). But, as if the foregoing were not enough, it turns out that, as the appellants rightly point out, it was not considered that this was not the law that allowed for dual criminality. The Code of Tax Norms and Procedures, in its Article 1, states: "Scope of Application. The provisions of this Code are applicable to all tributes and the legal relationships derived from them, except as regulated by special legislation" (boldface supplied). The prior acts attributed to Nombre01 in the United States allude to smuggling, that is, having come into illicit possession of cigarettes without paying the prior tributes. The trial court's judgment states in this regard: "In the year 2000, the Eastern District of New York Attorney's Office initiated a formal investigation against Nombre07, for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Act), based on an illegal sale of cigarettes, which were sold without prior payment of taxes (...) Nombre01 is being prosecuted for violations of the Racketeer Influenced and Corrupt Organizations Act (Rico Act), arising from his control over a tax-free cigarette distribution business operating on an indigenous reservation located at the Poospatuck Reservation, in the City of Mastic, State of New York. In that place, Company P is located, which sells large volumes of tax-free cigarettes, nationally and through the website www.smokersden.com. It is also indicated how the indigenous reservation is home to the Unkechaug Tribe, recognized by the State of New York, though not by the Federal Government. As Nombre01 is the wife of Nombre07, an American indigenous member of the Unkechaug Tribe, and living on the Reservation [...], she has the right to operate the cigarette store inside the Reservation, but Nombre01 does not (...) This information, moreover, is cross-referenced and coincides with the document identified as 'Introduction of all charges' (...) In said document, the Federal Government establishes how Nombre08 was a company formed under the laws of the State of New York, with a principal place located at 9 Squaw Lane, Mastic, New York, and was a company that sold cartons and packages of cigarettes that do not show evidence of payment of the taxes and tributes applied by the State of New York; it also operated through the website smokersden.com, coinciding with the information provided by the United States Department of Justice to the Government of Costa Rica (...) the significance of Nombre08 regarding the criminal activity of Nombre01. Thus, according to the witness [Nombre17], Nombre08 was a company dedicated to the sale of untaxed cigarettes, an exemption from tax payment whose limitation was that the cigarettes could only be sold inside the reservation, to indigenous subjects, for their personal consumption, and not for resale. Furthermore, the company could only be operated by an indigenous person, with Nombre01, wife of Nombre07 and a member of that indigenous community, being the person authorized for the sale of cigarettes. For his part, witness Nombre20 declared how (sic) on behalf of the City he filed a civil claim against Nombre07 and Nombre01, because the Nombre08 store sold cigarettes that had not paid state taxes, therefore they were very cheap cigarettes, to the point that people came from New York City (125 miles from the reservation), bought the untaxed cigarettes, loaded them into their vehicles, and took them back to New York, to then resell them in grocery stores, which caused the City significant losses due to uncollected taxes. He also explained how (sic) Nombre01's business was advertised on the internet, through newspapers, and cigarette shipments were made by mail, where even based on the monitoring carried out on the company, it was determined that Nombre08 bought millions of cigarette cartons per year, which had not paid taxes, and were resold under identical conditions, that is, without the payment of taxes required by the State (...) Nombre08 was a company that sold that product without taxes, according to Nombre20 (sic) under a law that the Government issued — a non-existent law — and where the cigarette cartons were bought directly from the distributor without the tax stamp, then taken to the reservation, and sold through Nombre08 without paying taxes, an absolutely illegal sales activity under federal and state law, as the commercialization of that product was, in any case, not only inside the reservation or to members of the indigenous community, but, and this is understood from Nombre20's testimony, it was a national sale (...) What was explained by Nombre20 will be seen as endorsed in the ruling of the Court of Appeals. Thus, for the Court of Appeals, the CCTA defines that any person who intentionally ships, transports, receives, possesses, sells, distributes, or buys contraband cigarettes violates the law. Contraband cigarettes are defined as a quantity exceeding sixty thousand cigarettes without evidence of tax payment. For its part, New York Tax Law 471, this Court analyzes, indicates that a tax must be paid on all cigarettes possessed for sale, it being assumed that all cigarettes within the State are subject to tax.

Furthermore, the Court analyzes how, over the years, the State of New York has been involved in a dialogue with Native North American retail traders and with the Federal Courts regarding the State of New York's possibilities of imposing taxes on cigarette sales on reservations, which has generated significant conflicts. Nevertheless, the tribe's immunity prevented the State from suing the Native North Americans who refused to pay the tax, even when the State attempted to adopt drastic measures to achieve tax payment, such as intercepting and seizing cigarette shipments destined for Indigenous reservations. The Native Americans resisted, engaging in acts of violence and civil disturbances on New York highways, which—and this is inferred from the entirety of this ruling—led to a policy of tolerance regarding the payment of tax on cigarettes sold on the reservations. However, the Court of Appeals is clear and categorical in establishing that the regulation contained in New York Tax Law 471 always remained in force. For the Court, the tolerance policy in no way signaled the State of New York's choice not to enforce its tax laws, but rather presented a concession by the State, besieged by the difficult and dangerous application of state law, given the complex jurisdictional and political problems surrounding cigarette sales on the reservations, and how volatile smuggling prosecutions would prove to be" (cf. folios 888 and following). That is, he is not accused (solely) of having sold cigarettes and not paying tax on the sales, but rather of having obtained cigarette shipments without having the seal (prior to those sales) indicating that, in turn, the distributors had paid the prior taxes. This means that, for double criminality, we are not talking about what in our system would be a sales tax evasion, but about coming into possession of the object without the payment, prior to the subsequent sale, of taxes. It is the equivalent, in our context, of import or customs taxes. That conduct is provided for, in Costa Rica, in a special law that, therefore, takes precedence over that general regulation, even if they concur with other tax transgressions regarding the sales tax. This is the General Customs Law No. 7557 of October 20, 1995 (published in La Gaceta 212 of November 8, 1995, and in force at the date of the accused acts), which establishes:

"ARTICLE 1.- Scope of application. This law regulates the entries and exits, from the national territory, of goods, vehicles, and transport units; also the customs clearance and the facts and acts derived from it or from the entries and exits, in accordance with community and international norms, the application of which is the responsibility of the National Customs Service" (boldface supplied), adding numeral 223: "Relation to offenses defined in other tax regulations. If the conducts defined in this law also constitute a crime or a contravention established in tax legislation, the special provisions of this law shall apply provided that these conducts are related to the breach of customs tax obligations or duties before the customs authority" (highlighting is external). This regulation established customs offenses:

In a first period, from its entry into force in 1995 until the year 2003, and then from that date, when a reform occurred, to the present day. Since the accused was here improperly attributed with having received money from his brother, starting in the year 2002—which has already been stated is an atypical conduct as the capital arose from alleged crimes unrelated to drug trafficking—the legislative changes in customs law must again be taken into account. Thus, in 2002 and until 2003, the original General Customs Law was applicable, and from this date until 2007 (when the cycle of accused acts closes), the regulation currently in force would govern.

The first regulatory version (applicable for the period January 2002-August 2003) stated:

"ARTICLE 214.- Basic offense. Whoever, through simulation, maneuver, or any other form of deceit, wholly or partially eludes or evades the payment of the customs tax obligation shall be punished with one to three years of imprisonment and a fine equivalent to twice the amount of the taxes left uncollected, with their interest and surcharges, provided that the customs value of the goods exceeds five thousand Central American pesos.

ARTICLE 215.- Specific cases of customs tax fraud. Whoever incurs the penalties set out in the previous article, provided the customs value of the goods exceeds five thousand Central American pesos, shall be penalized given that: a) Whoever, without authorization from the competent body, gives a purpose different from that provided in the authorizing regulation to goods benefiting from exemption or franchise or that have entered free of taxes. b) Whoever, using or declaring false information, requests or obtains preferential customs treatment. c) Whoever, using or declaring false information, justifies the fulfillment of their duties, obligations, or requirements in their capacity as beneficiary or user of a customs regime or modality, to request or obtain preferential customs treatment. d) Whoever totally or partially simulates an export or import operation of goods or alters the description of some, in order to illicitly obtain a customs incentive or an economic benefit. e) The official, public employee, or official of public faith who falsely certifies or attests that a tax was totally or partially satisfied.

ARTICLE 216.- Aggravating circumstances. The penalty shall be three to five years and a fine equivalent to three times the amount of the taxes left uncollected, with their interest and surcharges, when, in any of the two previous articles, any of the following circumstances concurs: a) Three or more persons participate in the act, as perpetrators. b) A public official participates as perpetrator, instigator, or accomplice, in the exercise of their functions, on the occasion of them, or with abuse of their position" (boldface not in the original text).

But Article 1 of Law No. 8373 of August 18, 2003, modified that regulation, so the law in force in the other period of accused acts (August 2003 to 2007) stated the following:

"Article 214.— Customs tax fraud. Whoever, using cunning, deceit, or trickery, simulation of false facts, or distortion or concealment of true facts, used to obtain a pecuniary benefit for themselves or a third party, wholly or partially eludes or evades the payment of taxes, shall be sanctioned with a fine of twice the amount of the taxes left uncollected plus their interest and a prison sentence, in accordance with the following: a) Six months to three years, when the amount of taxes left uncollected exceeds five thousand Central American pesos and does not exceed fifteen thousand Central American pesos. b) One to five years, when the amount of taxes left uncollected exceeds fifteen thousand Central American pesos. The amount of taxes left uncollected shall be determined in court through expert assistance, in accordance with applicable regulations.

Article 216.—Aggravating circumstances. The penalty shall be five to nine years of imprisonment and a fine equivalent to twice the amount of the taxes left uncollected plus their interest, when in any of the circumstances set forth in Article 214 of this Law, at least one of the following conducts or situations concurs: a) Two or more persons participate in the criminal act as perpetrators. b) A public official or an auxiliary of the public customs function participates as perpetrator, accomplice, or instigator, in the exercise of their functions, on the occasion of them, or with abuse of their position. c) Non-existent natural or legal persons are made to appear as consignees in the documents related to the clearance of goods. d) It is perpetrated, facilitated, or its discovery avoided through the use of violence or intimidation.

Article 220 bis.—Falsity of the customs declaration and other customs-type offenses. Whoever commits the following shall be punished with imprisonment from two months to three years: a) Whoever introduces goods into the national customs territory through a false declaration related to the regime, classification, quality, value, weight, quantity, and/or measure of such goods, or through a lower payment of taxes than that to which they were legally obligated, or both. b) Whoever clandestinely brings goods in transit, without paying the corresponding taxes. c) Whoever transports, stores, acquires, sells, donates, conceals, uses, gives, or receives on deposit, destroys, or transforms goods introduced into the country evading customs control. d) Whoever substitutes goods from the customs warehouse, transport units, transient parking lots, or port zones." Note that under none of those laws, the former or the latter, and under none of the simple criminal modalities, would the requirement of the prior serious crime be met because, in our law, none of those conducts had, at the date of the accused acts, a minimum abstract penalty of four years. The only exception is the aggravated conduct contemplated in numeral 216 of the last cited customs legislation, but the classification of double criminality could not be made under that penal type because Nombre01 was accused and sentenced for an individual activity, without it being proven that he acted jointly, with violence, or using non-existent legal persons. Rather, when thus accused, he was definitively acquitted, this sentence being the only one that has value, without our legal system being able to contemplate dismissed conducts for the punitive purposes of other crimes.

To continue with the chain of omissions, both evidentiary and analytical, the Trial Court also failed to consider, when analyzing the issue of double criminality (even under the regulation it used), the matter of the statute of limitations for criminal action in these offenses, which was necessary because, as already noted, the validity of the criminal action is inherent to double criminality:

"In the opinion of a sector of the doctrine, the statute of limitations on the prior act from which the assets originate produces the rupture of the connection between the asset and the act that originates it. At the moment when a crime can no longer be prosecuted due to its statute of limitations, all assets originating from it become decontaminated. It does not seem reasonable, it is argued, to prolong the criminal origin beyond the period within which the crime is prosecutable. It is not correct to sanction a person for the laundering of assets proceeding from an already time-barred crime, whose perpetrators cannot be sanctioned criminally. Otherwise, a disproportionate extension of the time during which assets have a contaminated character would occur, so that, by not setting a limit, such as the statute of limitations of the prior crime, they would continue to maintain that character indefinitely" (Cf. Nombre15. El delito de blanqueo de capitales [The Crime of Money Laundering]. Aranzadi, Spain, 2012, pp. 428-429).

And, regarding that topic, tax legislation has special rules, different from those in the rest of ordinary procedural law. Thus, in the Code of Tax Rules and Procedures (legislation under which the Trial Court classified the double criminality), the statute of limitations for criminal action is set at three years in most cases and five years if the case is based on false data in tax returns, adding:

Article 52.- Computation of terms. The statute of limitations term must be counted from the first of January of the calendar year following that in which the tax must be paid. (...) Article 91.— Statute of limitations rules. The statute of limitations for tax offenses shall be governed by the general provisions of the Penal Code and those of the Code of Criminal Procedure. (Ref. by Law 7900 of August 3, 1999)" (highlighting not in the original text).

On the other hand, in the General Customs Law, the statute of limitations for criminal action is four years, according to numeral 62. From this perspective, if Nombre26 was detained on August 2, 2004, and has been attributed with sending money to Nombre01 since long before (even if the latter used it later), the analysis of each monetary flow and the evaded annual quota was essential, for the purposes of both objective typicity and the validity of the criminal action according to the computation of the statute of limitations periods, none of which was done in the trial court's ruling nor, lacking the annual accounting data, can be done now.

It has also been stated that no evidence was provided regarding the legal rules of punishment, much less those of the statute of limitations, for that event in North America. That would suffice, even under the first typical classification made by the Trial Court, which was stated to be incorrect, to resolve the substance of the matter; which, with greater reason, can be done with the other referred classification.

Ultimately, without making further analyses and even accepting the proven facts and the evidentiary and legal analysis carried out in the trial court's sentence (which, it is insisted, is not entirely accurate and, much less, complete), there would be no objective typicity, and this implies that the appeals must be upheld and the accused acquitted from this instance, since a remand would lead nowhere, given that the foregoing arises from a legal analysis and a lack of evidence that cannot be produced at this procedural stage.

§3. Subjective elements of the type: On the other hand, when numeral 69 of the Psychotropic Substances Law, applicable to the facts, provided: "Whoever acquires, converts, or transmits assets of economic interest, knowing that these originate from a serious crime, or carries out any other act to conceal or cover up the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts, shall be sanctioned with a prison sentence of eight to twenty years: a) ... b) Whoever conceals or covers up the true nature, origin, location, destination, movement, or rights over the assets or the property thereof, knowing that they proceed, directly or indirectly, from a serious crime. The penalty shall be ten to twenty years of imprisonment when the assets of economic interest originate from any of the crimes related to the illicit trafficking of narcotic drugs, psychotropic substances, money laundering, diversion of precursors or essential chemical substances, and related crimes" (highlighting supplied), it was requiring direct intent of the first degree.

It is known that there are three types of intent: direct intent of the first degree; indirect or direct intent of the second degree, also known as that of necessary consequences; and eventual intent. In principle, any intentional act can be committed through any of these forms of intent, unless the legislation expressly establishes otherwise. Thus, the legislative use of the forms 'knowing' or 'a sabiendas' implies that direct intent is required: "When the legislator employs expressions such as 'a sabiendas' [knowingly] they accentuate the cognitive side of intent and imply regarding the specific element for which they require direct intent of the second degree (sic) a renunciation of punishment for eventual intent. Articles 69 of the Psychotropic Substances Law (...) require 'knowledge' that the object of economic interest comes from a specific crime (...) It is sufficient that the agent knows the factual circumstances that characterize the prior act. It is not necessary that they know the particularities of the prior act…" (Nombre14. El delito de legitimación de capitales [The Crime of Money Laundering]. Editorial Jurídica Continental, San José, 2012, 1st ed., pp. 125-126, boldface supplied).

In the Court's opinion, there may be, in the text transcribed above, some confusion in the denomination of that emphasis on the 'knowledge' element (since it is indicated that it is direct intent of the second degree, when it is of the first, for the second degree is the so-called 'intent of necessary consequences' where knowledge is not so much at issue, but rather will predominates, cf. Nombre14. El dolo [Intent]. Editorial Juritexto. San José, 1999, pp. 268-270). Despite that terminological difference, we agree with said author, and with an important doctrinal sector cited in previous references, that the expression excludes other forms of intent (e.g., eventual intent) and only admits direct intent, which is definitively not a mere suspicion: "…the cognitive element of intent is not a mere suspicion about the concurrence of the objective elements of the type, nor, at the opposite pole, does it require certainty in that regard (…) It is therefore not necessary, to describe intent (…), to resort to affirmations incompatible with legal certainty and with the criminal concept of intent, such as the one very frequent in doctrine and jurisprudence that knowledge that the assets 'proceed from a criminal activity in a generic manner' is sufficient, as if our criminal law were based on the perpetrator and not on the act (…) intent in the crime of money laundering always targets crimes and not generic criminal activities" (Cf. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales [Technical and Criminal Policy Reflections on the Crime of Money Laundering]. Cuadernos de Política Criminal [Journal of Criminal Policy] No. 91, 2007, pp. 5-26. Also at the following website: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pp. 76-77).

With that warning, the doctrine indicates that, as it is a normative element, that intent has two substrates, one factual and one evaluative: "The factual substrate is composed of the acts constituting a criminal activity. The perpetrator must know those factual circumstances perceptible by the senses, which must serve as a basis to evaluate their criminal character. It concerns, as with descriptive elements of the type, knowledge of the circumstances of fact (…) The perpetrator of the money laundering crime must carry out an evaluation of the facts they have perceived. From such an evaluation, it must be derived that those facts constitute a criminal conduct" (Cf. Nombre15. El delito de blanqueo de capitales [The Crime of Money Laundering]. Aranzadi, Spain, 2012, pp. 660-661).

This is important because, from the factual substrate, the activity deployed by Nombre01 in the United States, of selling tobacco without taxes to non-indigenous people, was carried out publicly, advertised through an internet page, with deliveries to various parts of the Union through that country's postal service; there were multiple businesses of the same type on the same indigenous reservation, and no person had even been prosecuted for such activity, as unanimously emerges from the oral evidence received at trial. Ergo, from the factual substrate, Nombre01, who had gone to work with Nombre01 in that business, had no element even to doubt that a criminal activity was being carried out, especially since the remittances were sent through banks, both from the United States and from a state bank in Costa Rica, which presuppose important controls to prevent the trafficking of illicit money.

From the evaluative substrate, no additional data arise either, for if the original activity was apparently licit, there was no reason to question its illicitness. Moreover, the doctrine insists that this intent must be present at the moment of acquisition of the asset, that is, it must be current, without it being sufficient that it exists at other moments: "The perpetrator must know the origin of the object at the moment of its obtaining. Subsequent knowledge ('dolus subsequens') is not criminally relevant ('dolus subsequens non nocet') nor does it generate a guarantor position, in accordance with Article 18 of the Penal Code. The acquisition of the object without knowing its illicit origin implies an acquisition of possession in good faith, which excludes the crime of money laundering (...) they are not permanent crimes" (Nombre14. El delito de legitimación de capitales [The Crime of Money Laundering]. Editorial Jurídica Continental, San José, 2012, 1st ed., pp. 125-126, boldface supplied).

"Intent must be antecedent or concurrent with the action. Subsequent intent is irrelevant…" (Nombre27. El marco jurídico del blanqueo de capitales: aspectos penales y administrativos [The Legal Framework of Money Laundering: Criminal and Administrative Aspects]. At the following electronic address: http://www.datadiar.com/actual/novedades_05/penal/blanqueo/d_may_02c.htm).

"Intent must exist during the performance of the behavior, that is, during its execution. Therefore, dolus antecedents, that is, an intent prior to the commission, is not sufficient (…) as with dolus antecedents, it is admitted that dolus subsequens, or intent subsequent to the act, is not intent in the sense of Criminal Law. From the requirement that the knowledge corresponding to intent be current, it follows that knowledge subsequent to the performance of the conduct has no criminal-legal consequence (…) This is an express mention contained in the Vienna Convention of 1988 which, in its Article 3.c).i), refers to 'the acquisition, possession, or use of property, knowing, at the time of receipt, that such property is derived from any offense or offenses established…' The same reference is contained in the Palermo Conventions (Art. 6.1.b.i) (…) It is irrelevant from a criminal point of view if knowledge of the criminal origin of the assets is obtained after the performance of the money laundering actions. The principle dolus superveniens non nocet has full force..." (Cf. Nombre15. El delito de blanqueo de capitales [The Crime of Money Laundering]. Aranzadi, Spain, 2012, pp. 662-663).

It is therefore unacceptable that the Trial Court stated: "Although in count five of the accusation, the Public Ministry includes the transfer from Nombre08's account in the United States of the sum of Sixteen million seven hundred ninety-three thousand, nine hundred eighty dollars, to Nombre01's dollar savings account in the Banco de Costa Rica. These transfers, as can be seen in Appendix No. 4 of Report No. 212-DEF-R-140-11 of the Section of Economic and Financial Crimes of the O.I.J., began in October of the year two thousand and extended without any interruption throughout the years two thousand one, two thousand two, two thousand three until March 19, 2004. It must be taken into account that at that date, Nombre07 had not been detained in the United States on the charge of cigarette smuggling, and therefore it could not be affirmed with certainty that his brother Nombre01 knew of the illicitness of that business that generated—in its totality—the funds remitted to the Banco de Costa Rica.

Because knowledge of the illicit origin of the laundered funds is necessary for the purposes of the typicity of the crime, the Court has had to consider that knowledge regarding those money transfers arises from the detention of Nombre07 in New York on August 2, 2004, so only one deposit, the one made on August 6 of that same year and received in Nombre01's account, can be considered tainted by knowledge of the illicitness of its origin.

It should be commented, as it is of interest at this point, that this last deposit has different conditions compared to all the previous deposits that can be seen in cited Appendix 3, namely: the amount of four million four hundred thousand dollars far exceeds the previous ones, whose figures usually range between two hundred and three hundred thousand dollars—with the exception of a deposit made by the fund operator Lloyd of two million five hundred thousand dollars in November of two thousand two—and represents a quarter of all the deposits made over three years and ten months in that savings account.

It differs from the preceding deposits in that the money is not remitted by Nombre08, but by TMG Nombre16 Partners. The explanation for this change in the remitter arises from the temporality of the deposit, four days after the illicit nature of his commercial activity carried out through Nombre08 is 'made official' with the detention of Nombre01. However, the identity of Nombre01 is also present in this deposit, for his initials Nombre16., which according to the witness Nombre20's testimony were imposed by Nombre01 on all his belongings and businesses so they would be identified with him, are in the depositor's name, so it cannot be denied that its origin is related to Nombre01 and his illicit activity, known at that moment by the accused Nombre01.

The Court also considers that at the time of carrying out the redemption of the funds deposited by Nombre01 in the Banco de Costa Rica, ten days after the detention of Nombre01, the accused Nombre01 knows the origin of the funds and with that knowledge agrees to erase any trace of his brother's investments and banking activity in the Banco de Costa Rica, for, as indicated in Report No. 212-DEF-R-140-11 of the Section of Economic and Financial Crimes of the O.I.J, and can be seen at reverse folio 356 of the main file, even the sum of five thousand eight hundred dollars deposited in an account of Nombre01 were deposited, together with the fund of ten million three hundred fifty thousand, two hundred forty-eight dollars in Nombre01's savings account to later constitute a new Growth Fund in dollars in the name of Nombre01 at the Banco de Costa Rica.

From concluding then that all the funds remitted by Nombre01 to his account and which constituted the money of the Fund in whose redemption both Nombre26 and Nombre01 participated, and the four million four hundred thousand dollars that were remitted after the detention of Nombre01, came from the illicit cigarette smuggling activity of Nombre01, a situation that was known by Nombre01 at the moment of receiving and maintaining those funds in his account and when participating in the redemption of the Growth Fund in dollars of the Banco de Costa Rica" (cf. folios 938-939, highlighting supplied).

Note that although the trial judges initially stated that it could not be considered that the accused knew that all the money he received from his brother, before the latter's detention in the United States, came from a crime, immediately afterwards they make the knowledge of intent arise, not at the acquisition but in the maintenance, in his account, of those remittances, through the redemption of the Fund and in subsequent investments. By this they mean that although the accused, upon receiving the money, did not have intent (knowledge of the originating crime), he later acquired that knowledge and it is for that supervening circumstance that they make the reproach, so stated, retroactively, which is nothing but applying the concept of subsequent intent (dolus subsequens) which, as stated above, is not acceptable.

It is true that the commented article establishes: "a) Whoever acquires, converts, or transmits assets of economic interest, knowing that these originate from a serious crime, or carries out any other act to conceal or cover up the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts. b) Whoever conceals or covers up the true nature, origin, location, destination, movement, or rights over the assets or the property thereof, knowing that they proceed, directly or indirectly, from a serious crime..." so it could be said that intent can exist at three moments: that of acquisition, that of conversion, and that of transmission, and that, in this matter, the trial judges considered that, for one sum, it was present from acquisition (as it was transferred after the detention of Nombre01) and, for the remaining sums, from conversion and transmission onward.

However, the actions cannot be artificially separated for, as has been made clear by the cited dogmatics, the international instruments from which those three moments arise are emphatic in demanding that the active subject's knowledge be at the moment of receipt of the assets, not at the remaining moments.

Thus, in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (approved by the UN at the session held on December 19, 1988, in Vienna, Austria, and ratified by Costa Rica in 1990), Article 3.1.c.i provides: "Article 3 OFFENCES AND SANCTIONS. 1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: c) Subject to its constitutional principles and the basic concepts of its legal system: i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences established in accordance with subparagraph a) of this paragraph or from an act of participation in such offence or offences" (highlighting supplied).

In the same sense, the Palermo Convention states: "Article 6. Criminalization of the laundering of proceeds of crime 1.

Each State Party shall adopt, in accordance with the fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally: (b) Subject to the basic concepts of its legal system: (i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property is the proceeds of crime" (emphasis added). It has already been stated that this instrument is not applicable here, being a later law, but it is mentioned for the purpose of demonstrating how, despite being extremely broad in its regulations, it limits the intent (dolo) of the subsequent possession to the requirement that it was present at the moment of receipt of the good or object, for which reason both regulations become interpretative limits of the law enacted as a result of the signing of that international obligation. Ergo, the three verbs allude to acts where there is initial intent at the moment of receipt, without it being possible for an act carried out without intent, without knowledge or will to commit the objective elements of the offence, that is, in good faith, to later become, by the mere passage of time, an unlawful act since, in such cases, the conversion and transmission are acts proper to the exercise of ownership and possession rights (originally in good faith). In other words, it would be a legal absurdity to consider that if the person received in good faith, without intent, and subsequently becomes aware of the unlawful nature of the act from which the money originated, they be required either to hand the thing over to the State or to perform no possessory act with it. Now then, this would lead to making a differentiation (both for the purposes of the objective elements of the offence and intent, as well as for those of forfeiture (comiso)) between the monies received by Nombre01 before his brother's detention (received without intent, and therefore, not constituting the criminal offence before us) and that received afterwards. That is to say, it would be necessary to establish the total amount received by the accused. From this, subtract what was received before 10 January 2002 (when there was no objective criminality (tipicidad objetiva) for the act). From what remains, subtract what was received before 2 August 2004 (the date of Nombre01's detention in the United States, which the Trial Court sets as the date from which intent arises), sums that were received without intent by the accused and, therefore, not capable, from the standpoint of subjective criminality (tipicidad subjetiva), of being criminal. From what remains, that is, approximately four million dollars, there should be extracted, for each annual period (for the purposes of dual criminality regarding tax), the amount of unpaid taxes since only this (and not the rest of the profit) is what would constitute the crime. That resulting sum would need to be demonstrated in which periods it was obtained, to see if it is possible to adapt it to the objective elements of the offence in Costa Rica, obviously without taking into account interest or other profits generated in the country, but only the original resulting amount. None of this was done, and it was opted to refer, in bulk, to all the money, its interest, and other gains, both for the purposes of the conviction and, subsequently, of the generalized forfeiture. To do this latter, the Trial Court (ignoring the anachronism it incurs when pointing out that the paragraph it will apply, from Law No. 8204, has its inspiration in numeral 6 of the Palermo Convention, see folio 940, when it has already been seen that the law applicable to this matter is that of 2002 and that this Convention, although adopted by the United Nations in the year 2000, was not ratified by the country until 2003) opts to indicate that it is not those first verbs that are applied but rather that: "The acts charged, in the Trial Court's view, do not find adaptation in the first part of the cited Article 69 'Whoever acquires, converts or transfers assets of economic interest (...)' but rather in the part that reads 'or whoever carries out any other act to conceal the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts (knowing that these originate from a serious crime)' (...) we shall proceed to break down the criminal offence (...) with the intention of relating each part of the offence with the conduct of the accused and the circumstances of the case (...) Analysis of Objective Criminality. Article 69 first paragraph: '(...) whoever carries out any other act to conceal the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts.' A.- Whoever carries out any other act.- The verb that defines the typical action is to carry out any other act, alluding to the fact that it is not about the actions 'acquire, convert or transfer' that precede this part of the first paragraph of Article 69. The Trial Court opts for this verbal form because the conduct of Mr. Nombre01, which has been considered proven in the corresponding section of this judgment, is not contained in those verbal forms, but rather is of a banking nature in some cases and in others are dispositive acts using those monies received through banking operations of a transnational nature. The analysis of the acts carried out must begin with the first ones that occurred chronologically. i.- Receive and maintain in his dollar account No. 230-0042636-9 of the bank of Costa Rica money coming from the illicit cigarette trade of Nombre07 in the Indigenous Reserve […]. On 6 August 2004, a transfer from TGM Nombre16 Partners was sent from the United States, for the sum of four million four hundred thousand dollars to the aforementioned account, and Mr. Nombre01 received it and kept it deposited in his name, knowing that it came from the criminal activity for which his brother had been detained four days earlier in New York. ii.- The Redemption of the Dollar Growth Fund and subsequent operations. Five days after the aforementioned deposit was received in Mr. Nombre01's account, that is, on the eleventh of August two thousand four, Nombre07 sends to "Nombre05" his trusted executive at the Bank of Costa Rica, who turns out to be the defence witness Nombre05, the document that can be seen at folio 28 of the Main File, where he authorizes him to transfer all, in capital letters, bold and underlined, the funds from his investment account, and indicates that if he has any doubt, he should contact Nombre01's mobile phone, whose number he includes in the communication. In this brief expression of Nombre01's will, the urgency and imminent risk in which the permanence of that money in his patrimony and without restrictions finds itself is noticeable, a situation to which his brother Nombre01 responds efficiently, quickly and faithfully, who one day later, on the twelfth of August, directs a communication to Licentiate Nombre05, who up to that moment had handled Nombre01's investments and his own at the Bank of Costa Rica, the redemption of those funds and their deposit into Mr. Nombre01's dollar savings account, which is scrupulously fulfilled by the Bank. Once the more than ten million dollars were deposited in his account, Mr. Nombre01 constitutes another growth fund - this time in his name - for the indicated sum, to which is added five thousand eight hundred dollars that still remained deposited in Nombre01's savings account at the Bank of Costa Rica, so that Nombre01's design that no money remain in his name at the Bank of Costa Rica and therefore be capable of being frozen by the federal authorities who had detained him nine days earlier in New York is fulfilled. iii.- Purchase of properties and movable goods.- In File 1 of the evidence offered by the Public Prosecutor's Office, all notarial and registry information concerning the transactions by virtue of which, starting from the year two thousand seven until November of two thousand ten, Mr. Nombre01 in his personal capacity or in the name of the company Nombre01 del Caribe S.A. in which he had majority participation, acquired movable and immovable property with the money sent by Nombre07 is included. The Report of the Economic and Financial Crimes Section of the O.I.J. No. 212-DEF-R-140-11, from folio 343 to folio 346 verso of the Main File of this case, describes all the immovable property that were acquired by Nombre01, who appears in his personal capacity and acquires the ownership of those goods, and in the section of the study dedicated to the company H, incorporated by Mr. Nombre01 and his wife Nombre28, it is indicated that this company bought five estates (fincas) in the Province of Limón. Regarding the value of those acquisitions, the referred Report records that the value of the immovable property amounts to the astronomical sum of one thousand nine hundred eighty-two million, six hundred fifty-three thousand, seven hundred fifty-six colones. In relation to the movable goods, their description and notarial and registry information can be seen in Evidence File one and in the Report of the Economic and Financial Crimes Section, in Annexes No.1 and No. 2 the description of those goods is recorded, and their value is set at the sum of one hundred sixty-five million, seven hundred forty thousand colones, those in the first annex, and in the second annex concerning vessels, a value of Sixty-four million, two hundred eighty thousand, two hundred fifty-one colones is recorded, which total, two hundred thirty million, twenty thousand, two hundred fifty-one colones. It must be mentioned that the time during which the acquisition of immovable property is carried out, between 2007 and 2010, is not accidental, but must be related to the situation of the judicial process followed by the federal criminal authorities of the United States, because according to what witness Nombre29 said in that case, the Trial against Nombre01 began in the year two thousand seven, in October, and lasted until May 2008, and the properties begin to be bought in July 2007. The Trial Court concludes from this temporal proximity between the trial and the acquisitions of immovable property that the change in Nombre01's procedural situation, which leads him to face a federal trial, imposes on him the need not to limit the concealment to banking operations but to diversify through real estate investment to distance Nombre01's patrimony even further from its illicit origin, it is a matter of legitimization, - so to speak - of a second degree, in which the legitimized money is converted into properties, with which the trace of the money is diluted, which is no longer only in the Bank of Costa Rica but in diverse real estate investments" (see folios 940 to 942; the bold letters are not in the original text). But, even though what is attributed to him is having kept those monies in his possession, redeeming the funds and then making the investments, it turns out that the intent had to be present at the moment of receiving the money, since that is what is privileged, as has been indicated, by the different conventional instruments, even those later and of broader scope than the legislation applicable to this matter, even if it is not the acquisition that is punished, but the subsequent acts. It is also evident that there is, in the case file, no proof that allows establishing, neither in this forum nor through a referral, those items nor distinguishing them from the amounts received before dual criminality came into being (to also weigh the issue of the statute of limitations for criminal action) so as to make a differentiation between one and the other, but rather this would require a new investigation or the production of new evidence, which, as will be said, is not possible. Now then, without dwelling on those evidentiary problems regarding the sum received by the accused after his brother's detention (for which, it is insisted, it is not determined how much of it, whether all or not, comes from the tax evasion and how much from the licit profits of such activity), it turns out that the construction of the knowledge of intent from the fact of that detention is not something that this Chamber endorses either. Note that the prior act with a causal relationship (the sale of cigarettes; not the possession of a weapon which has no relation to the capital nor the acts for which he was acquitted) was an element that was, even, widely discussed and controversial in the North American justice system itself, to the point that a judge of that country dismissed the charges, citing the ambiguity of the laws applied and the possibility that Nombre01 was unaware of the unlawful nature of what he was doing. That is to say, a judge's dismissal of charges was based on the possibility that Nombre01 incurred in what, in our system, would be the equivalent of an invincible mistake of law (error de prohibición invencible). Although that decision was later reversed by other jurists, it is important, for the purposes of the mistake of fact (error de tipo) alleged by the defence, in this specific case because... if in the eyes of a North American jurisdictional authority, with broad knowledge of the laws of that country, it was reasonable that Nombre01 doubted about the tax issue of the matter in question (sale of cigarettes in the indigenous reserve to which his wife belonged)... is it not more valid that Nombre01 himself, a man not versed in law, who had gone to the United States and worked in the commercial premises, which was open to the public and widely advertised in that country through mass media including the internet and whose tobacco cigarettes Nombre09 sent using even the postal service of that country, doubted it? Was it not more expected that Nombre01, who had been receiving money from his brother for more than four years (as of 2 August 2004), would doubt whether the origin of that subsequent sum was licit or not? It is true that, as the trial court's judgment rightly says, citing a foreign author: "'In any case, the use of the banking and financial system to recycle the profits obtained from different criminal activities has been a widespread and unpunished practice for many years, practically all over the world. Starting from a certain complicity of the financial system, this system has been used for the transformation of capital of illicit origin, coming from the commission of serious crimes, into money free of suspicion. Without a doubt, all of this would not have been possible if the banking institutions and financial intermediaries had exercised a little diligence and collaboration, detecting transactions of unclear origin. But some financial institutions have decided to ignore the illicit origin of the capital, to the extent that they obtained significant economic benefits. The free movement of capital in Europe requires improving the inspections of such capital at its origin, without this policy of intervention being able to be interpreted as an obstacle to its free circulation. For this reason, successive directives regulating banking, credit, and professional activities that affect the transformation of capital and assets have been approved.' Ferré Olivé, J, op. cit. p. 168. Contrary to the idea that exists in common knowledge, that the remittance of funds through banking channels automatically excludes the crime of Money Laundering (Legitimación de Capitales), as has happened in the case under examination, banking and financial institutions can be used to launder money, so that they can actively contribute to producing the harmful results of this criminal activity in the socioeconomic order" (see folios 932-933, the highlighting is added). However, although the banking system may have been and has been used in other cases and in different latitudes for the purposes of laundering, it is clear that this element must be weighed, together with others, to extract intent, since the one who sends a transfer of money clandestinely ("in sacks," the appellant refers to) is not the same as the one who does so using banking institutions of two countries, both standing out, although one more than the other, for their not insignificant controls on the monetary origins. Nor is the treatment that should be given to the evidence the same if the generating activity is illicit per se (assets obtained from drug trafficking, for example) as if it comes from tax evasion where there is a licit origin of the money, even if later the payment of taxes is omitted. Therefore, if in the specific case, Nombre01 had been transferring sums of money for years (sometimes for several million dollars, as described earlier in a transfer for more than two million, before the four million dollar transfer that is of interest) using North American and national banks, to which he reported the origin of these monies to the point that, in Costa Rica, banking authorities went to visit the referred business, confirming its existence and the publicity of its operations, that is important to consider for the purposes of the intent attributed here... could his brother's detention change his conception? In the view of this Chamber, no, because such detention occurred attributing to him a series of charges (homicide, arson, extortion, possession of a weapon) that had no direct relation to the origin of those monies. This on one hand but, on the other, as the appellants rightly refer, for this type of relationship crimes it was necessary that, because a process had been initiated in that country, said process had concluded with a final condemnatory judgment to generate knowledge, which is not potential, probable, but must be certain and current. Thus, this Court asks itself... what would have happened if Nombre01's trial had taken place in a parallel manner, or immediately after, the moment when the North American judge Hurley excluded the smuggling charges against Nombre01 and before the decision of the Court of Appeals? Had it proceeded this way, that element would have generated the reasonable probability of doubt in the accused's intent. Moreover... if Nombre01 had been acquitted in the United States for those acts, could the judgment's assertion be maintained that his detention was enough for Nombre01 to know the illicit nature of his acts? It is obvious that it could not. What is meant to be indicated is that, depending on the stages of the North American process at which this had been carried out, the answer to the question about the defendant's intent here would have been different, which is neither reasonable nor acceptable. It is not legitimate, consequently, to provide a variable solution, depending on the stages of a foreign process, to the same question (of whether there is intent by the accused). This makes the "inference" of intent that the Trial Court makes from a procedural act (Nombre01's detention) invalid, when he was acquitted of the majority of the charges; convicted of one without causal significance for the flow of money and for another whose case was widely discussed in that country, before jurisdictional authorities that, even, came to exonerate him, temporarily, from responsibility. Therefore, the allegation of error formulated by the defence is valid when considering a joint series of situations: a)- the transfer for years; b)- the use of banking institutions of both countries; c)- the declaration of the origin of the assets; d)- the lack of prior prosecution of any person for such acts in the United States, with Nombre01 being the first sentenced for such conduct; e)- the public and advertised activity of his company; f)- the type of business, sale of tobacco cigarettes, which is not an activity that is, per se, illicit. For this Court, based on all these elements, the accused Nombre01 had no reason to know that the money came from a serious crime (which, we have already seen, was not such) and, even if his error was avoidable, there is no parallel regulation for negligent acts (hechos culposos) of that nature in our system, so that, being, effectively, as the defender points out, a mistake of fact (error de tipo) and not a mistake of law (error de prohibición), the exclusion of intent made his behavior atypical: "The lack of knowledge or defective knowledge of any fact constituting the criminal infraction excludes intent, and gives rise to a mistake of fact. In the crime of money laundering, the exclusion of intent can be produced as a consequence of a lack of knowledge or defective knowledge of the typical action or the material object (…) More problematic is the question relating to the lack of knowledge that falls on the material object, fundamentally because criminal legislation relating to laundering uses normative elements in the description of the offence to describe the suitable objects (…) the doctrine does not consider it sufficient, for the purposes of typical intent, to know the configuring data of the factual premise of the normative element. It is required that the perpetrator carries out a parallel assessment in the sphere of the layman that allows them to understand the content of the social meaning of the premise" (See Nombre15. El delito de blanqueo de capitales. Aranzadi, Spain, 2012, pp. 763 and 765). It must be clarified, on this topic, that the trial court assessed this allegation as if it were a mistake of law, when it stated: "...the technical defence of Mr. Nombre01 argued that he acted under a mistake of law because he had no way of knowing that the money sent was related to an illicit activity. The Court cannot admit this argument by the Defence because, in accordance with the provisions of Article 35 of the Penal Code, mistake of law (error de derecho) supposes that the perpetrator of the conduct believed - by virtue of an invincible mistake - that the act they carry out is not subject to penalty. In this case, after the detention of Nombre01 in the United States, on the second of August 2004, his brother Nombre01 does not act - by participating in the redemption of the Growth Fund and the constitution of a new one in his name and by maintaining in his dollar savings accounts sums of money in the millions of dollars - being the victim of an invincible mistake, because he knows that the diverse conduct that Nombre01 had been carrying out - depositing the illicit monies from the account of Nombre08 and maintaining the Dollar Growth Fund in his name at the Bank of Costa Rica - changes as of the sixth of August and the only origin of the change is the detention of Nombre01 under diverse criminal charges, among which is the smuggling of cigarettes, with which Mr. Nombre01 acquires the certainty - that excludes an invincible mistake - that all the money remitted from New York is linked to the illicit activity to the detriment of the United States justice system and that the acts subsequent to that knowledge have the purpose of removing from possible freezing and/or seizure by those authorities the money coming from the cited crime and that was not paid to the United States treasury, which stopped receiving millions in taxes that were not collected by Nombre01 in his business, according to what witnesses Nombre08 and Nombre19 said in the Trial. As a consequence of the reasoning set forth, it is concluded that Mr. Nombre01 did not act under an invincible mistake under the terms of Article 35 of the Penal Code- because the origin of the money is revealed undoubtedly illicit, for Mr. Nombre01, as of the detention of Nombre01 on 2 August 2004, in the United States" (see folios 939-940, the highlights are added). Note that, on one hand, it alludes, again, to a subsequent intent: not because of the receipt but because of maintaining the money and carrying out the redemption of the Fund, which, additionally, had been nourished with monies that, we already said, did not arise from an activity that generated dual criminality until a certain date (2002) or that the trial court a quo itself affirmed were received without intent until another date (2 August 2004) and that, in short, the tax quota not paid is not on record. But, more importantly, the Trial Court started from the premise that the allegation concerned a mistake of law, which is erroneous reasoning because what was alleged was that Nombre01 did not know that the monies came from a 'serious crime' and, this being a normative concept of the description of the offence, he was alleging lack of knowledge of an objective element of the description of the offence and, therefore, the allegation effectively corresponded to a mistake of fact (error de tipo), where the consequences on the avoidability, or not, of the mistake, we well know, are different. In any case, it is fitting to reiterate the position that this Chamber, with a partially similar composition to the present one (Nombre30 and Nombre31), has outlined in similar cases, where the description of the criminal offence is constructed by the legislator with juridical normative elements, cases in which it has been indicated: "(1) On the nature of the error invoked. In principle, there is no great confusion when a mistake of fact (error de tipo) is defined as that which falls on the objective elements of the criminal offence, nor when alluding to a mistake of law (error de prohibición) as that which occurs both when the agent is unaware of the norm, considers it not in force, or interprets it incorrectly (direct) and when they are mistaken about the existence or limits of justifications (error of permission or indirect mistake of law) (...) What is necessary, however, is to determine the nature of the error involved when the criminal offence is constructed in such a way that, in its objective elements, it introduces terms such as "illicitly" "illegitimately" "illegally" "unlawfully", etc., since these terms become, then, normative elements of a juridical character which, by integrating the criminal offence, would eventually mean that the error alleged regarding them is, no longer one of law but of fact. On this subject, the doctrine states: "...it was Nombre32 himself who became aware of the novelty that normative elements of the offence 'discovered' by him posed in general terms; stated in summary: despite being components of the unlawfulness, as they are nonetheless elements of the offence, they would fall, for this author, under the rule of error on circumstances of fact (...) that is, they would require - unlike unlawfulness - to be encompassed by the subject's intent, as they would form part of the factual premise upon which the value judgment of unlawfulness is made, so that the error on a normative element of the offence would be what we today call a mistake of fact, or if preferred, in more neutral terminology, an error excluding intent." Nombre33, Nombre12. El error sobre elementos normativos del tipo penal. La Ley, 1st edition, Madrid, 2008, p. 42. Thus understood, the intent of the active subject must also encompass that juridical-normative element (...) If, as has been said, the vicissitudes of the permit are normative elements of the offence, errors about the scope of said permit constitute, then, mistakes of fact. That is to say, in this specific case, the active subject must know not only that they do not have a permit for carrying but, additionally, be clear that said permit is needed. Any false representation about the scope of those situations in which that permit is not necessary, which is precisely what is raised in the specific case, means that one is facing a mistake of fact. Therefore, the error invoked in this case is not a mistake of law (which would imply the general lack of knowledge that carrying a weapon is a crime in Costa Rica, an issue that is not the one raised) but rather a mistake of fact, that is, the false assumption alleged by the active subject that they did not require the permit because they were not carrying a weapon, but rather transporting it (as distinguished by the gunsmith), and that to do this latter it was enough to comply with the requirements established in the directive issued by the Ministry of Public Security, transcribed infra." Court of Criminal Cassation (Tribunal de Casación Penal), decision number 2010-641, the highlights are added. If in this matter it is alleged that the accused received the money unaware that it came from a ‘serious crime’ and this is a juridical-normative element of the criminal offence, the error alleged is one of fact, and not of law, the distinction being relevant because the avoidability of the error, in the first case, excludes the crime if there does not exist, as there does not in this matter, a parallel negligent type of crime (tipo culposo paralelo), whereas, in the second, it only reduces the penalty. So, the detention of Nombre01 in the United States on 2 August 2004 could at most produce an alert about the possibility of the illicitness of the conduct from which the funds originated, a probability that does not have the firmness to be certainty, taking into account the elements indicated previously. But if, from what has been indicated so far, important doubts can be inferred regarding the configuration of a ‘serious crime’ (because, for evidentiary reasons, the amount evaded in the United States relative to what was transferred is unknown; no financial analysis was carried out of what was received in each period and, due to the date of the acts, many of the monies transferred were so before the regulation applicable to this matter, in addition to the issue of dual criminality regarding the minimum penalty and the statute of limitations for criminal action) as a preceding element and, additionally, there are ample and well-founded reasons to cast doubt on the knowledge of that material object of the crime by the accused here, it happens, as if that were not enough, that the analysis of the matter cannot be exhausted in such aspects, because the criminal offence so many times cited contains subjective elements other than intent, which must be analyzed immediately.

§4. Other subjective elements of the offence, different from intent: "Alongside the cognitive element, there must exist in the crime of money laundering (legitimación de capitales) a will to conceal or cover up the origin, location, etc. of the assets that the agent knows come from a crime. Whoever receives, transfers, converts objects they know come from a crime in order to conceal or cover up their location, their destination, their ownership, etc.

acts with the required intent of endangerment (dolo de peligro) (...) The intent must extend to the elements of the objective actus reus (tipo objetivo)..." (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 127-128). Does that occur in this case? While the money was received at the Bank of Costa Rica, it was declared that it came from that cigarette sale, to the point that national banking authorities visited the company and issued a report on the matter. Record was kept of the transfers of funds to Nombre01's account and that he acquired farms or properties in his own name or in the name of companies where he is the sole or majority partner. Even those assets were identified with a stamp that Nombre01 used, and the people who worked for each business wore a uniform with his logo, as related at trial by Nombre34 and Nombre05 (see folios 861 to 870). Nombre01, in the United States, declared the existence of such assets for the purpose of offering them as collateral as part of the bail for his freedom that he was requesting, as also appears in the documentary evidence received from that country and in the statements of its government officials who testified at the hearing… so… is there an attempt to conceal? In the opinion of this Chamber, no, because the trail was easily verifiable, without the presence of the indicators which, admittedly not necessarily, are usually present in these cases: “…the usual way of proving that knowledge is through circumstantial evidence (prueba indiciaria) (…) among which case law usually highlights a series of irregular or atypical acts in routine financial or commercial operations, such as knowledge of the use of fictitious identities, the use of companies with no capacity or real economic activity, the non-existence of known economic activity, unjustified increases in wealth, etc. But all these indicators cannot dispense with that or those which demonstrate, even if only via inference, the causal connection between the assets…” (Cf. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the website of the Universidad Externado de Colombia: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, p. 81). Therefore, this is an additional reason to uphold the challenges and modify the judgment under appeal.

§ 5. On forfeiture (comiso): Regarding forfeiture (comiso), the Trial Court made no separation between the monies obtained when the acts were atypical (2001) and those obtained later; between those which, judging by the lower court's reasoning, were obtained without intent, being prior to Nombre01's arrest in 2004, and those obtained later; nor between the fruits obtained with one and the other. This would have been sufficient for that part of the decision not to stand. In any event, having indicated above the multiple reasons why there are well-founded doubts that the acts are typical, both objectively and subjectively, doubts which cannot be remedied because they arise from the Prosecution's evidentiary deficit, it is appropriate to reject the forfeiture (comiso) of all assets, also revoking the judgment on this point.

§ 6. In summary. The defense argument is valid that in this case, the money did not come per se from an illicit activity, as would be the case with a prohibited object; the object (sale of cigarettes) was not prohibited, only, eventually, the non-payment of taxes. However, in this matter, a conviction is not possible because: 1) dual criminality does not apply, since, when fitting the matter into national legislation, the acts committed by Nombre01 (the material object from which the funds originated) had a minimum prescribed sentence of less than Nombre01 years, which was the threshold that applied under the law governing this matter; 2) Nombre01 has not yet been sentenced in the United States, so the specific sentence that may be imposed on him is unknown, and whether it fits the national definition of ‘serious crime’ (delito grave) under the applicable national law; 3) the amount of the tax liability left unpaid each year, during which the criminal classification varies, was not individualized, and a cumulative calculation cannot be made; 4) the accused did not know that the money came from a 'serious crime' (delito grave) because the activity from which the funds originated was lawful (tobacco sale), even if the payment of taxes was not, an aspect on which there is no proof that the accused was aware; 5) his purpose was also not to conceal the activity from which the money originated; 6) the issue of the statute of limitations for criminal proceedings in both countries was not analyzed based on the annual amounts received. In summary, despite the trial judgment being a significant legal document that diligently and exhaustively addressed the matter before us, this Court does not agree with the conclusions reached, nor does it endorse the omission of aspects that are essential and affect the merits of the decision, without detracting from its form, since the judgment does contain the reasoning required for its validity, and such omissions originate from the prosecutorial investigation itself, cannot be remedied with new evidence, and mark the difference in opinion and outcome between that decision and this one. Nonetheless, the objective effort of the Trial Court (to the point of rejecting prosecutorial claims and pointing out to that body its abuses, including the one concerning the police deployment for the accused's arrest: see folio 970) is not in vain, because, in addition to respecting the opinion expressed there, it has allowed this Chamber to rule from this instance, without ordering any remand (reenvío), given that the errors and omissions indicated cannot be remedied at the trial level, as this would require new evidence or a reopening of the investigation, which is not possible in the face of an appeal filed (in those respects) solely in favor of the accused (see Article 447 of the Code of Criminal Procedure), as this would violate the principle prohibiting modification to the detriment (reforma en perjuicio). Therefore, both challenges must be upheld in the respects mentioned, and the appropriate course is to partially revoke the conviction decreed in the case file, as well as the decision on forfeiture (comiso) of assets, and instead, acquit Nombre01 of all penalty and liability for the offense of money laundering (legitimación de capitales) that has been charged against him, ordering the full restitution of the assets seized, sequestered, or registered, for which forfeiture (comiso) is rejected; as well as his immediate release and the cessation of any precautionary measure issued against him, if no other case prevents it, and ruling without special order as to costs.

IV.- The prosecutor from the Public Ministry, Ms. Natalia Sarkis Fernández, filed an appeal against the judgment, arguing, in its three sections, the incorrect exoneration of certain assets from the forfeiture (comiso) measure. In the first ground, she argues that Article 110 of the Penal Code and sections 83, 87, 93, and 94 of the Law on Psychotropic Substances were violated, since it was proven that the accused obtained assets and established companies starting in August 2004 to legitimize monies coming from Nombre01 and illegitimately acquired by him, despite which the forfeiture (comiso) of some of them was not decreed because the formal procedure of notifying the agents or resident agents of various companies had not been completed. She cites excerpts from the judgment and considers it erroneous not to have decreed said measure against the farms with registration numbers […] in the name of Nombre35. She points out that although the accused here was not notified in his capacity as representative of that company, Article 11 of the Law on Notifications states that a person can be considered notified if they have become aware of the proceedings, and the accused here appeared in the case file as of June 2, 2011, from which time he acquired knowledge of the entirety of the file, including the notation regarding such assets, which was reaffirmed with the accusation, at the preliminary hearing, and at trial, so, having appeared in the proceedings, he could exercise the defense of his interests. She requests the forfeiture (comiso) of such assets be ordered in favor of the Costa Rican Drug Institute. In the second ground, she alleges, again, that the decision of the Trial Court not to decree the forfeiture (comiso) of certain assets was incorrect, this time, those acquired by the accused in a personal capacity and consisting of the farms with registration numbers […], stating that although it was proven that the money for their acquisition came from the crime committed by Nombre01 and that the aim was to integrate and place them in the Costa Rican financial system to conceal his brother's illicit activity, the forfeiture (comiso) was not decreed because the mortgage creditors of those assets had not been notified to assert their rights. She points out that, although such communication was not made, that was not a reason for them to be excluded from said measure, because the rights of others over them could be claimed regardless of who the owner was. She cites in support of her thesis ruling number 1216-2005 of the Third Chamber and number 2011-1054 of the Criminal Cassation Court of Goicoechea. Finally, in the third ground, she alleges the incorrect application of the same normative provisions relating to forfeiture (comiso), this time of the monies found in Nombre01's dwelling […] during the raid, totaling approximately seventeen million colones and ten thousand dollars. She states that it was proven that all of the accused's commercial activities began as a result of his criminal conduct and that those monies, which were hidden in his house, were the profits from the commercial businesses he had undertaken, as they were cash reports from one of the companies and that, due to a previous theft, he did not leave them at the business but at his house, but the Court did not order their forfeiture (comiso) because that money was not included in the charged acts and because it was apparently the product of the commercial activities of the accused's businesses, which she deems erroneous. She requests the forfeiture (comiso) of that money in favor of the ICD. The defense did not respond to this appeal. The challenge is rejected. As was already stated, for this Chamber, the appropriate course is to acquit the accused of all penalty and liability for the acts charged against him, and, therefore, there is no legal basis to order the forfeiture (comiso) of the assets exempted from that measure by the lower court; rather, that measure must be lifted on the assets for which it was ordered, as indicated in the previous section. Regarding the legal nature, characteristics, and principles governing the forfeiture (comiso) measure, this Chamber, under the name of the Criminal Cassation Court and with its current composition, has stated, for example in ruling number 2010-1009: “... the first thing that must be done to determine the legal nature of forfeiture (comiso) is to establish the characteristics, effects, and scenarios in which it applies. Pursuant to Article 110 cited, forfeiture (comiso) requires, for its application: C.1) that a crime (delito) is being investigated, not a misdemeanor (falta) or infraction (contravención), this being so because the section begins by stating "Every crime (delito)" and that expression, in a restrictive sense (Article 2 of the Code of Criminal Procedure), can only be understood as referring to acts classified as such by the legislator (Book II of the Penal Code or special laws), who made the distinction with misdemeanors that have a different location in the normative body (Book III); C.2) that this crime be intentional (doloso). The provision does not expressly state this, but it indicates that what is lost are the instruments with which the unlawful act was committed and the things resulting from its commission. Commentators on the subject have stated, in our view, according to a restrictive interpretation consistent with the principle of legality, that the intentional nature of the measure is drawn from the provision for 'instruments' contemplated in the law, because these: '...for the majority of legal doctrine, are those that have been used 'intentionally' to commit the crime (...) thereby excluding, of course, those (...) of a negligent crime (delito culposo)' (Nombre36. Derecho penal. Parte general. Editorial Astrea, 3rd edition, Buenos Aires, p. 519. To the same effect: Nombre37, Eugenio Raúl; Nombre38, Nombre39 and Nombre40, Nombre39. Manual de derecho penal. Parte general. Ediar, Buenos Aires, 1st edition, 2005, p. 734; Nombre41. El comiso: análisis sistemático e instrumentación cautelar. Editorial Universidad del Rosario, 1st edition, Bogotá, 2007, p. 59 and 64 and others cited in Nombre42. El comiso de bienes. IJSA, San José, 1st edition, 2006, pp. 70-73); C.3) it would be applicable, in principle, to any intentional crime, as it is an institution regulated in the general part of the Penal Code, which is characterized precisely by its impact on criminal offenses within the code or in special laws; C.4) it may affect third parties provided they are made a party to the proceedings. This is not established by the provision, which, if interpreted in isolation, would lead to ignoring this requirement that arises from a systematic interpretation of the legal system and places Constitutional Law as what it is, the foundation of the rest of the normative hierarchy (see, in this regard, rulings number 712-2006 of the Third Chamber and 637-2010 of the Criminal Cassation Court of San José); C.5) forfeiture (comiso) does not affect the rights of the victim or good-faith third parties, rather, these prevail over the state's interest (in this sense, the rulings of the Criminal Cassation Court of San José, numbers 2000-76, 2000-323, 2003-383 and 2004-101 and those of the Third Chamber, numbers 512-2001 and 1273-2005, among others); C.6) the effects arise from the crime, so it is normatively provided that forfeiture (comiso) is decreed upon a conviction (sentencia condenatoria) (Article 367 of the Code of Criminal Procedure). Is 'crime' to be understood as a typical, unlawful, and culpable act or as the abstract stipulation of illegality referred to by the legislator? National case law, in general terms, has understood it as a legislative provision, without a specific declaration of liability, to the point that it has foreseen the possibility of forfeiture (comiso) with dismissals, prosecutorial archiving, definitive dismissal orders (sentencias de sobreseimiento definitivo), even due to the statute of limitations for criminal proceedings, acquittals, with alternative measures such as conciliations, suspensions of the process on probation, comprehensive damage repair, and payment of fines, among others (see the compilation of rulings made by Nombre02. El comiso de bienes. IJSA, San José, 1st edition, 2006, pp. 230-263); C.7) it lacks compensation, as it arises from a prior illegality, so it is an exception to the state's impossibility of assuming ownership of property without paying its value (Article 45 of the Political Constitution); C.8) it is a public order measure, so it does not require a request from a party but can be decreed ex officio; C.9) as a measure arising from the state's sovereign power, it must be provided for by law (Third Chamber, ruling number 1217-1999), issued in a reasoned or substantiated manner, and having had prior demonstration of the link or nexus between the object and the criminal act, so it is not a matter of strict liability (Third Chamber, ruling number 505-99); C.10) principles such as the presumption of innocence, due process, and the right of defense govern, so the burden of proof falls on the State; C.11) in Costa Rica, the forfeiture (comiso) of items used in the preparatory phase that does not become the execution phase is not normatively regulated; C.12) the destination of the assets, once the State obtains ownership, is expressly fixed by law (cf.: Law on distribution of confiscated or forfeited assets, its regulations and manual). D) Based on similar considerations in comparative law, attempts have been made to explain the figure in question by indicating that it is an accessory penalty (pena accesoria), a security measure (medida de seguridad), a civil consequence of the crime, or a sui generis legal consequence of the crime (this includes those who consider it a third class of sanction in criminal law together with penalties and security measures but, in reality, it would be a fourth avenue, since reparation has already been accepted as the third). We will analyze each of these options: D.1) Forfeiture (comiso) as an accessory penalty (pena accesoria): It has been said that forfeiture (comiso) is an accessory penalty (in this sense, the rulings of the Criminal Cassation Court of Cartago, numbers 2010-236 and 2010-265). However, the main criticism leveled against granting this legal nature is that forfeiture (comiso) does not respond to the essential purpose of the sanction accepted by our constituent and legislator, which is special positive prevention or resocialization (Articles 51 of the Penal Code and 5.6 of the American Convention on Human Rights), as it better aligns with retributive functions or negative general prevention (this is accepted even by the Criminal Cassation Court of Cartago in rulings numbers 2010-236 and 2010-265 by defining it as an accessory criminal sanction with a general prevention purpose). From this perspective, forfeiture (comiso) would also not respond to the principle of culpability, which requires not only culpability for its imposition (that is, a sanction could not be imposed without culpability, so it could not be imposed in the absence of a main penalty or in cases where the perpetrator is not sanctioned, even if there was a criminal wrong) but considers that it is gradable, which clashes with the rigid nature of the figure. Likewise, if it were a penalty, it would violate the principle regarding its highly personal character, since forfeiture (comiso) is applicable even against third parties, provided they are given a hearing in the respective process and the assets, with their consent, were used in the commission of crimes (...) Forfeiture (comiso) is also not provided for as an accessory penalty in Article 50.2 of the Penal Code, which regulates as such only the special disqualification (inhabilitación especial) defined in section 58 ibidem as the deprivation or restriction of one or more rights. This objection is both systematic (regarding the location of the figure) and from the perspective of constitutional principles, as it would clash with the principle of legality by exceeding the list of accessory penalties expressly contemplated by the Penal Code and the regulations specific to them. The difficulty could be overcome by stating that there is a prior law that provides for it for all crimes (Article 110 of the Penal Code); that there are other special provisions that designate it as a penalty (for example, the Wildlife Conservation Law), and that the figure contemplates the deprivation of a right: property. However, section 58 of the Penal Code itself states that the accessory penalties provided for as such by the legislator have a term, which is the same as that for absolute disqualification (inhabilitación absoluta) and ranges from 6 months to 12 years (Article 57), which is incompatible with the loss of ownership of the asset, which is definitive. Likewise, against any penalty, principal or accessory, there is the possibility of filing for review, which the Constitutional Chamber has indicated is incompatible with the res judicata that derives from forfeiture (comiso) (see ruling number 2001-8565). Finally, it should not be forgotten that according to Article 110 of the Penal Code: "...the assessment of forfeiture (comiso) shall be made after the civil liabilities arising from the crime are satisfied (...) undoubtedly, if forfeiture (comiso) retained the character of a penalty, it would not be admissible for the imposition of the penalty to depend on the satisfaction of civil liability." QUINTERO OLIVARES, Nombre43, Nombre44 and DE LLERA SUÁREZ-BÁRCENA, Nombre45. La responsabilidad civil ex delicto. Aranzadi, Navarra, 2002, pp. 45, 47. Therefore, either forfeiture (comiso) is not an accessory penalty, or, if it were, it would be unconstitutional for violating the aforementioned precepts, making it necessary to evaluate other possibilities. D.2) Forfeiture (comiso) as a security measure (medida de seguridad): Based on those questions, doctrine indicated that the issue was not that the measure was unconstitutional, but that it should not be seen as a penalty, and, in attempting to explain it, it was thought that its nature was that of a security measure (medida de seguridad), thereby overcoming the objection that it responded to a principle of culpability, since this is outside the scope of security measures, whose foundation is, rather, the dangerousness of the active subject. Forfeiture (comiso) and security measures also had in common responding more to special prevention criteria assumed in international instruments than to those of general prevention. But again, criticisms mounted. First, because dangerousness in security measures arises from the existence of a wrong that may not be present in forfeiture (comiso), which is based on a presumed objective dangerousness of the thing per se (in the case of instruments used to commit the crime, and particularly certain types of them, such as weapons). Furthermore, because this explanation did not avoid the highly personal character that security measures also possess, which is outside the scope of the forfeiture (comiso) figure (...) Moreover, in Costa Rican criminal law, the Constitutional Chamber declared security measures for imputable persons unconstitutional, leaving only curative security measures (see Article 98, subsections 3, 4, and 5, and rulings numbers 88-92 and 1588-98 of the Constitutional Chamber), and forfeiture (comiso), most of the time, is attached to a declaration of sanction for imputable persons and is not mentioned as a security measure (Articles 101 and 102 of the Penal Code), which are also governed by the principle of specificity and the prohibition of creation by analogy (Articles 97 and 2 of the Penal Code), in addition to having the possibility of cessation (Articles 100 of the Penal Code and 478 of the Code of Criminal Procedure), which is incompatible with forfeiture (comiso). In light of this, another option was proposed. D.3) Forfeiture (comiso) as a civil consequence or reparatory measure derived from the crime: although the Constitutional Chamber has referred to the figure from this perspective (thus in ruling number 2001-8565: "forfeiture (comiso) is one of the civil consequences of the punishable act, together with restitution and the reparation and indemnification of damages"), which has also been accepted by some cassation case law (see, for example, and among others, ruling number 787-2006 of the Third Chamber), the technical reality is that forfeiture (comiso) cannot be considered a civil consequence. First, because, as stated, in Costa Rica it can be decreed ex officio, which is foreign to the principle of party disposition and congruency in civil matters. Second, because it does not have a reparatory, restitutive, or compensatory character, to the point that Article 103 of the Penal Code lists it separately from those purposes, which are proper to consequences derived from crime. Third, because "Civil liability ex delicto constitutes an essentially civil issue, regardless of its being examined in the criminal process, which explains why there is no obstacle to its consideration being deferred, where appropriate, to the civil jurisdiction. And although the crime, with respect to the birth of this liability, is a necessary prerequisite, it is not sufficient, because the production of damage is also required, an essential element for the birth of all civil liability, whether or not the act that caused it is defined in the Penal Code" (Nombre46. Análisis jurídico-penal de la figura del comiso. Editorial Comares, Granada, 2004, p. 29), without it being possible to file, in civil proceedings, an isolated claim for forfeiture (comiso). Moreover, because "Civil liability is transmitted to heirs (...) but the same cannot be sustained regarding the heirs of the person responsible for the act. In cases of the death of the accused or prosecuted person without the forfeiture (comiso) having been agreed upon, it is not possible to apply..." (QUINTERO OLIVARES, Nombre43, Nombre44 and DE LLERA SUÁREZ-BÁRCENA, Nombre45. La responsabilidad civil ex delictio. Aranzadi, Navarra, 2002, p. 46). To this, national doctrine adds that its effects are not of private law but in favor of the State, despite the fact that Costa Rica did not follow the recommendations discussed during the drafting of the Model Penal Code for Latin America and placed the figure among the civil consequences. This, as stated, does not affect its true legal nature, and what can be inferred is that the provision was erroneously located, without that affecting its effects, concluding that "forfeiture (comiso) cannot be an effect of civil liability ex delicto; in its essence, it is not a civil sanction" (ABDELNOUR GRANADOS, Nombre03. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, p. 376). From these reflections, another possibility was proposed. D.4) forfeiture (comiso) as a complex act, an accessory, legal, mixed, or sui generis consequence of the crime: There are consequences derived from the crime that are so by provision of law, without sharing the nature of those other figures. In Costa Rican law, these include the matter of condemning the losing party to pay costs (Article 267 of the Code of Criminal Procedure); the publication of the judgment in crimes against honor (Article 155 of the Penal Code); the reconstruction, suppression, amendment, restitution, or registry rectification derived from the falsification of public instruments (Article 483 of the Code of Criminal Procedure); the registration of certain types of judicial decisions (Article 30, subsections Nombre05 and k, 25, first paragraph, 36, ninth and tenth paragraphs of the Code of Criminal Procedure and the Law of the Judicial Registry and Archive); and forfeiture (comiso). It has been regulated in this way in countries such as Germany and Spain and is accepted by the majority of doctrine, although without agreement on the ideal name to use, but making it clear that it does not share the characteristics of the institutions indicated in the previous sections: ¬"...Nombre47 criticizes unitary positions (...) noting that (...) forfeiture (comiso) is a phenomenon of a complex nature with a very broad functional scope, as it not only fulfills a penal function, but also those of restitution, compensation, police, and security, and even procedural functions of an evidentiary and precautionary nature (...) In the same sense, Nombre48 and Nombre49 are of the opinion of the complex nature of forfeiture (comiso) (...) Nombre50 (...) González Navarro proposes the mixed nature of the institution (...) In contrast to penalties or security measures, accessory consequences are coercive acts or sanctions of their own nature, legally linked to the imposition of a penalty for an intentional crime or misdemeanor, or may be linked to it through a judicial pronouncement in specific cases. Thus, the classification of forfeiture (comiso) (...) as an accessory consequence implies that its foundation is neither the culpability nor the dangerousness of the active subject of the crime." Nombre41, Nombre41. El comiso: análisis sistemático e instrumentación cautelar. Editorial Universidad del Rosario, 1st edition, Bogotá, 2007, pp. 59-60 and 62. Even our legislation originates from the Model Penal Code for Latin America, where the issue of the legal nature and correct placement of forfeiture (comiso) was widely discussed: "Finally, the opinion prevailed to place forfeiture (comiso) with a criminal character, but not as a penalty, and outside the civil consequences of the punishable act, rejecting the idea of this phenomenon as a procedural measure (...) One of the agreements of the Fourth Plenary Meeting held in Caracas, Venezuela, from January 20 to 30, 1969, No. 89, was to include a text on forfeiture (comiso), but on the understanding that it did not have the character of a penalty or an effect of civil liability (...) Why, then, when ordering the provisions of that Code, was (...) forfeiture (comiso) included under the Title (...) relating to 'Civil liability derived from the crime'? (Nombre51, Nombre03. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, pp. 369-370). G) Having said the above, this Court considers that, in effect, Costa Rican forfeiture (comiso) is, simply, a consequence designated by the legislator for the crime (for a certain type of crimes, as stated and will be revisited) which, although it has criminal features (legality, burden of proof, innocence, nexus with the act), civil features (it applies against third parties), and administrative features (state coerciveness and ex officio action), does not precisely match any of them, and, therefore, principles specific to penalties (like culpability or temporality), security measures (like personality), or reparation (like party disposition) cannot be applied to it. Hence, it is valid for the legislator to regulate it to be applied ex officio, establishing the loss of ownership as definitive, etc. However, that does not mean that, as a measure that deprives rights, which it ultimately is, it is not subject to principles such as legality and proportionality, which are inherent to any disciplinary matter, including in the area of administrative law, as they are the sole limiters of the State's sovereign power, as will be discussed in greater detail immediately below” (emphasis omitted).

In the present case, there is no act that is typical, unlawful, and culpable to decree such a measure, nor can any factual or legal basis be inferred to consider that the movable or immovable assets of the accused should be subject to said measure, since not only has the existence of any (criminal) crime not been demonstrated, but also no civil or administrative debts or unlawful acts, or the breach of regulations of any other nature, have been under discussion to make such a decision.

Therefore, it is not necessary to delve into the prosecutorial appeal that presupposes the unlawfulness of the conduct, which this Chamber does not share for the reasons extensively outlined above.

POR TANTO:

The appeal filed by the accused in a personal capacity with the legal representation of attorney Juan José Picado Herrera is declared with merit, and the appeal filed by his private defense counsel Carlos Luis Ibarra García is declared partially with merit. The prosecutorial appeal is declared without merit. Consequently, the guilty verdict decreed in the proceedings is overturned, as well as the ordered confiscation of property, and, in its place, Nombre01 is ACQUITTED of all punishment and responsibility for the crime of MONEY LAUNDERING (LEGITIMACIÓN DE CAPITALES) with which they had been charged, ordering the full restitution of the confiscated, seized, or encumbered property, whose confiscation is rejected; their immediate release and the cessation of any precautionary measure issued against them, if no other legal cause prevents it. The matter is resolved without a special ruling on costs. In all other respects, that is, where the judgment rejects additional confiscations, orders the lifting of precautionary measures, and the return of other property and administrative files, the original decision stands. NOTIFÍQUESE.

Rosaura Chinchilla Calderón Lilliana García Vargas Edwin Salinas Durán Judges Contra : Nombre01 Delito : Legitimación de capitales Ofendido : Sistema financiero y otros However, it considers the legal reasoning of the sentencing court to be misguided in drawing an equivalence between the detention (of his brother in the United States) and the guilt of both, since they demolished the principle from the moment Nombre07 was detained in the United States on August 2, 2004, when it was not until many years later that he was found responsible, a decision that to date is not final and not for all the acts attributed to him, none of which the accused in this case was in a position to know at the time he received and managed the money. Transcribing parts of the judgment, he relates that the jury trial in the United States against his brother began in October 2007 and ended in May 2008, where he was declared innocent of homicide, robbery, and arson but guilty of illegal possession of a weapon and illegal sale of cigarettes or smuggling, against which the defense filed various motions. In one of them, Judge Hurley reversed the jury's decision and exonerated him of responsibility for the sale of cigarettes (considering it probable that Nombre01 did not know about the legal prohibition on selling cigarettes without tax since the law was not sufficiently clear) and only maintained the charge of illegal possession of a weapon, all in January 2010. He points out that this crime allows, in Costa Rica, for a suspension of the process subject to conditions, so it does not necessarily have to result in a sentence, besides which, in the United States, facts for which he had been acquitted were taken into account as aggravating factors for the penalty. Finally, by analogy, in our country this is not a serious crime, nor can it be taken as the basis for the necessary pre-existing criminal act, having no relation to the money. Regarding the sale of cigarettes, the charges disappeared and, therefore, the accused here had no reason to doubt the funds received. Then, the U.S. government took that decision to the Court of Appeals, which, in July 2012, reinstated the smuggling charges without, to date, a sentence having been imposed; however, it is on that latter date that one can speak with certainty of the guilt of Nombre07 having been born into legal existence. Only from that moment could the accused here know that the money his brother sent was illicit. He indicates that, with the detention, the only thing he could know was that his brother was facing a legal process, but not that he was going to be declared guilty, a decision that had many favorable legal vicissitudes for his brother, as mentioned. He considers it arbitrary and illegal that the sentencing court relied on the date of the brother's detention to support this judgment, by saying that the accused, from that moment on, must have known the money was illicit. For this reason, they convict him and decree forfeitures (comisos). He requests that this Chamber expressly rule on the legality or illegality of that decision by the a quo. He adds that he could not know, merely from his brother's detention in New York, the illicit nature of the money he sent, proceeds from the sale of tobacco in the United States, an activity he remains convinced was legal and in accordance with the indigenous custom of that country. He adds that the judgment confuses charged crimes with proven crimes, making speculations without support in the actual decision of the U.S. courts, which is not yet final. He considers that, given this lack of a final decision, the Court self-attributed a “right” that did not correspond to it, but was only the concern of the U.S. Courts, namely, to judge whether the predicate crimes occurred in that nation, arriving here at practically a conviction against his brother, violating all procedural, legislative, and jurisdictional mechanisms because the judges overstepped, an action in which they also incurred egregious errors, such as taking into account a sworn statement from Mrs. Nombre01, the accused's sister-in-law and, therefore, someone who could abstain from testifying in our legal system, pursuant to Articles 36 of the Constitution and 205 of the procedural law, a matter the judges did not even question. “I believe the Court has exceeded its judging function, as it crosses borders and concludes from a process that is not finished there and over which it has no jurisdiction. Nor are we saying that the analysis of the pre-existence of the crime has to be (r, sic) very 'light' (sic) but it must necessarily be based on a judgment of guilt (…) And that responsibility belongs entirely to the Courts of the sister country and not to the trial court of our country” (folio 1020). He argues that if, as is the case in this matter, much of the tobacco sold was to Native American persons and, therefore, was tax-exempt, even accepting that some tobacco was sold to non-indigenous persons that did not pay taxes despite being required to, no accounting study was done and, therefore, it is unknown how much money sent from that country to ours was legal (proceeds from tax-exempt sales to indigenous people) and how much was not, questions that did not prevent the Court from convicting and ordering the forfeiture of everything, so the inference from the money sent is amphibological, generated doubts, and could not support a conviction but rather an acquittal. He states that his criminal intent (dolo) became tangible as of July 2012, not before, and that the Court broke the logical scheme of judicial analysis, as he is convicted before his brother, a pre-existing fact that should be final, which it is not. He requests his acquittal and the reversal of the forfeiture, as no prior illicit act exists, since it cannot be determined that the funds received are the proceeds of the illegal sale (and not the legal sale) of cigarettes and because, furthermore, the estate was increased by the generated dividends and interest, which was legal, despite which a generalized forfeiture was decreed. Alternatively, he requests a remand (reenvío). In the second ground, the violation of the principle in dubio pro reo and the incorrect assessment of evidence, contrary to the rules of sound criticism, are argued. He points out that he is not a lawyer and does not know U.S. law, so he had no reason to know that if his brother had been sending money legally and regularly through the national banking system, as of his detention on August 2, 2004, he should even suspect that this money was illicit, when, however, this decision has not been uncontentious in the U.S. judicial system, to the point that a judge revoked the jury's decision, and the local Court is not clear on which funds were legitimate and which were not, nor when the latter were moved, but rather started from the premise that everything received from the day of the detention, August 2, 2004, was illicit. He states there is no accounting that shows the amount of cigarette sales to non-indigenous people (who had to pay taxes) or the amount of sales to indigenous people (who did not have to pay taxes and, therefore, were legal sales), nor that all funds brought into the country were illegal, as what was sent to Costa Rica could have been the legal portion. He points out that, in this matter, it does not involve capital that is illegal throughout its entire movement, like funds from drug trafficking, but rather money obtained from tobacco sales, which are legal if taxes are paid for non-indigenous people, and that the transactions were carried out, not in sacks or furtively, but through the banking system of both countries, it being contradictory that Costa Rica decrees the forfeiture of goods and not that these be placed at the service of the U.S. government for its tax claims. He adds that the judges practically conducted a trial of his brother, as they considered the pre-existence of a serious crime proven without the process in North America having concluded, since no penalty has yet been imposed on Nombre01 to know if we are facing a serious crime. He requests a remand or the revocation of the conviction decision, with his immediate release. For his part, Mr. Carlos Luis Ibarra, private defense counsel for the accused, files an appeal. In what he improperly terms, given the type of appeal currently in effect, second ground on procedural grounds, the violation of Article 2 of the Code of Criminal Procedure is alleged because the sentencing court, attempting to make correct use of double imputation or identity of the norm (according to which both U.S. and national legislation must consider smuggling a crime), alludes to the penalty to justify this requirement, when what the doctrine indicates is that the conduct must be illicit in both countries, and in ours, it is regulated in Article 211 of the General Customs Law and not in the one mentioned by the a quo, which put words in his mouth that he did not say (such as that this double criminality did not exist). However, such a crime is punishable by a penalty of one to five years, so, as the minimum penalty for the preceding act is one year, it does not serve as a basis for the crime of money laundering (legitimación de capitales), which, therefore, has not been born into legal existence, since numeral 69 of Law No. 8204, before the 2009 reform, did not define what should be understood as a 'serious crime', nor did any other provision of the legal system, before the United Nations Convention against Transnational Organized Crime or Palermo Convention, which is not applicable to the matter. He points out that the lower end of the penalty must be taken, not the upper end, to know when one is facing a 'serious crime'. However, the Court made an analogical interpretation of numeral 92 of the Code of Tax Rules and Procedures No. 4755 of May 3, 1971 (an earlier and general law) where the crime of smuggling is not contemplated, which is provided for in a special and later law (General Customs Law No. 7557 of October 20, 1995) that was not applied and to which Article 1 of the Code of Tax Rules and Procedures itself provides exceptions, and to which numeral 223 of the General Customs Law refers. By doing so, the judges apply a norm that does have a minimum penalty exceeding five years and not the correct law, whose minimum penalty is one year, which would make it impossible for a serious crime to exist as the basis for the conduct being judged here. He requests the nullity of the proceedings for a new review. In the first ground of appeal on the merits, and with some doctrinal citations, the non-application of Articles 20, 102, and 182 of the Commercial Code is alleged because corporations have their own legal personality, and being a shareholder of them does not make that person their owner, nor does it turn the individual into the entire legal entity; instead, they remain two subjects with differentiated personality. He considers this important because the money received came from Nombre08 (a company owned by Nombre01's wife) with the U.S. bank Nombre09, without the physical agent or legal representative having to be personally liable for the obligations contracted by the companies, despite which the Court stated that the money transferred by that company was from Nombre07 and that it belonged to him, which finds no evidentiary support. In the United States, neither the company nor Nombre01's wife (an indigenous person) were reported, so these precepts are violated if it is considered that the money belonged to his North American brother, when the latter acted only as the representative of a company, according to the evidence provided at trial. Therefore, the crime of money laundering was never born into legal existence because there was no preceding crime by that company or its indigenous owner, but rather by the accused's brother (who, according to the testimony of witness Nombre01, was the owner of apartments and condominiums and a shopping center and managed that company, but whose effects are not attributable to him). He considers it impossible to make a division of the funds received by the accused's brother, in a personal capacity, from others and, for this reason, asks for an acquittal to be handed down. As the second ground of appeal on the merits, an expansive, analogical, and improper interpretation of Articles 69 of Law No. 8204 and 92 of the Code of Tax Rules and Procedures is criticized because the U.S. authorities found Nombre01 responsible for the crime of smuggling (selling cigarettes to non-indigenous people without paying taxes), conduct that, in Costa Rica, pursuant to double criminality, corresponds to that established in the General Customs Law (Article 211, called smuggling) and not in the Code of Tax Rules and Procedures, the former prevailing over the latter as indicated by Ruling No. 885-2003 of the Third Chamber. The crime contemplated in the General Customs Law provides for a minimum penalty of one year, therefore it cannot be conceptualized as a serious crime, since Article 69 of Law No. 8204, without the 2009 reform (where the threshold is set at four years), did not establish what should be considered as such. He requests the revocation of the sentence and the acquittal of the accused. As the third ground on the merits, the appellant, after summarizing the arguments outlined in other grounds, indicates that the principle of legality may have been violated because, when numeral 69 of Law No. 8204 states "whoever performs any other act," it transfers to the judge the power to define the criminalized conduct, throwing out the window the principle of legal reservation in matters of criminal classification, without such action being authorized by the Palermo Convention, which obliges legislation on the subject. He states that this is a blank criminal law, filled by administrative provisions, and points out that Nombre01 was detained on August 4, 2004, and the Court attributed to the accused having received money from him (which he managed under the figure of mandate and was not his, but that of a commercial company, which has not been accused of committing a crime, in addition to the fact that Nombre01 had other activities apart from managing the sale of cigarettes) as of August 6, 2004 (a transfer for four million four hundred thousand dollars that, he says, does not appear in the accused's accounting documentation) and during the years 2005 and 2006 (for almost six million dollars), i.e., when Nombre07 was already in prison, without it being possible to make transfers under such conditions and without that money necessarily having been the proceeds of the crime of smuggling, as this was not proven, but rather that the resources in the name of Nombre01—which fed the redeemed dollar growth fund and subsequent operations, carried out by the Banco de Costa Rica at the request of the accused—were transfers made by the company Nombre08 with Nombre09 Bank of New York, which was not accused of a crime and which, in the worst case, could be part of the dividends of that person, if she were a partner, without proving the quantum of these and without it being possible to know if all that money came from the sale of tax-free cigarettes to non-indigenous people or from other activities of Nombre01, none of which is established with certainty. He adds that the sentence attributed to the accused here the acquisition, with that money, of different real estate starting in 2007, but this cannot be an indication of anything, much less of concealing the origin, which was clear, since for a long time the money was stationary, and only the investment strategy varied, because the assets were always placed in the name of the accused or a company belonging solely to him, without seeking frontmen, keeping double accounting, opening accounts under simulated names, or in any other way making it difficult to trace those sums. He considers that the prior crime was not credited, that all those funds came from a legally established company in the United States (a place that is not a tax haven but is strict in its controls), and that they were subject to verification through that country's Patriot Act Law, being incorporated into the banking system of that country and ours, without any irregularity being found, which was maintained for several years, so the illicit origin of these funds could not, then, be presumed from one moment to the next, as it was not credited. He cites author Nombre10 to indicate that, even when the illicit origin of the money is known, if there is no eagerness to hide or conceal, the crime in question does not occur, and that the formula "by any act" violates the principle of criminal legality. He requests the revocation of the sentence and the acquittal of the defendant. In the fourth ground on the merits, the violation of numeral 34 of the Criminal Code is alleged because he argued the existence of a mistake of fact (error de tipo) on the part of the accused (and not a mistake of law as he says the judges incorrectly interpreted), in not knowing that the funds received and the purchase of properties in his brother's name made with those funds were done with illicit resources. He states that Nombre01 has been the first person convicted in the United States for the crime of smuggling for selling cigarettes tax-free to non-indigenous people because, by social policy, in that country, for a long time, such an illicit act was not punished, even though there was express law. He points out that, because of that ambiguous situation by the U.S. authorities, who decided not to apply a law, the sale of tax-free cigarettes on indigenous reservations could be considered something within the legal framework, to the point that it was done, and continues to be done, in plain sight and with public tolerance, which could have confused Nombre01, since the prohibition on pleading ignorance of the laws refers to national laws and not foreign ones. That is, he could have had a mistake regarding the facts constituting the crime of money laundering and not have knowledge, or criminal intent (dolo), that the money was illicit, and without criminal intent there is no subjective criminal element. He requests the revocation of the conviction and forfeiture-of-assets judgment. In the fifth ground on the merits, the improper application of Articles 87 and 89 of Law No. 8204 regarding the forfeiture of assets is alleged because the crime of money laundering is not proven beyond all doubt, since the money received was not demonstrated to come from a crime charged to its owner, the company Nombre08, or to its partner Nombre01. He requests the revocation of the ruling on this point and that the assets be released, returned to the estate of the accused.

In responding to the appeal, the Prosecutor's Office stated that the aforementioned appeals should be declared without merit because the situation of Nombre01 in the United States should not be weighed with the principle in dubio pro reo; that the four million dollars that the defense claims did not enter the accused's accounts are indeed recorded in the accounting reports and expert opinion, and that, aside from the smuggling situation, it turns out that the serious crime from which the funds came, according to the Prosecutor's Office and the proven facts, were those of murder for hire and others.

II.- Although these are two impugnment briefs, divided, in turn, into several arguments, because of their close interrelation, they have been summarized and will be addressed jointly, granting them, as will be stated below. First, it must be noted that this Chamber is not competent to determine whether the phrase "whoever performs any other act" contained in numeral 69 of Law No. 8204 violates, or not, the principles of legality and legal reservation, contained in Articles 39 and 121, subsection 1 of the Constitution, given that, in Costa Rica, the constitutional oversight body is of a concentrated type and rests with the Constitutional Chamber (cfr. Articles 4 and 73 of the Law of Constitutional Jurisdiction and 10 of the Political Constitution), so only that body has the competence to make declarations, erga omnes, of unconstitutionality; nor can this Court do so, not even for the specific case (see, to that effect, the discussion held in the majority ruling number 1185-95 of the Constitutional Chamber, binding erga omnes according to Article 9 of the Law of Constitutional Jurisdiction, on the interpretive scope of Article 8, subsection 1 of the Organic Law of the Judicial Branch). So, if the appellant has such a concern, he may raise it before that instance, following the procedure and formalities required by our legal system. Second, from the summary provided above, it can be inferred that only two of the arguments of both appellants relate to evidentiary issues, namely, the ownership of the money transferred from the United States to Nombre01 (whether it belonged to Nombre01, his wife, or a company and, in the latter case, whether it mattered that Nombre01 was only its legal representative and the person sentenced in the United States) and the issue concerning the right of abstention (derecho de abstención) of the latter's wife, not warned of, despite incriminating documents being admitted. However, this Chamber will defer the order of analysis of the claims to—even apart from the correctness, or not, of what was decided on those topics—rule on the merits of the case, as will be indicated. The rest of the arguments require an exhaustive analysis of the crime of money laundering, both in its objective and subjective structure and in its genesis and regulation in Costa Rica, which allow for the resolution of the case, without the need to cover those issues, i.e., even hypothetically accepting, for argument's sake, what the trial judgment said on the matter.

§1. The crime of money laundering is defined, by the majority doctrine, as a relational or linking crime (not as an autonomous crime), meaning that it requires the connection with a prior criminal act (Cfr. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26 and Nombre12 and BACIGALUPO, Silvina. Política criminal y blanqueo de capitales. Nombre13, 2009 and the authors referred to therein).

This prior act can be defined by the legislator in very diverse ways (alluding to a list of crimes, to the severity of the sanctions, or, in much broader terms, assuming any other crime as possible) but it is necessary that it exist and that means that —if it is attributed to a particular subject— that subject must have been tried and found responsible, with finality, for the crime (unless that has not been possible due to personal circumstances, grounds for exemption from penalty, in which case the demonstration of the criminal wrong will suffice, provided that this is not incompatible with the specific legislation of each country). Only when that direct imputation is not possible (either because the perpetrator was not identified, because the perpetrator died, or because the criminal action was extinguished for certain reasons, excluding the statute of limitations for the criminal action because the validity of said action in both legislations is necessary, for the purposes of that assessment, unless there is a rule to the contrary, which there is not here), said prior act can be demonstrated, within the trial regarding the asset legitimization (legitimación de capitales), obviously based on the evidentiary rules of the judging country. As has been indicated, this is so in general terms and without ignoring that there are modern trends which, to circumvent the evidentiary issue of the prior 'serious crime' (in singular), prefer to allude, on one hand, to 'criminal activity' (which implies displacing the emphasis on the level of prior accreditation that the different strata of the Theory of Crime must have, according to the system followed), making it possible for the crime to be committed by the same agent of the preceding event (which is not possible if it is considered a relational crime) and, on the other hand, to give this crime the nature of an autonomous offense, establishing a differentiated legal interest (which is no longer the administration of justice as usually happens in crimes of concealment but rather the socio-economic order) which, some doctrinal sector has forcefully condemned: "...this perspective, generally unconfessed openly and camouflaged under the generic formula of protection of the socioeconomic order, has led to legal and interpretive perversions, which have not only led to an abusive application of money laundering (lavado de capitales) offenses, but have also, and paradoxically, reduced the effectiveness of criminal types in relation to their criminal-political interest. The first perversion of this criminal-political idea consists in the expansion of the predicate offenses (delitos base) of money laundering to any crime, not even a serious one, and including tax fraud. The second, related to the previous one and, like the previous one, based on the unconfessed attempt to evade the requirements of evidence in Criminal Procedural Law, has to do with the loss of secure contours of the typical element that the perpetrator acts with knowledge that the assets subject to laundering originate from a crime" (Cfr. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26. Also on the website: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pág. 66). By this, it is meant to advance, from now on, that this Chamber agrees with such author when he points out that: "...the intent requires, therefore, knowledge of the concrete risk or danger that a conviction exists, the only thing that can give content to the normative element 'crime' in the types of money laundering. The existence of a prior conviction is, therefore, an indispensable part of this normative element of the type of money laundering, however much one wants to ignore it in doctrine and jurisprudence. The best demonstration that this is so is that proof that the assets do not proceed from any crime, that is, that there is no conviction whatsoever, must imply the acquittal of the alleged launderer due to objective atypicality of their conduct" (Op. cit., pág. 78) for which it is a true nonsense that a process for asset legitimization has been initiated in our country for proceeds from a prior activity that is not, per se, illicit, when the cause that supposedly originated that event (the sale of cigarettes, to non-indigenous persons, without the prior payment of taxes) does not have, to this date (and much less at the date of the accusation) a final judgment in the country of origin, since the penalty that could be imposed on Nombre07, brother of the accused here, in the United States of America for such conduct is still unknown and without it being sufficient, to resolve that issue (which is a normative element of the type as was advanced), the testimony of some persons who mention the probable penalty that can be imposed on him which, it should be said in passing, due to that same national ignorance, may not have been interrogated and, therefore, omitted regarding all the punitive particularities of the Anglo-Saxon system, such as the minimum extremes of that crime, which will be taken up later. Additionally, it is necessary to point out that, if the countries in which the prior act was committed (understanding 'crime' or 'criminal activity' which is not only a question of terminology but, as indicated, has important legal consequences) and the legitimization act being judged are different, double identity or double criminality (doble identidad o doble incriminación) must apply, that is, that the prior act, from which the capital sought to be legitimized is said to come, must also be a crime in that country where the said legitimization is being judged and, unless there is express legislation that regulates it otherwise, it must not be prescribed in either of the two. National doctrine states in this regard: "The prior act from which the object of economic interest derives, in turn the material object of the crime of asset legitimization, must be at least typical and unlawful, that is, provided for as a crime in a criminal law and not covered by a justification defense, without it being necessary that it be culpable (limited accessoriness), that is, it does not require that the act be committed culpably by the prior perpetrator nor that it be punishable in general, except for exceptions. The German §261 StGB explicitly says that the object of economic interest must come from a 'rechtwidrige Tat' (unlawful act). The death of the prior, typical, and unlawful perpetrator has no influence in relation to (sic) the prosecution of the crime of asset legitimization. The prior act must be sufficiently concretized and determined. The prior act, which is apt to connect with the crime of asset legitimization must be punishable in the Costa Rican jurisdiction and if it is situated outside the national territory and (sic) it must be equally punishable in the foreign jurisdiction. When the prior act is prescribed, the question arises whether prosecution for the crime of asset legitimization is possible. The predicate offense must be punishable in Costa Rican Criminal Law and a prescribed act, in general, is not. Some German authors consider that if the prior act is prescribed it is an irrelevant fact for the prosecution of the crime of asset legitimization. However, the majority German doctrine and almost the entirety of Swiss doctrine consider that when the prior act is already prescribed, a conviction for the crime of asset legitimization is not possible. The reason for the foregoing is that the crime of asset legitimization is a crime connected to the prior act and if the State renounced the prosecution of the latter, it is not possible to prosecute the connected crime (...) It is not necessary that the perpetrator of the prior act be known or alive or, when it took place abroad, that there be a final judgment convicting for the prior act or that it be prosecuted by the competent foreign authorities (...) I believe it is necessary for the Tribunal to determine the existence of the prior act and its typical and unlawful character, without mere suspicion that the object comes from a punishable act being sufficient. The establishment of the proof of the prior act can be done by final judgment, if it was known by a competent authority. If this evidence is lacking, the typical and unlawful character of the prior act, which is a normative element of the type of asset legitimization, can be proven. This proof must be made by the judge cognizant in the country of the crime of asset legitimization in accordance with the criteria of freedom of evidence and free evaluation of evidence. In any case, the establishment of the prior act by the national judge as a normative element of the criminal type of laundering legitimization (sic) does not imply issuing a judgment on national soil regarding the prior act that occurred abroad" (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1st edition, págs. 91-94; emphasis supplied). A thesis which, in principle and except for what will be said, this Chamber shares, with the caveats that although German legislation may require a criminal wrong for the prior act, this is not unanimous in all legal systems since many allude to 'crime' and one must abide by what each one regulates, on one hand and, on the other hand, that we do consider it necessary that, if the act is deemed committed abroad, a process has been followed or is intended to be followed and, if there has been one, the foreign conviction is provided (which is not a procedural prerequisite but a normative element of the type), unless, as already advanced, it is impossible to determine the perpetrator or personal causes for the exclusion of punishability have occurred since, otherwise, an illegal trial of the prior act would occur, by a non-competent authority. Moreover, both crimes, that is, the base act with the link crime, must have a logical relationship with each other, since, however much a prior act is criminal in two different legal systems and meets all the legal provisions to be validly considered as a preceding act (that is, that it has the minimum amount of penalty or is on the list of those enunciated as such by the legislator), if there is no logical connection nexus between the prior event and the later one, it would be wrong to attempt any sanction: "The nature of the link between the asset suitable for laundering and the prior act is another of the problems to resolve. A doctrinal sector admits that the connection between both must be of a causal type. This seems logical to the extent that the assets susceptible to being laundered must have their origin, their cause, in a prior criminal act, derive from it (...) it therefore seems necessary to set limits, that is, the determination of the criteria that produce the rupture of the causal link. This way of reasoning leads us to the analysis of a series of criteria, as a consequence of which an interruption of the causal nexus may occur, determining that the assets can no longer be considered to come from the prior act. This need for limitation is linked to the fact that the question of provenance would ground a regressus ad infinitum not admissible in principle. An essential part of the legal economy could be considered contaminated in a short period of time as a consequence of an excessively broad and unlimited interpretation of the criterion of provenance or origin. This situation has been criticized by Swiss doctrine for being contrary to the constitutional guarantee of property acquired in good faith" (Nombre15, Isidoro. El delito de blanqueo de capitales. Aranzadi, 3rd edition, 2012, pág. 341). This requires establishing both objective limits prior to the possession of the allegedly laundered object, and subsequent limits, a theme for which the theories of the equivalence of conditions, adequacy, and objective imputation have been used to, in cases of mixing licit and illicit assets, determine if total contamination, total decontamination, partial contamination, etc. applies. For what matters here, for now, it is clear that, for example, if a millionaire drives drunk in their country and that conduct is sanctioned with imprisonment, the fact that they transfer millionaire sums of money to another country, however much they intend to evade the criminal consequences (fine) or civil consequences (liability) derived from that driving, could not be considered to be asset legitimization, because the money did not have its origin in the crime, but rather pre-existed and, therefore, the evasion of liability cannot be sanctioned using the crime that concerns us. On the other hand, by virtue of the principles of innocence and non bis in ídem, if the prior act was prosecuted abroad and the accused person was acquitted or the judgment demonstrated that the illicit act was not committed, it is not feasible for it to be constituted as a basis for a subsequent asset legitimization, nor is it possible for the national courts to retry it, with new evidence or re-evaluating in a different way the evidence weighed there, because it would affect the principle of res judicata material guaranteed both by our Political Constitution (article 42) and by the international human rights instruments signed by the country (see articles 8.4 of the American Convention on Human Rights and 14.7 of the International Covenant on Civil and Political Rights). This, in general terms, because a specific analysis must be made of the criminal type applicable to the factual species submitted to our knowledge, to determine if all those doctrinal criteria are extrapolable to domestic law and if the selected criminal type contains other important elements (principle of legality). For this, it is required to determine which criminal law is applicable to this matter, given that there have been Nombre09 several that regulate the subject.

§2. Law applicable to this case and objective elements of the type: (a) In Costa Rica, before 1988, no crime similar to the one commented on existed, neither in name nor in elements, but rather the criminal legislation, mostly collected, as it should be, in the Penal Code —and not scattered, as now, in multiple special laws— only provided for some crimes of concealment, such as receiving stolen property, receiving things of suspicious origin, real aiding, and personal aiding (cfr. articles 330 to 332 of the Penal Code, renumbered by laws Nº 7732 and 9048 and according to the SINALEVI system). (b) It is with law Nº 9093, of April 22, 1988 (published in the Supplement Nº 16 to La Gaceta Nº 83 of May 2, 1988), Ley sobre Estupefacientes, Sustancias Psicotrópicas, drogas de uso no autorizado y actividades conexas, in which, for the first time, this subject is regulated in a manner very similar to the current one, in article 15 which stated "Prison from eight to fifteen years shall be imposed on whoever carries out any act or contract, real or simulated, for the acquisition, possession, transfer, or disposal of assets, tending to hide or conceal the origin of economic resources obtained through the illicit trafficking of drugs or crimes related to that activity independently of the place where the illicit act was committed. When the act was committed abroad, its commission may be accredited by any means" (emphasis supplied). Note how this first regulation circumscribed the scope of application of asset legitimization to those obtained from activity related to drug trafficking. What should be understood by drug? Article 1 of that law made a reference to substances causing dependency. However, although there are many substances that cause it (including alcohol, tobacco, some sodas, and even coffee), it was not the medical-cultural criterion that should be used to unravel the meaning of the term, but rather "drugs" is a normative concept, of a legal type, which must be filled based on legal definitions adopted by the country and which, because they exist, are restrictive and predominate over cultural criteria (article 1 of the Penal Code). Thus, the Single Convention on Narcotic Drugs (signed by Costa Rica on March 30, 1961, and incorporated into the national legal system through law Nº 4544 of March 11, 1970) established several lists (I, II, III, and IV) of substances subject to state control, among which tobacco, which is what was traded here and from whose sale the profits forming the basis of this proceeding originate, was not mentioned. It is worth adding that already in that international regulation, crimes related to drugs and narcotics were alluded to as "serious crimes," without this term being defined (see articles 36.1; 36.2.a.iv). Nothing was expressed either regarding tobacco in the Protocol Amending the Single Convention on Narcotic Drugs (signed by our country on March 25, 1972, and incorporated into the national legal system through law Nº 5168 of December 26, 1972); in the Convention on Psychotropic Substances (signed by Costa Rica on May 31, 1972, and incorporated into the national legal system through law Nº 4990 of June 10, 1972) nor, finally, in the United Nations Convention against Illicit Traffic in Narcotic Drugs or Psychotropic Substances (signed by Costa Rica on April 25, 1989, and incorporated into the national legal system through law Nº 7198 of November 1, 1990). (c) That first law against drug trafficking was reformed by law Nº 7233 (Ley sobre estupefacientes, sustancias psicotrópicas, drogas de uso no autorizado y actividades conexas, published on May 21, 1991) which, in its article 17, established: "Prison from eight to twenty years shall be imposed on whoever intervenes in any type of contract, whether real or simulated, of alienation, investment, pledging, assignment, conversion, transfer, keeping, or concealment of the nature, origin, location, destination, or circulation of the profits, things, valuables, securities, or assets coming from the criminal acts defined in this law or from the economic benefit obtained from said crimes, provided they knew of that origin and tend with those actions to hide or conceal the origin of the resources or to elude the legal consequences thereof, independently of the place where those illicit acts were committed. The personal aiding of the crime established in this article shall be sanctioned with the penalty indicated for the perpetrator. When drug trafficking or the crimes related to that activity, including those referring to the conducts defined in this article, have been executed abroad, their respective demonstration may be accredited by any means of proof, provided that the guarantees established in national legislation and in the international conventions accepted by Costa Rica for the protection of the rights of the accused are respected. The banks of the National Banking System must provide the reports related to the conducts defined in this article, which are requested by the Public Ministry or the judges of the Republic, even in the preparatory instruction phase. The judges may also order that any documentation or means of proof that the banks had in their possession be delivered to them, when necessary for an investigation. The resolution agreeing the foregoing must duly substantiate the need for the report or the contribution of the evidentiary means" (emphasis supplied). In this legislation, the referred article no longer referred to a normative-legal concept not contemplated in the rule, but rather, expressly, therein the legitimization of assets was directly related to the other crimes defined there, within which, it should be indicated, there was none allusive to the commerce of tobacco or different from narcotics trafficking.

(d) Law No. 7786, in force since its publication on May 15, 1998, pronounced similarly, in its section 1, circumscribing the scope of action of that regulation to activities related to the substances described in those international instruments (within which, as already stated, tobacco did not appear) since it stated: "*This law regulates the prevention, use, possession, trafficking, and commercialization of narcotics, psychotropic substances, inhalable substances, and other drugs and pharmaceuticals capable of producing physical or psychological dependence, included in the United Nations Single Convention on Narcotic Drugs of May 30, 1961, approved by Costa Rica through Law No. 4544 of March 18, 1970, amended in turn by the Protocol Amending the Single Convention on Narcotic Drugs, Law No. 5168 of January 8, 1973; as well as in the Vienna Convention on Psychotropic Substances of February 21, 1971, approved by Costa Rica through Law No. 4990 of June 10, 1972; likewise, in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of December 19, 1988, approved by Costa Rica through Law No. 7198 of September 25, 1990; in addition, the regulations on this matter that are approved for inclusion in the lists that the Ministry of Health must prepare, keep updated, and publish annually in La Gaceta. Furthermore, the control, inspection, and supervision of activities related to inhalable substances, drugs or pharmaceuticals, and the products, materials, and chemical substances involved in the elaboration or production of such substances are regulated; all of the foregoing without prejudice to what is stipulated on this matter in the General Health Law, No. 5395 of October 30, 1973. Likewise, financial activities are prevented and sanctioned, as a way to avoid the penetration of capital from crimes of illicit trafficking and other related offenses and of all procedures that may serve as means to legitimize capital from drug trafficking. It is a function of the State, and the adoption of necessary measures to prevent, control, investigate, avoid, or suppress all illicit activity relating to the subject matter of this law is declared to be of public interest*" and which, in its section 72, typified: "*A prison sentence of eight to twenty years shall be imposed on anyone who: a) Converts, transfers, or transports economic goods that **proceed, directly or indirectly, from the illicit trafficking of narcotics, psychotropic substances, or related offenses**, to hide or conceal their illicit origin or to help, through such conversion, transport, or transfer, any participant in the commission of one of these crimes to evade the legal consequences of their acts. b) Hides or conceals the nature, origin, location, destination, movement, or true ownership of resources, goods, or rights relating to them, with knowledge that they proceed directly or indirectly from the illicit trafficking of narcotics, psychotropic substances, or related offenses. The sentence shall be ten to twenty years when the previous acts are committed by employees, officials, directors, owners, or other authorized representatives of financial institutions*" (emphasis added). Said law was in force until January 10, 2002. (e) On January 11, 2002, Law No. 8204, called "*Comprehensive Reform of the Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use, **Money Laundering (legitimación de capitales)**, and Related Activities*", was published in La Gaceta No. 8. This body of articles had the particularity of expanding the criminal spectrum it regulated, since its Article 1, in addition to referencing the substances mentioned in those international conventions accepted by the country, mentions, in the fourth and fifth paragraphs: "*Furthermore, financial activities are regulated and sanctioned, with the aim of preventing the penetration of capital from **serious crimes (delitos graves)** and of all procedures that may serve as means to legitimize said capital. For the purposes of this Law, **serious crime shall be understood as conduct constituting a crime punishable by deprivation of liberty of four years, **<u>as a minimum</u>**, or a more severe penalty***" (boldface added). In this context, section 69 stated: "*A prison sentence of eight to twenty years shall be imposed on: a) Anyone who acquires, converts, or transmits economic goods, knowing that **<u>these originate</u>** from a **serious crime**, or performs any other act to hide or conceal the illicit origin or to help the person who participated in the infractions evade the legal consequences of their acts. b) Anyone who hides or conceals the true nature, origin, location, destination, movement, or rights over the goods or the ownership thereof, with full knowledge that they proceed, directly or indirectly, from a **serious crime**. The sentence shall be ten to twenty years in prison when the economic goods originate from any of the crimes related to the illicit trafficking of narcotics, psychotropic substances, money laundering, diversion of precursors or essential chemical substances, and related offenses*" (emphasis is not original). Of course, legislative activism did not stop there; rather, three additional regulatory changes occurred that are important to review: (f) On October 29, 2004, the *Law against Corruption and Illicit Enrichment in Public Office* No. 8422 of September 14, 2004, was published in La Gaceta No. 212, which, in its Article 47, states: "*Receiving, legalizing, or concealing goods. A person who hides, secures, transforms, invests, transfers, custodizes, administers, acquires, or gives an appearance of legitimacy to goods or rights, with full knowledge that they have been the product of illicit enrichment or criminal activities of a public official, committed on the occasion of the office or through the means and opportunities it provides, shall be sanctioned with a prison sentence of one to eight years.*" That is, a crime of money laundering (legitimación de capitales) was created specifically for capital originating from functional crimes. (g) Likewise, in Supplement No. 29 to La Gaceta No. 143, on July 24, 2009, the *Law against Organized Crime* No. 8754 was published, in whose Article 1 it was indicated: "*Interpretation and application. Organized crime is understood as a structured group of two or more persons that exists for a certain period and acts in concert with the purpose of committing one or more serious crimes. **The provisions of this Law shall apply exclusively to investigations and judicial proceedings in cases of** national and transnational **organized crime**. For everything not regulated by this Law, the Penal Code, Law No. 4573; the Code of Criminal Procedure, Law No. 7594, and other concordant laws shall apply. **For the entire penal system, a serious crime is one that, within its range of penalties, can be sanctioned with a prison term of four years or more***" (boldface added). Regarding this regulation, it is worth commenting that it defined ‘serious crime’ as one punishable by a penalty of four years or more, regardless of where in the punitive scale that amount was (minimum or maximum extreme), but it was enough that the act *could* be punished with such a sanction. However, the article is contradictory because, on the one hand, it states that this definition is for the entire penal system when, immediately before, it had stated that the provisions of that regulation would only apply to cases of organized crime. This law arose from the obligations contracted by the Costa Rican State upon subscribing to the *United Nations Convention against Transnational Organized Crime*, known as the *Palermo Convention*, adopted on November 15, 2000, and approved through Law No. 8302, published in La Gaceta No. 123 of June 27, 2003. This international instrument, in Article 2.b), defined 'serious crime' as follows: "*...shall mean conduct constituting an offence punishable by a maximum deprivation of liberty <u>of at least</u> four years <u>or a more serious penalty</u>*" (the underlining is external) which is a contradiction in terms because if it is a maximum penalty, it cannot be stated that it is of "*at least*" or that it can be a higher penalty. In any case, both laws are subsequent to the accusation that concerns us here and, as will be seen, are not more beneficial for the accused, such that they cannot be applied retroactively (Articles 11 and 12 of the Penal Code and 34 of the Constitution). Finally, (h) Article 2, point 1, subparagraph a) of the *Law to Strengthen Legislation against Terrorism*, No. 8719 of March 4, 2009 (published in La Gaceta No. 52 of March 16, 2009, and in force since then), changed the name of the law that concerns us so that, henceforth, it would be called "*Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use, Related Activities, Money Laundering (legitimación de capitales), and **Terrorist Financing***" and the content of Article 1 was reformed by said law, where the reference and definition of 'serious crime' is suppressed and, in its place, it broadly establishes that, with said law: "*Furthermore, financial activities are regulated and sanctioned, in order to prevent money laundering and actions that may serve to finance terrorist activities, as established in this Law.*" For its part, in Article 2, point 1, subparagraph b) of the aforementioned Law No. 8719 of March 4, 2009, the content of section 69 was modified to read as follows: "*A prison sentence of eight (8) to twenty (20) years shall be imposed on: a) Anyone who acquires, converts, or transmits economic goods, knowing that these originate **from a crime that, within its range of penalties, can be sanctioned with a prison sentence of four (4) years or more**, or performs any other act to hide or conceal the illicit origin, or to help the person who participated in the infractions evade the legal consequences of their acts. b) Anyone who hides or conceals the true nature, origin, location, destination, movement, or rights over the goods or the ownership thereof, with full knowledge that they proceed, directly or indirectly, from **a crime that within its range of penalties can be sanctioned with a prison sentence of four (4) years or more**. The sentence shall be ten (10) to twenty (20) years in prison when the economic goods originate from any of the crimes related to the illicit trafficking of narcotics, psychotropic substances, <u>money laundering (legitimación de capitales)</u>, diversion of precursors, essential chemical substances and related offenses, conduct typified as terrorist, in accordance with current legislation, or when the purpose is the financing of terrorist acts and terrorist organizations*" (emphasis added). In this last regulation, the laundering of capital in a chain (proceeding from a previous crime of the same nature) was regulated, unnecessarily given the definition of 'serious crime', and a legislative errata was needed to correct some internal defects (see publication in La Gaceta No. 63 of March 31, 2009), which says a lot about the criminal policy and penal technique it incorporated. It is true that, in addition to the law, in many of the cited international instruments, ratified by the Costa Rican State, the state obligation to repress money laundering (legitimación de capitales) or asset laundering was established, but the assumption of an international obligation does not generate, *ipso facto*, the creation of criminal norms, since these require a formal law, that is, issued by the Legislative Assembly, following the procedure for that purpose established by the legal system and the establishment of a specific penalty per conduct, none of which those conventions have; they allude to the need to prevent certain behaviors, define them, may recommend punitive frameworks, etc., without fulfilling those requirements derived from the Principle of Criminal Legality. From the foregoing "legal archaeology," the following can be extracted as first important conclusions for the matter at hand: *(i)* In Costa Rica, the crime of money laundering (legitimación de capitales) did not exist until May 2, 1988, because, before that date, what was regulated in the Penal Code were crimes of concealment (encubrimiento), without foreseeing many of the conducts aimed at distracting the product of the crime now listed in other special provisions; *(ii)* From May 2, 1988, until January 10, 2002, the only money laundering that was penalized was that arising from the commerce of drugs, narcotics, or psychotropic substances—substances that do not include all those that generate addiction, but only those internationally listed and within which tobacco was not foreseen; *(<u>iii</u>)* Starting from **January 11, 2002**, the punitive spectrum was expanded to sanction the money laundering of capital from ‘serious crimes’ and this term (normative-legal element of the criminal type) was legally defined as any crime that had a <u>minimum</u> extreme of four years in prison, which was maintained until **March 15, 2009**, except for goods from crimes committed by public officials, taking advantage of their positions, which, from October 29, 2004, to date, came to be regulated in an independent regulation that, incidentally, despite the proclamations set forth in the Statement of Motives of the bill, rather notably lowered the penalty for this event; *(iv)* Starting from March 16, 2009, money laundering could originate from any crime sanctioned with a prison term of four years or more (except, as already stated, from functional crimes regulated more benignly in the special regulation), regardless of whether or not that is the minimum or maximum extreme of the sanction, but it is enough that, in the abstract punitive range, that is one of the possible penalties to impose. This recount is of special importance in this matter, given the principle contained in Article 11 of the Penal Code, derived from the old aphorism *nullum crimen nulla poena sine previa lege*, according to which "*Punishable acts shall be judged in accordance with the laws in force at the time of their commission*" except, of course, if later laws more favorable to the accused are enacted (Article 12 of the Penal Code) which, it should be stated at once, does not happen in this case because, as can be seen from the recount made, not only did the later laws maintain the same penalty or increase it, with respect to the previous ones—except for the case of functional crimes, not applicable to the species—but they expanded the normative spectrum of the prior acts that can give rise to money laundering. Likewise, because, by virtue of the principle of correlation between accusation and sentence (Article 365 of the Code of Criminal Procedure), only the acts charged could be taken as proven. It was thus that the proven facts of the judgment, keeping the attribution intact, state, as relevant: "*As proven facts of interest for the resolution of the present matter, the Trial Court lists the following: 1) **Between the years 1996 and 2004,** Nombre07—brother of the accused Nombre01— **<u>was investigated, important evidence against him was gathered, and he was charged</u>** for activities typical of organized crime in New York, United States, **among which are the commission of crimes of contract homicide (homicidio por encargo), assault, kidnapping, arson, robbery, extortion, and <u>tax evasion</u>, with the purpose of promoting the commercial activity of his company P,** <u>a business selling tax-free cigarettes</u> located on the reservation […] and consequently with the sales limitations imposed by such location. 2) With the execution of the cited criminal acts, the organization led by Nombre01 boosted the commercial activity of the company P, thus achieving—in an illicit manner—the obtaining of large sums of money that he subsequently sent by bank transfers to the Banco de Costa Rica with the purpose of evading the consequences of such illicit acts of smuggling. 3) In the year **2000** the District Attorney's Office of the Eastern District of New York <u>initiated an investigation</u> against Nombre07 for violations of the Racketeer Influenced and Corrupt Organizations Act **<u>having as its basis the illegal sale of tax-free cigarettes outside the indigenous reservation</u>** described and that operated in Long Island, New York. 4) **Between the year 2000 and the year 2004, Nombre07, knowing of the investigations being conducted against him, transferred his income held in Banco Nombre09 of Mastic, New York, United States to the account in his name, number […] and to account number […] in the name of the accused Nombre01, both at the Banco de Costa Rica**. 5) In addition to the sending of money, Nombre07, on **October 3, 2000**, constituted in our country a Growth Fund in Dollars at the Sociedad Administradora de Fondos de Inversión of the Banco de Costa Rica, which by August 12, 2004, maintained an accumulated fund of US$10,350,248.00.

• 6)On July 17, 2000, in San José Centro, before Notary Public Juan José Picado Herrera, Nombre07 and the accused Nombre01 appeared, and through deed one hundred thirty-two of volume twenty-nine of the protocol, Nombre07 granted a General Power of Attorney without limit of sum to the accused Nombre01, for all his business, denoting the trust and closeness between them. 7) On August 2, 2004, Mr. Nombre07 was arrested in New York on the occasion of the aforementioned charges and was sentenced to a penalty of 10 years in prison for the crime of possession of a prohibited weapon, which he is currently serving in New York. 8) Between 2002 and 2004, the accused Nombre01 received from Nombre01 and held in his Banco de Costa Rica savings account number […] the sum of US$16,783,980.00 (sixteen million seven hundred eighty-three thousand nine hundred eighty United States dollars). In said account, on August 6, 2004—knowing of the arrest his brother was suffering and of the illicit origin—the accused Nombre01 received, to conceal, the sum of $4,400,000.00 (four million four hundred thousand dollars, US currency), a transfer made by TMG Nombre16 PARTNERS, a company linked to Nombre07. 9) On August 12, 2004, the accused Nombre01 requested from the Sociedad Administradora de Fondos de Inversión (SAFI) of the BCR, the redemption of the sum of US$10,350,248.00 (ten million three hundred fifty thousand two hundred forty-eight United States dollars) from the Dollar Growth Fund in the name of Nombre07, for which he provided the express request to that effect signed by Nombre01 on August 11, 2004. With that money under his control, the accused Nombre01 deposited it into his savings account […] to subsequently constitute a Dollar Growth Fund in his name for the global sum stated. 10) With such actions, the defendant Nombre01 managed to accumulate the total sum of $14,750,248.00 (fourteen million seven hundred fifty thousand two hundred forty-eight US currency), which he concealed to prevent US authorities from pursuing and seizing the funds derived from Nombre07's illicit activity. 11) Once the accused Nombre01 managed to have in his name the totality of the funds transferred by Nombre07 and following his instructions, starting in 2007 he proceeded to dispose of the funds of illicit origin, through the acquisition of movable and immovable property located in the province of […]. 12) The assets that the accused Nombre01 acquired under this criminal modality are (...) 13) The monies laundered by the accused Nombre01 and the acquisition of movable and immovable property acquired by him, harmed the socio-economic order of the Costa Rican State" (see folios 846 to 848; emphasis supplied). Note, then, how three topics of interest arise from the proven facts: 1)- the defendant is accused of receiving money from his brother, money whose origin, as alleged, came from activities concerning organized crime in New York, United States, among which were the commission of crimes of murder for hire, assault, kidnapping, arson, robbery, extortion, illicit possession of a weapon, and tax evasion. However, of all those charges, it must be said from here, the defendant's brother was convicted, with finality, only for the illicit possession of a weapon (according to the jury verdict of May 1, 2008: see document 897, p. 2 of judicial assistance file 11-91-1035-PE, folio 348) and although on that same occasion he was convicted by the jury for cigarette tax evasion, upon his appeal, District Judge Denis R. Hurley dismissed the charges on April 16, 2010, and acquitted him, arguing the reasonableness that Nombre01 was unaware of the law's applicability (see documents from folios 352 to 371, translation file of criminal assistance 11-91-1035-PE, tome II) and then, a state appeal caused that, as of July 16, 2012 (moments before the development of this debate), the Court of Appeals for the Second Circuit of the United States, composed of judges Guido Calabresi, Denis Chin, and Susan L. Carney, reinstated the 2010 jury verdict (see documents from folios 672 to 726/Tome II), the fixing of the penalty for that act still pending, even at this date, which denotes, prima facie, the debatable nature of the point in question. The cited doctrine makes a differentiation between "illegal money," also known as "dirty money," which originates in per se criminal activities and whose subsequent laundering is referred to as 'recycling' or 'washing,' and the notions of "tainted funds" or "black money" that comes from lawful productive activities, with the consequent evasion of tax effects, and whose laundering process is alluded to by the name 'money whitening.' Then, to situate ourselves immediately, based on the proven facts and the final acquittal of Nombre01 for the crimes of extortion, homicide, arson, etc., whose factual basis cannot be used in another matter without contravening the principle of res judicata, here we are facing 'whitening' operations of 'black' or 'tainted money' and not the former phenomenon. Although the issue of criminal organizations is mentioned, the facts cannot be judged under the domestic regulations governing organized crime (both in law and through conventional ratification) because it had not been approved by then and, as if that were not enough, the defendant's brother was acquitted, with finality, of the remaining crimes alluding to that topic (see document 904 of Nombre17, evidence file 3 provided by the defense, official translation, at folio 113). It is important to emphasize this because, even the prosecutor, in the oral hearing held in this court, referred to the other crimes, which constitutes, at the very least, a regrettable omission on her part, especially considering it was the same prosecutor who attended the debate and received the evidence firsthand, so the duty of objectivity incumbent upon her (Article 63 of the Code of Criminal Procedure) would require, at the very least, to leave it so stated, which she not only did not do, but attempted to ignore with the sole reference to the US prosecutorial indictment; 2)- the defendant was accused of receiving money from him, originating from those activities, and subsequently investing it; 3)- it was demonstrated that Nombre01, the defendant's brother, transferred to the country, between 2002 and 2004, just over sixteen million dollars, leaving some sums in his name and others in the accounts of the accused here, to whom, on July 17, 2000, he granted a general power of attorney without limit of sum for the administration and disposition of his assets. With part of that money, on October 3, 2000, a dollar growth fund was constituted at Banco de Costa Rica and, approximately four million dollars of that sum were transferred on August 6, 2004, the date on which the defendant's brother was arrested in the United States. On August 12, 2004, the defendant redeemed that fund, transferring the monies to accounts in his name, it not being until after 2007 that Nombre01 began to invest part of that money in the acquisition of various types of movable or immovable property, which he registered both in his name and in the name of companies where he appeared as the principal shareholder. Relating the facts accused and proven with the normative recount carried out above, it must be said, then, that any event of that accusation, referring to the money acquired, administered, and disposed of from the illegal sale of tobacco, attributed to the defendant prior to January 10, 2002, is atypical. In this condition is the period that begins in 2000 and up to that date, since he was never accused that this money came from crimes related to drugs or narcotics, the only crimes that, by then, could constitute the basis for money laundering, rather the attribution is the tobacco activity and its tax-free sale, which is what, ultimately, must be assessed in this case. As already stated, for the remaining crimes, the accused's brother was acquitted with finality, and the illicit act of possession of a single firearm without a permit is not a fact capable of generating money laundering, even though it has a broad punitive range in the country of origin that would allow it to be considered a 'serious crime,' since it would lack a causal relationship with the obtaining of the money intended to be laundered. This, it is insisted, involving a single weapon, as it could be different if referring to a whole arsenal, which implies its subsequent commercialization, something that falls outside the factual hypothesis of this matter. Likewise, given that the last proven facts occur in 2007 (when he disposes of the assets), it is not possible to apply the later regulations to the defendant, that is, the reforms introduced through Law No. 8719 of March 4, 2009, which modified the content of numeral 69 of Law No. 8204, and which indicated that money laundering could originate from any crime punishable by four or more years of imprisonment, regardless of whether this was, or was not, the minimum end of the sanction, it being sufficient that it was within the punitive range, because that is a later, more detrimental rule. In other words, the law applicable to the facts occurring after January 10, 2002—all the remaining accused facts—is that which expressly states that a 'serious crime' is one that has a minimum penalty of four years. For this reason, the statement contained in the lower court's judgment is unacceptable, according to which: "...By virtue of the temporal validity of the rules provided for in the Penal Code, the applicable rule to the facts under examination is the one in force from the year two thousand two until the year two thousand four, that is, the one that links the assets being laundered to a serious crime, without a penalty being endorsed to that concept of seriousness" (see folio 935; emphasis supplied) because, although the applicable law was correctly selected, it was not analyzed in its entirety, that is, in relation to Article 1 of that same regulation, where the criminal seriousness was indeed linked to an amount of penalty which, moreover, the legislator expressly established must be the minimum end of each criminal type. Having extracted the two previous conclusions, it must be added that the entire reasoning of the Court, considering the prior crime to be tax evasion on cigarettes (and not the possession of a weapon which, it is insisted, lacks a causal link to the fact before us; nor the other acts for which the defendant's brother was prosecuted and acquitted) was based on that: "...dealing with the crime of smuggling indicated, whose maximum penalty is five years, it does meet the requirement of having a maximum penalty greater than four years. In the Court's opinion, the rule that corresponds in our legal system to fulfill the Principle of Double Imputability is Article 92 of Law No. 4755 of May 3, 1971, Tax Code of Norms and Procedures, which sanctions with one that corresponds to the crime attributed to him in the charges filed against Nombre07 from the year (sic) that is, the money coming from the cigarette smuggling attributed to Nombre07 comes from a serious crime that is also contemplated in the Costa Rican legal system, so the argument of the defense counsel to the effect that the Conventional Principle of double imputability is not met is inadmissible; and on the contrary, the Court considers it a proven fact, certainly, that the money remitted to Banco de Costa Rica by Nombre07 originated from a serious crime contemplated by the Costa Rican criminal legal system" (see folio 936, emphasis supplied). Note how the judges of the lower court themselves indicate that the conduct of Nombre01, in the United States, has its equivalent, in Costa Rican legislation, in that crime, which has a maximum, not a minimum, penalty of over five years, which would imply that the mentioned requirement is not met since, as will be stated, the abstract minimum penalty is less than four years, none of which the a quo mentioned. Nor did the lower Court conduct any analysis of whether Nombre01's act could be considered 'serious' in US legislation, that is, whether there it was punishable by an abstract minimum penalty of four years, which was important for the purposes of the aforementioned dual criminality. Recall that, due to national investigative urgency, the derivative process advanced more quickly than the underlying case and, on the date of this decision, there is no official record that, in the United States of America, a penalty has been imposed on Nombre01 for that act of which, furthermore, it is unknown if it is a 'serious crime' under the terms defined by our regulations. To resolve that issue, it is not enough to say that Nombre01, the defendant's brother, while the national process was developing in parallel, specifically on July 16, 2012, was found guilty of the illegal possession—that is, without prior payment of taxes—of cigarettes, in the United States, on which occasion the Court of Appeals for the Second Circuit upheld a government appeal against the ruling of Judge Hurley of the District Court for the Eastern District, which, in turn, in January 2010, had dismissed the jury conviction he had received in May 2008. And it is not enough, because witnesses reported that a sentence remains to be imposed on him. Although the judgment mentioned that: "The penalty to be imposed for this crime (…) according to Nombre18 could be up to 20 years in prison" (see folio 897), nothing was said about the minimum limits that, in that country's legislation, this sanction—which has not yet been imposed—might have, which is highly relevant, as will be seen. Nor was any evidence provided regarding the scope of the foreign law, which, in accordance with the provisions of Article 30 of the Civil Code (applicable to this matter by provision of numeral 14 of that same regulation), which states: "He who bases his right on foreign laws must prove the existence of these," should have been done, as it concerns foreign regulations that the party using them must prove, which, in this case, is the Costa Rican State through the prosecutorial entity, given that the defendant is protected by his constitutional state of innocence (Article 39 of the Magna Carta).

Furthermore, if one analyzes the statement that served as the basis for that information from the Court, that is, the statement given by Nombre19 (see folios 850 to 855), an assistant attorney in the United States, it is found that she specifically stated the following on this topic: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">"I am an assistant attorney in the United States, I am responsible for representing the Government in civil and criminal cases</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\"> (...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> my position is similar to a prosecutor but at the federal level, we investigate federal crimes, the prosecutor is at the state level </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">Mr. Nombre01 is accused of being part of this organization, and </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">he committed violent crimes</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> to help in this negotiation </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> the trial lasted </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">until May 2008, the jury found him guilty of the conspiracy that was based on cigarette smuggling, also of having </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">weapons</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> in his possession, on the other charges the jury found him not guilty, after the jury delivered the verdict, in the U.S. system </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">the defendant can request that the charge be dismissed</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\"> (...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> the judge had dismissed the matter related to the conspiracy </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">, when the sentence was handed down the only thing left was the charge for possession </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> Judge Hurley set aside </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">the verdict stating he was not guilty of the smuggling conviction, the United </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">States took this decision to a higher court, our proceedings are held in the District Court, the appeal was in the Court of Appeals, in July of this year the Court of Appeal overturned </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">Judge Hurley's verdict and the decision was handed down in July 2012, the charges against him for smuggling were reinstated, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">he has not yet been given a new sentence, but he will receive this sentence for the acts of smuggling</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">, this decision by the judge establishes Nombre01 as guilty of the crime of smuggling, this decision confirmed </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">the jury's verdict, there is no new trial, simply what the jury established in May 2008 is reinstated, the sentence has not yet been handed down, what he </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">faces is a penalty of </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">up to</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> twenty years in prison </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">In fact, this case is not in the city of New York, in federal law there is a law that refers to smuggling, it is the CCTA Law, under federal law it is a crime to possess cigarettes that do not pay taxes, at the time of the case it was possessing more than 360,000 cigarettes, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">not paying taxes on the cigarettes makes them illegal to possess, the possession of cigarettes that have not paid the tax is smuggling, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">the act of smuggling is punished by up to 5 years</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">, but in the case of Mr. Nombre01 he was charged </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">with extortion and part of the extortion was the smuggling, for the pending crime the penalty will be for extortion, they are called predicate acts of the crime</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> the crimes on which the jury found </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">Nombre01 innocent, these cases cannot be appealed further, but </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">I think</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> that Judge Hurley would consider the robbery and murder as part of the conspiracy, there are laws in the United States and New York for tax evasion" </span><span style=\"font-family:Arial\">(emphasis supplied). That is to say, the witness started from her own speculations and did not refer, since no one inquired about the matter, to the punitive limits of the crime of smuggling, mentioning, based on her position within that country's criminal process, two very different punitive amounts: five and up to twenty years, but without indicating the abstract minimum provided for in the law, which is what our law requires, and alluding to facts for which the accused was acquitted as if he had been convicted, aspects that not only speak to her credibility but also to the impossibility of using her testimony to prove what is lacking in our jurisdiction, since it would violate the principle of res judicata</span><span style=\"font-family:Arial; color:#010101\">. Indeed, if it is valid in the United States of America to use the circumstances of a person's acquittal as relevant facts to impose a penalty for another crime, the same cannot be said in Costa Rica, where Article 8.4 of the American Convention on Human Rights (not signed by that country) states: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">"An accused person acquitted by a final judgment shall not be subjected to a new trial for the same acts"</span><span style=\"font-family:Arial; color:#010101\">, so the abstract penalty amount to be imposed could not consider aggravating factors derived from conduct for which he was acquitted. In any case, the reference made by the judges, as already stated, was only to whether the equivalent act, in Costa Rica, was a serious crime, and they assumed that it was, alluding to a maximum penalty of five years. However, that detail, underlined above in the transcript, seems to be the result of an error by the trial court, since Article 92 of the </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Código de Normas y Procedimientos Tributarios</span><span style=\"font-family:Arial; color:#010101\"> (amended by Article 2 of Law Nº 7900 of August 3, 1999, and before the reform by Article 1 of Law N° 9069 of September 10, 2012, </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">"Ley de Fortalecimiento de la Gestión Tributaria"</span><span style=\"font-family:Arial; color:#010101\">, subsequent and more detrimental), stated:</span><span style=\"font-family:Arial; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Article 92.- Inducement of error to the Tax Administration. When the amount of the </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101\">defrauded amount</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> exceeds </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">two hundred base salaries</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, it shall be punishable with imprisonment of </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">five to ten years</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> for whoever induces error in the Tax Administration, through data simulation, deformation or concealment of true information, or any other form of deception suitable to induce it into error, with the purpose of obtaining, for oneself or for a third party, a pecuniary benefit, an exemption, or a refund to the detriment of the Public Treasury. For the purposes of the provisions in the preceding paragraph, it shall be understood that: a) The defrauded amount </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">shall not include interest</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, fines, or punitive surcharges. b) To determine the aforementioned amount, if it involves taxes whose period is annual, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">the quota defrauded in that period shall be considered</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">; for taxes whose periods are less than twelve months, the amounts defrauded during the period between January 1 and December 31 of the same year shall be added. For other taxes, the amount shall be understood to refer to each of the concepts for which a taxable event (hecho generador) is subject to determination. It shall be considered a legal excuse for absolution if the person remedies their non-compliance, without any requirement or action by the Tax Administration to obtain the remedy. For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action taken with notification to the taxpayer, aimed at verifying compliance with the tax obligations related to the tax and period in question" </span><span style=\"font-family:Arial; color:#010101\">(the emphasis is supplied). That is, that law did contemplate, as a minimum penalty, five years of imprisonment, which denotes an error in the reasoning transcribed in the trial court's judgment (since that amount is mentioned as the maximum penalty) but also an omission, since, as the appellant rightly points out, not only is there no reasoning but, worse still, there is no evidence whatsoever, neither expert nor of any other kind, that refers to </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">what the amount was of what was left unpaid to the United States Government in taxes</span><span style=\"font-family:Arial; color:#010101\">, which is the only illicit aspect of that money (and not the totality of the income derived from the cigarette sales), nor can it be presumed (against the principle of innocence) that it constitutes all the money transferred, since the sale of tobacco or cigarettes, like any commercial activity, generates some profit once taxes are paid, in addition to the fact that, as was established by the very statements of Nombre19 (see folio 854) and Nombre20 (folio 872), the money transferred by Nombre01 also came from other diverse activities he had in that country. Having reached this point, it is necessary to point out how controversial it is in comparative law to consider </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">tax evasion as a predicate offense (delito previo)</span><span style=\"font-family:Arial; color:#010101\">. To this effect it has been stated: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">"The tax voracity of developed States, especially European ones, has imposed a gradual and perverse shift of the crime of money laundering from its strict original meaning, that is, from the intention of criminally prosecuting the legitimization of assets originating from certain criminal activities – drug trafficking, corruption, and organized crime, above all – to serving as an instrument of tax control and collection </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> it has reached the point of admitting that it is sufficient to commit the crime of money laundering if the assets come from any crime – which does not even have to be serious – </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> and, furthermore, that it is not necessary that the assets proceed from a prior criminal activity that acts as the cause or source of their obtaining, rather it is sufficient that they have not been subjected to the corresponding taxation to be able to subject them to the criminal regime of money laundering. This way of understanding the crime </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> is criminally-politically incoherent and technically inconsistent, since </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> it not only ignores the criminal-political rationale behind these crimes and turns a large part of the population into money launderers, thus confirming, by the way, the preventive ineffectiveness of these criminal types, but it also </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">is based on a contra legem interpretation of the typical requirement that the crimes subject to laundering have a criminal </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101\">origin</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\"></span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> The technical and criminal-political basis of money laundering types is that the typical element '</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">assets that have their origin in a crime'</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">means that the cause of obtaining the assets is a predicate offense, that is, prior to obtaining them, and that, therefore, laundering does not target assets that, once lawfully obtained, are simply withheld from fulfilling their tax obligations</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, because these assets do not 'have their origin in a crime' and, moreover, they are usually patrimonially indistinguishable from those that have been subject to taxation. What is technically and criminal-politically decisive for the typicity of laundering is, therefore, that the origin of the assets, that is, the cause of their obtaining, are predicate offenses – drug trafficking, bribery, kidnapping... – distinct from tax fraud, because tax fraud in itself does not generate the assets, it is not the origin of the assets, rather it simply conceals from the Public Treasury the assets lawfully obtained" </span><span style=\"font-family:Arial; color:#010101\">(Cf. Nombre11. </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales</span><span style=\"font-family:Arial; color:#010101\">. Cuadernos de Política Criminal Nº 91, 2007, pp. 72 and 74. Also at the following electronic address of the Universidad Externado de Colombia: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98). This discussion is taken up by national doctrine in the following terms: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">"...the legislations of some countries such as Spain [In Spain the 2010 law </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">expressly admits that </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">the defrauded tax quota</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> may constitute the material object of money laundering] like Germany expressly declare that profits generated by a tax crime can be a predicate offense for the crime of money laundering. In France, Belgium, and Italy, it has been case law that has stated that the tax crime can be a predicate offense for laundering. In Switzerland, it has been the doctrine</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\"> (...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Part of the Spanish doctrine [Nombre11 </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> Cobo del Rosal/Zabala López Gómez </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Quintero Olivares] believes that the crime of tax fraud cannot be a predicate offense for the crime of asset laundering, because </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">the quota that must be paid for taxes does not originate and does not have its origin in a crime</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, rather the income was lawfully acquired by the perpetrator </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Nombre21 adds that the crime of tax fraud is a crime of omission, and crimes of omission cannot be predicate offenses </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> because a causal relationship cannot be established between the omitted action (the payment of taxes) and the assets already incorporated into the person's assets by virtue of a prior, non-criminal act. According to this author, one could not resort to </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">hypothetical causality in the sense of considering the property illicit because of the circumstance that if the required action had been taken (the payment of taxes), the part of the assets affected by the fulfillment of the obligation would not be part of the active subject's assets. According to this thesis, the profit </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">from a lawful activity does not become unlawful solely because taxes are not paid on it</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> or because it is concealed to avoid paying taxes</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\"> (...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Article 174 of the Russian Penal Code (in force since 1996), starting from the thesis that the person obligated to pay taxes has </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">earned their resources lawfully, considers that there is no money laundering in the event that the predicate offense is tax fraud, because there are no resources that come from a crime" </span><span style=\"font-family:Arial; color:#010101\">(Nombre14. </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">El delito de legitimación de capitales</span><span style=\"font-family:Arial; color:#010101\">. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 83-85; emphasis supplied). The latter author addresses the subject, for national legislation, considering that a distinction must be made between tax fraud and the withholding of collected taxes not delivered to the Treasury, but concludes by stating: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">"The amount of defrauded taxes is a sum of money that is a proportion applied to the taxable base (levy). It is true that the agent, as a result of their defraudation, receives nothing, but rather ceases to pay the corresponding tax quota. But this tax quota not paid by virtue of the tax fraud, which is measured in money, is a suitable object for the crime of laundering"</span><span style=\"font-family:Arial; color:#010101\"> (Nombre14. </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">El delito de legitimación de capitales</span><span style=\"font-family:Arial; color:#010101\">. Editorial Jurídica Continental, San José, 2012, 1st edition, p. 87). From these positions it is evident that the solution is not, therefore, undisputed and was absolutely bypassed in the trial court's ruling, despite the fact that the national typical formula is very similar to those commented on by foreign authors when it provides that the assets "…</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101\">originate</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> in a serious crime"</span><span style=\"font-family:Arial; color:#010101\"> without, then, the obtaining of the assets having been the tax crime, but rather the activity of selling tobacco, even if the profits from it were magnified by the non-payment of those taxes, which is a different matter. Despite the foregoing, even if it were accepted that a tax crime can be a 'predicate offense' for money laundering, it would always be required not only that the tax crime has, in Costa Rica, a minimum abstract penalty of four years (according to the legislation we are applying, which is not the same as that commented on by the Costa Rican professor) but also that, in such a situation, </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">it be specified whether the tax quota left unpaid</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">in each tax period</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">exceeds the amount of base salaries that makes that penalty possible.</span><span style=\"font-family:Arial; color:#010101\"> In this Court's view, without entirely dismissing the profound dogmatic objections referred to above, what prior tax crimes as a basis for money laundering raise are other issues: on one hand, of an evidentiary nature, to distinguish the net flow of transmitted capital, mostly coming from a lawful activity, from the —illicit— tax quota that should have been paid, a distinction that was not made in this case, and on the other, concerning the way in which the willfulness (dolo) of the active subject is reconstructed, </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">a posteriori</span><span style=\"font-family:Arial; color:#010101\">, given the general lawful activity that originates the capital on which taxes were not paid: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">"The problem </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(…)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> is not so much the criminal origin or provenance of the assets, as it is the difficulty of specifying and individualizing them within the taxpayer's assets (something that will in principle occur in all cases in which what is obtained is money, the quintessential fungible good). The taxpayer answers for the tax debt with all the assets in their possession (the same as in punishable insolvencies), but it is practically impossible to determine which assets are those that become tainted. What is not admissible is the theory of total contagion, according to which the taxpayer's entire assets become tainted. That would be excessive and disproportionate. Anyone doing business with him would be committing a money laundering crime, if all its elements were present, especially the subjective ones (knowledge of the origin, or recklessness at the time of receipt). In every causal relationship, it is necessary that the cause precedes the result; in this case it is required that the tax crime precedes in time the tax quota that constitutes the material object of the crime of money laundering.

There is no problem when the moment of commission of the offense that generates the laundered assets can be safely determined; for example, if it involves drug trafficking in which the moment of the sale and the amount obtained can be determined. However, tax offenses present peculiarities that can generate practical difficulties that are difficult to resolve. The moment of contamination of the assets comprising the defrauded tax quota occurs <span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">when the administrative deadlines established for declaring them to the Tax Administration expire</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. Until these deadlines conclude, there is a period of time during which it is not possible to determine whether or not it exists. This is indicated by Nombre22, “Lavado de dinero y delito fiscal. Posibilidad de que delito fiscal sea el delito precedente al de blanqueo”, La Ley: Revista jurídica española de doctrina, jurisprudencia y bibliografía, No. 5, 2005, pp. 1402-1410. In the same sense, Nombre23, Blanqueo de capitales, cit., pg. 163 (…) Nombre24,“Geldwäsche”, cit., nm. 28. Thus Nombre25, “Delito fiscal y blanqueo: dos sanciones para una actuación”, cit., pg. 5.</span><span style="line-height:150%; font-family:Arial; font-size:11pt">” </span><span style="font-family:Arial">(Cfr. Nombre15. </span><span style="font-family:Arial; font-style:italic">El delito fiscal como actividad delictiva previa del blanqueo de capitales</span><span style="font-family:Arial">. In: Revista Electrónica de Ciencia Penal y Criminológica. 13-01 , 2011. Also see Nombre09 at the following website: http://criminet.ugr.es/recpc/13/recpc13-01.pdf).</span><span style="font-family:Arial; color:#010101"> In this matter, it has already been stated that there was no evidence establishing the specific years in which each sum of money was produced and in which payment of the tax was omitted, which was necessary because our criminal statute refers to base salaries (salarios base), which change annually, and therefore, it was necessary to determine the year of each monetary flow and what portion of it was exclusively from the evasion (that is, excluding the licit earnings), in order to make the parallel classification (adecuación típica), without that having been done in the trial court judgment, nor, worse yet, having been proven. Furthermore, the Trial Court took all the money entering the country, without making any division by period, which caused it to account for amounts entered when that conduct was not a crime, that is, before 2002, given that it stated: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">"...</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">the money sent by Nombre07 </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">from the year two thousand </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">to his accounts at the Banco de Costa Rica and in August 2004 to the account in that same bank of the accused Nombre01 was the product of the sale of cigarettes without taxes, which is a federal crime in that country" </span><span style="font-family:Arial">(cfr. folio 936). In another turn, first the money entered before January 10, 2002, should have been separated, since all of that money could not be considered the product of money laundering (legitimación de capitales), even if it originated from a crime, given that, until that date in our country, only assets, in a broad sense, originating from drug trafficking could be classified as that conduct, and it has already been seen that this was not the case. Then, from all the money entered as of the year 2002, it was necessary to establish how much was entered in each annual period, as this was necessary for the purposes of determining the annual changes in amount </span><span style="font-family:Arial; color:#010101">to make the classification (adecuación típica) of that crime, as per Nombre09 case of exceeding the referenced base salaries (salarios base) </span><span style="font-family:Arial">and, finally, to indisputably prove the proportion of that money that was the product of tax evasion, and which, as per Nombre17, was not, in order to see if that amount exceeded the Costa Rican classification requirement (exigencia típica) that it amount to a certain sum given that </span><span style="font-family:Arial; font-weight:bold">it was only that proportion that allowed for the classification (encuadre típico)</span><span style="font-family:Arial">. None of that was elaborated in the judgment and, much less, is there evidence </span><span style="font-family:Arial; color:#010101">of the amount left unpaid for taxes: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">“…the tax offense differs considerably from other predicate offenses of money laundering (for example, drug trafficking). Its peculiarities will demand a very intense evidentiary activity, so that the existence of an unpaid tax quota that exceeds the amount set in the Penal Code can be affirmed. Unlike what case law considers regarding drug trafficking offenses, in the tax offense it will be necessary to prove the specific criminal act that generates the laundered assets. And it is that the commission of a tax offense requires specifically proving several classification elements (elementos típicos) of a temporal and personal nature. Let us remember that the existence of the defrauded tax quota must be verified within strictly established temporal deadlines </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> Crediting these temporal periods is essential for the existence of the tax offense. And doing so clearly because, as we know, the amount must be determined in consideration of each tax and tax period, without being able to add up different amounts, below the minimum </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> to turn what are merely administrative infractions into a crime…”</span><span style="font-family:Arial; color:#010101"> (Cfr. Nombre15, Isidoro. </span><span style="font-family:Arial; font-style:italic; color:#010101">El delito de blanqueo de capitales. </span><span style="font-family:Arial; color:#010101">Aranzadi, Spain, 2012, pp. 426-427). But, as if the foregoing were not enough, it turns out that, as the appellants rightly point out, it was not contemplated that it was not that law that allowed for dual criminality (doble incriminación). The </span><span style="font-family:Arial">Código de Normas y Procedimientos Tributarios, in its Article 1, states: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">"Scope of application. The provisions of this Code are applicable </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">to all taxes (tributos)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> and the legal relationships derived from them, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">except as regulated by special legislation</span><span style="font-family:Arial">" (bold added). The prior acts attributed to Nombre01, in the United States, allude to smuggling (contrabando), that is, having entered into illicit possession of cigarettes, without paying the prior taxes (tributos). The trial court judgment states in this regard: " </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">In the year 2000, the Eastern District of New York Prosecutor's Office initiated a formal investigation against Nombre07, for violations of the Racketeer Influenced and Corrupt Organizations Act (Ley RICO), based on an illegal sale of cigarettes, which were sold </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">without the prior payment</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> of taxes</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> Nombre01 is being prosecuted for violations of the Racketeer Influenced and Corrupt Organizations Act (Ley RICO), arising from her control of a tax-free cigarette distribution business, operating on an indigenous reservation located</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">at</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">the Poospatuck Reservation, in the City of Mastic, State of New York. In that place, the company P is located, which sells large volumes of tax-free cigarettes, nationally and through the website </span><a href="http://www.smokersden.com" style="text-decoration:none"><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#0000ff">www.smokersden.com</span></a><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. It is also indicated how the indigenous reservation is the home of the Unkechaug Tribe, recognized by the State of New York, although not by the Federal Government, since Nombre01, the wife of Nombre07, a United States indigenous member of the Unkechaug Tribe, and living on the Reservation […], has the right to operate the cigarette store within the Reservation, but not Nombre01</span><span style="line-height:150%; font-family:Arial; font-size:11pt"> (...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> This information, moreover, cross-references and coincides with the document identified as “Introduction of All Charges” </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">In said document, the Federal Government establishes how Nombre08 was a company formed under the laws of the State of New York, with its principal place of business located at 9 Squaw Lane, Mastic, New York, and was a company that sold cartons and packs of cigarettes that did not show evidence of paying taxes and tributes applied by the State of New York; it also operated through the website smokersden.com, the foregoing coinciding with the information provided by the United States Department of Justice to the Government of Costa Rica</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> the importance of Nombre08 in relation to the criminal activity of Nombre01. Thus, as witness Nombre17 indicated, Nombre08 was a company dedicated to the sale of cigarettes without taxes, an exemption in the payment of taxes that supposed as a limitation that the cigarettes could only be sold within the reservation, to indigenous subjects, for their personal consumption, and not for resale. Furthermore, the company could only be operated by an indigenous person, and Nombre01, wife of Nombre07, a member of that indigenous community, was therefore the person authorized for the sale of cigarettes. For his part, witness Nombre20 declared how </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> on behalf of the City he filed a civil claim against Nombre07 and Nombre01, because the store Nombre08, sold cigarettes that </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">had not paid state taxes</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, therefore they were very cheap cigarettes, to the point that people came from New York City (</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">125 miles from the reservation</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">)</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, bought the tax-free cigarettes, loaded them into their vehicles and took them back to New York, to later resell them in grocery stores, which generated significant losses for the City due to the uncollected taxes. He also explained, how </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> Nombre01’s business was advertised on the internet, through newspapers, and cigarette shipments were made by mail, where even from the monitoring carried out on the company, it was determined how Nombre08, bought millions of cartons of cigarettes a year, which </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">had </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">not</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> paid</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> the taxes, and were resold under identical conditions, that is, without the payment of taxes required by the State</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> Nombre08 was a company that sold that product without taxes, according to Nombre20 </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">under a law that the Government issued – a non-existent law – and where </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">the cartons of cigarettes were bought directly from the distributor without the tax stamp</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, then taken to the reservation, and were sold through Nombre08 without the payment of taxes, an absolutely illegal sales activity under federal and state </span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">law, since the commercialization of that product, in any case, was not only within the reservation, or well, to members of the indigenous community, but rather, and this is understood from Nombre20's testimony, it was a national sale</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">What was explained</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">by Nombre20, will be seen as endorsed in the ruling of the Court of Appeal</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, thus, for the Court of Appeal, the CCTA defines that any person who intentionally ships, transports, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">receives, possesses</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, sells, distributes, or purchases contraband cigarettes violates the law. Contraband cigarettes are defined as a quantity exceeding sixty thousand cigarettes that </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">do not show evidence of the payment of taxes</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. For its part, New York Tax Law 471 is analyzed by this Court, indicating that a tax must be paid on all cigarettes possessed for sale, with the assumption that all cigarettes within the State are subject to taxes. Also, the Court analyzes how over the years the State of New York has been involved in a dialogue with Native American retailers, and with the Federal Courts, regarding the State of New York's possibilities of imposing taxes on cigarette sales on reservations, which has generated significant conflicts; notwithstanding, the tribe's immunity prevented the State from suing the Native Americans who refused to pay the tax, even when the State sought to adopt drastic measures to achieve tax payment, such as </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">intercepting and seizing cigarette shipments destined for indigenous reservations</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, the Native Americans resisted, incurring acts of violence and civil disturbances on the highways of New York, which, and this is inferred from the entirety of this resolution, fostered a policy of tolerance regarding the payment of taxes on cigarettes sold on reservations, not however, the Court of Appeal is clear and categorical, in establishing that the regulation contained in New York Tax Law 471, always remained in force. For the Court, the tolerance policy in no way signaled </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> the State of New York's choice not to apply its tax laws, but rather presented a concession by the State, besieged by the difficult and dangerous application of state law, given the complex jurisdictional and political problems surrounding cigarette sales on reservations, and how volatile prosecutions for smuggling would be</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">" </span><span style="font-family:Arial">(cfr. folios 888 et seq.). That is, he is not accused (only) of having sold cigarettes and not paying taxes on the sales, but of having obtained shipments of cigarettes without having the stamp (prior to those sales) showing that, in turn, the distributors had paid the prior taxes. This means that, for dual criminality (doble incriminación), we are not talking about what in our system would be an evasion of the sales tax, but rather about coming into possession of the object, without the payment, prior to the subsequent sale, of taxes (tributos). It is the equivalent, in our context, of </span><span style="font-family:Arial; font-weight:bold; color:#010101">import or custom taxes (impuestos de importación o aduanales)</span><span style="font-family:Arial; color:#010101">.</span><span style="font-family:Arial"> That conduct is provided for, in Costa Rica, in a special law that, therefore, prevails over that general regulation, even if it concurs with other tax transgressions concerning the sales tax. This is the Ley General de Aduanas </span><span style="font-family:Arial; color:#010101">No. 7557 of October 20, 1995 (published in La Gaceta 212 of November 8, 1995, and in force at the date of the accused acts) which establishes: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">"</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">ARTICLE 1.- Scope of application. This law </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">regulates the entry and exit</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, from the national territory, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">of merchandise</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, vehicles, and transport units; also the customs dispatch and the facts and acts that derive from it or from the entries and exits, in accordance with community and international norms, whose application is the responsibility of the Servicio Nacional de Aduanas" </span><span style="font-family:Arial">(bold added) with numeral 223 adding: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">"Relationship with crimes classified in other tax regulations. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">If the conducts classified in this law also constitute a crime or a contravention established in tax legislation, the special provisions of this law shall apply</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> provided that those conducts are related to the non-fulfillment of customs tax obligations or duties before the customs authority" </span><span style="font-family:Arial">(the highlighting is external). This regulation established customs offenses: in a first moment, from its entry into force in 1995 until the year 2003, and then from that date, when a reform occurred and until today. Since the defendant herein was unduly attributed with having received money from his brother, as of the year 2002, which has already been stated is an atypical (atípica) conduct since the capital arose from alleged crimes unrelated to drug trafficking, one must take into account, once again, the legislative changes operated in customs legislation. Thus, in 2002 until 2003, the original Ley General de Aduanas was applicable, and as of this date and until 2007 (when the cycle of the accused acts closes), the regulatory framework currently in force would govern. The first regulatory version (applicable for the period January 2002- August 2003) stated: "</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">ARTICLE 214.- Basic offense. Whoever, through simulation, maneuver, or any other form of deception, avoids or evades in whole or in part the payment of the customs tax obligation, shall be punished with imprisonment of </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">one to three years and a fine</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> equivalent to twice the amount of the uncollected taxes, with their interest and surcharges, provided that the customs value of the merchandise exceeds five thousand Central American pesos. ARTICLE 215.- Specific cases of customs tax fraud. The following shall incur </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">the penalties set forth in the previous article</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, provided that the customs value of the merchandise exceeds five thousand Central American pesos: a) Whoever, without authorization from the competent body, gives a purpose different from that provided in the authorizing norm, to merchandise benefiting from an exemption or franchise or that has entered free of taxes (tributos). b) Whoever, using or declaring false information, solicits or obtains preferential customs treatment. c) Whoever, using or declaring false information, justifies the fulfillment of their duties, obligations, or requirements in their capacity as a beneficiary or user of a customs regime or modality, in order to solicit or obtain preferential customs treatment. d) Whoever, simulates, in whole or in part, an export or import operation of merchandise or alters the description of some, in order to illicitly obtain a customs incentive or an economic benefit. e) The public official, public employee, or official authorized to attest to public faith, who falsely certifies or attests that a tax (tributo) was satisfied in whole or in part. ARTICLE 216.- Aggravating circumstances. The penalty shall be </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">three to five years and the fine</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> equivalent to three times the amount of the uncollected taxes, with their interest and surcharges, when, in any of the two previous articles, any of the following circumstances occurs: a) Three or more persons intervene in the act, as perpetrators (autoras). b) A public official, in the exercise of their functions, on the occasion thereof, or through abuse of their office, intervenes as a perpetrator, instigator, or accomplice" </span><span style="font-family:Arial">(bold not in original text).</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial">But the</span><span style="line-height:150%; font-family:Arial; font-size:11pt"> </span><span style="font-family:Arial">Article 1 of Law No. 8373 of August 18, 2003, modified that regulation, so the law in force in the other period of accused acts (August 2003 to 2007) pronounced itself in these terms: "</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">Article 214.— Customs tax fraud. Whoever, using cunning, deception, or trickery, simulation of false facts, or distortion or concealment of true facts, used to obtain a pecuniary benefit for themselves or for a third party, avoids or evades in whole or in part the payment of taxes (tributos), shall be sanctioned with </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">a fine of twice the amount of the uncollected taxes plus their interest and a prison sentence</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, in accordance with the following: a) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">From six months to three years</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, when the amount of the uncollected taxes exceeds five thousand Central American pesos and does not exceed fifteen thousand Central American pesos. b) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">From one to five years</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, when the amount of the uncollected taxes exceeds fifteen thousand Central American pesos. The amount of the uncollected taxes shall be determined in court through expert assistance, in accordance with the applicable regulations. Article 216. —Aggravating circumstances. The penalty shall be </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">five to nine years of imprisonment</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> and the fine equivalent to two times the amount of the uncollected taxes plus their interest, when in any of the circumstances set out in Article 214 of this Law, at least one of the following conducts or situations occurs: a) Two or more persons intervene in the criminal act as perpetrators (autoras). b) A public official or an auxiliary of the public customs function, in the exercise of their functions, on the occasion thereof, or through abuse of their office, intervenes as a perpetrator, accomplice, or instigator" </span><span style="font-family:Arial">(the bold does not belong to the original text).</span> c) The documents relating to the dispatch of the goods list non-existent natural or legal persons as recipients. d) The crime is perpetrated, facilitated, or its discovery is avoided, through the use of violence or intimidation. Article 220 bis. —Falsehood in the customs declaration and other customs-related offenses. Shall be punished with imprisonment of <span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">two months to three years</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">: a) Whoever introduces goods into the national customs territory through a false declaration related to the regime, classification, quality, value, weight, quantity, and/or measure of such goods or through an underpayment of taxes to which they were legally obliged, or both. b) Whoever clandestinely brings in goods in transit, without paying the corresponding taxes. c) Whoever transports, stores, acquires, sells, donates, conceals, uses, gives or receives in deposit, destroys, or transforms, goods introduced into the country evading customs control. d) Whoever substitutes goods from the customs warehouse, from transport units, from transient parking lots, or from port zones." </span><span style="font-family:Arial">Note that under none of those laws, the former or the latter, and under none of the simple criminal modalities, would the requirement of the prior serious crime be met because, in our law, none of those conducts had, at the date of the charged acts, a minimum abstract penalty of Nombre01 four years. The only exception is the aggravated conduct contemplated in numeral 216 of the last cited customs legislation, but the double criminality fit could not be made under that criminal type because Nombre01 was accused and sentenced for an individual activity, without it being </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">accredited</span><span style="font-family:Arial"> that he acted jointly, with violence, or using non-existent legal persons. Rather, when he was accused of this, he was definitively acquitted, a judgment that is the only one that has value, and in our legal system, dismissed conducts cannot be contemplated for punitive purposes of other crimes. To continue with the chain of omissions, both evidentiary and analytical, the Trial Court also failed to consider, when analyzing the issue of double criminality (even under the regulations it used), regarding the </span><span style="font-family:Arial; text-decoration:underline">statute of limitations for criminal prosecution in these crimes</span><span style="font-family:Arial">, which was necessary because, as already stated, the enforceability of the criminal action is inherent to double criminality:</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> "In the opinion of one sector of the doctrine, the statute of limitations on the prior act from which the assets originate produces the break of the connection between the asset and the act that originates it. From the moment a crime can no longer be persecuted due to its statute of limitations, all assets originating from it will be decontaminated. It is not reasonable, it is argued, to prolong the criminal origin beyond the period in which the crime is prosecutable. It is not correct to sanction a person for the laundering of assets proceeding from an already time-barred crime, whose perpetrators will not be able to be criminally sanctioned. Otherwise, there would be a disproportionate extension of the time during which the assets have a tainted nature, so that if a limit is not set, such as the statute of limitations of the prior crime, they would continue to maintain that nature indefinitely" </span><span style="font-family:Arial; color:#010101">(Cfr. Nombre15. </span><span style="font-family:Arial; font-style:italic; color:#010101">The crime of money laundering. </span><span style="font-family:Arial; color:#010101">Aranzadi, Spain, 2012, pp. 428-429).</span><span style="font-family:Arial"> And, regarding that issue, tax legislation has special rules, different from the rest of ordinary procedural legislation. Thus, in the Code of Tax Standards and Procedures (Código de Normas y Procedimientos Tributarios) (legislation under which the Trial Court made the double criminality fit), the statute of limitations period for criminal prosecution is set at three years in most cases and five years if the cause is based on false data in tax returns, adding: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">Article 52.- Computation of terms. The statute of limitations term shall be counted </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">from the first of January of the calendar year following that in which the tax must be paid</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">.</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">Article 91.— Statute of limitations rules. The statute of limitations for tax crimes shall be governed by the general provisions of the Penal Code and those of the Code of Criminal Procedure. (Ref. by Law 7900 of August 3, 1999)” </span><span style="font-family:Arial">(the highlighting does not belong to the original text). Furthermore, in the General Customs Law (Ley General de Aduanas), the statute of limitations period for criminal prosecution is four years, according to numeral 62. From this perspective, if Nombre26 was detained on August 2, 2004, and the sending of money to Nombre01 has been attributed to him since long before (even though the latter used it later), it was essential to analyze each monetary flow and the evaded annual quota, for the purposes of both objective criminality and the enforceability of the criminal action according to the computation of prescriptive periods, none of which was done in the lower court's resolution, nor can it be done now given the lack of annual accounting data. It has also been said that no evidence was provided on the legal rules of punishment, and much less on the statute of limitations, for that event in North America. That would be enough to, even under the first typical fit made by the Trial Court, which was said not to be correct, resolve the merits of the question, which, with greater reason, can be done with the other fit referred to. Ultimately, without making further analyses and even accepting the proven facts and the evidentiary and legal analysis carried out in the lower court's sentence (which, it is insisted, is not entirely correct and, much less, complete), there would be no objective criminality, and this implies that the appeals must be granted and the accused must be acquitted from this instance, since a remand would lead nowhere, as the foregoing arises from a legal analysis and an absence of evidence that cannot be provided at this procedural stage.

<span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; color:#010101">§3. </span><span style="font-family:Arial; font-weight:bold; color:#010101">Subjective elements of the criminal type:</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; color:#010101"> </span><span style="font-family:Arial; color:#010101">On the other hand, when numeral 69 of the Ley de Psicotrópicos, applicable to the acts, provided: "</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">Shall be punished with a prison sentence of eight to twenty years: a) Whoever acquires, converts, or transfers assets of economic interest, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">knowing</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> that these originate from a serious </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">crime</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">, or performs any other act to conceal or cover up the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts. b) Whoever conceals or covers up the true nature, origin, location, destination, movement, or rights over the assets or their ownership, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; text-decoration:underline; color:#010101">knowingly</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> that they proceed, directly or indirectly, from a serious </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">crime</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">. The penalty shall be ten to twenty years imprisonment when the assets of economic interest originate from any of the crimes related to the illicit trafficking of narcotics, psychotropic substances, money laundering, diversion of precursors or essential chemical substances, and related crimes" </span><span style="font-family:Arial; color:#010101">(the highlighting is supplied), it was demanding direct intent (dolo directo) of the first degree. It is known that there are three types of intent: </span><span style="font-family:Arial; font-weight:bold; color:#010101">direct intent of the first degree</span><span style="font-family:Arial; color:#010101">; indirect or direct of the second degree, also known as necessary consequences intent, and eventual intent. In principle, any intentional act can be committed through any of these forms of intent, unless the legislation expressly establishes otherwise. Thus, the legislative use of the forms 'knowingly' or 'knowing' implies that direct intent is required: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">"When the legislator uses expressions such as 'knowingly,' it accentuates the cognitive side of intent and implies, regarding the specific element for which it requires direct intent of the second degree (sic), a renunciation of punishment for eventual intent. Articles 69 of the Ley de Psicotrópicos </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> require 'the knowledge' that the object of economic interest comes from a specific crime </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> It is enough that the agent knows the factual circumstances that characterize the prior act. It is not necessary that they know the particularities of the prior act…" </span><span style="font-family:Arial; color:#010101">(Nombre14. </span><span style="font-family:Arial; font-style:italic; color:#010101">The crime of money laundering</span><span style="font-family:Arial; color:#010101">. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 125-126, bold text supplied). In the opinion of the Court, there may be, in the text transcribed above, some confusion in the denomination of this emphasis on the 'knowledge' element (since it is pointed out that it is a direct intent of the second degree, when it is of the first, as the second degree is the so-called 'intent of necessary consequences' where knowledge is not as important, but rather will predominates, cfr. Nombre14. </span><span style="font-family:Arial; font-style:italic; color:#010101">Intent</span><span style="font-family:Arial; color:#010101">. Editorial Juritexto. San José, 1999, pp. 268-270). Despite this terminological difference, it is agreed with said author, and with an important doctrinal sector cited in previous references, that the expression excludes other forms of intent (e.g., eventual intent) and admits only direct intent, which, definitively, is not a mere suspicion:</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> “…the cognitive element of intent is not a mere suspicion about the concurrence of the objective elements of the criminal type, nor does it, at the opposite pole, demand certainty in that regard </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">It is not, therefore, necessary to describe intent </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">to resort to affirmations incompatible with legal certainty and with the criminal concept of intent, such as the one very frequent in doctrine and jurisprudence that it is sufficient to know that the assets 'proceed from a criminal activity in a generic way,' as if our criminal law were based on the author and not the act </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> intent in the crime of money laundering always has crimes as its object, and not generic criminal activities"</span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101"> </span><span style="font-family:Arial; color:#010101">(Cfr. Nombre11. </span><span style="font-family:Arial; font-style:italic; color:#010101">Technical and criminal policy reflections on the crime of money laundering</span><span style="font-family:Arial; color:#010101">. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the following webpage: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pp. 76-77). With this caveat, the doctrine indicates that, since it is a normative element, this intent has two substrates, one factual and one evaluative: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">“The factual substrate is composed of the facts constituting a criminal activity. The author must know those factual circumstances perceptible by the senses, which must serve as a basis for assessing their criminal nature. It is, as with the descriptive elements of the criminal type, a matter of knowledge of the circumstances of fact</span><span style="font-family:Arial; color:#010101"> (…) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">The author of the money laundering crime must carry out an assessment of the facts they have perceived. From such an assessment, it must be derived that such acts constitute criminal conduct” </span><span style="font-family:Arial; color:#010101">(Cfr. Nombre15. </span><span style="font-family:Arial; font-style:italic; color:#010101">The crime of money laundering. </span><span style="font-family:Arial; color:#010101">Aranzadi, Spain, 2012, pp. 660-661). This is important because, from the </span><span style="font-family:Arial; font-weight:bold; color:#010101">factual substrate</span><span style="font-family:Arial; color:#010101">, the activity carried out by Nombre01 in the United States, of selling tobacco without taxes to non-indigenous people, was done publicly, advertising through an internet page, with deliveries to various parts of the Union through that country's mail service, there were multiple businesses of the same type on the same indigenous reservation, and no person had even been prosecuted for such activity, as is unanimously drawn from the oral evidence received at trial. Ergo, from the factual substrate, Nombre01, who had gone to work with Nombre01 in that business, had no element even to doubt that a criminal activity was being carried out, especially since the remittance shipments were made through banks, both in the United States and at a state bank in Costa Rica, which assume significant controls to avoid the movement of illicit money. From the </span><span style="font-family:Arial; font-weight:bold; color:#010101">evaluative substrate</span><span style="font-family:Arial; color:#010101">, no additional data arise either, because if the original activity was apparently licit, there was no reason to question its illicitness. Furthermore, the doctrine insists that this intent must be present at the time of the acquisition of the asset, that is, it must be </span><span style="font-family:Arial; font-weight:bold; color:#010101">current</span><span style="font-family:Arial; color:#010101">, without it being sufficient that it exists at other times: </span><span style="font-family:Arial">“</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">The author must know the origin of the object </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">at the moment of its obtention. Subsequent knowledge ('dolus subsequens') is not criminally relevant ('dolus subsequens non nocet') nor does it generate a guarantor position, pursuant to article 18 of the penal code. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">The acquisition of the object without knowing its illicit origin implies an acquisition of possession in good faith, which excludes the crime of money laundering </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> they are not permanent crimes"</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> </span><span style="font-family:Arial; color:#010101">(Nombre14. </span><span style="font-family:Arial; font-style:italic; color:#010101">The crime of money laundering</span><span style="font-family:Arial; color:#010101">. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 125-126, bold text supplied). “</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">Intent must be antecedent or concurrent with the action. Subsequent intent is irrelevant</span><span style="font-family:Arial; color:#010101">…” (Nombre27. </span><span style="font-family:Arial; font-style:italic; color:#010101">The legal framework of money laundering: criminal and administrative aspects</span><span style="font-family:Arial; color:#010101">. At the following electronic address: http://www.datadiar.com/actual/novedades_05/penal/blanqueo/d_may_02c.htm). </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">“Intent must exist during the performance of the behavior, that is, during its execution. Therefore, dolus antecedens, that is, an intent prior to the commission, is not sufficient </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> as with dolus antecedens, it is admitted that dolus subsequens or subsequent intent, is not intent in the sense of Criminal Law. From the requirement that the knowledge corresponding to intent be current, it follows that subsequent knowledge, after the performance of the conduct, has no criminal-legal consequences </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> This is an express mention included in the Vienna Convention of 1988 which, in its article 3.c).i), refers to 'the acquisition, possession or use of property, knowing, at the time of receipt, that such property proceeds from one or some of the typified crimes…' The same reference is contained in the Palermo Conventions (art. 6.1.b.i) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> It is irrelevant from a criminal point of view if the knowledge of the criminal origin of the assets is obtained after the performance of the money laundering actions. The principle dolus superveniens non nocet is fully in force" </span><span style="font-family:Arial; color:#010101">(Cfr. Nombre15. </span><span style="font-family:Arial; font-style:italic; color:#010101">The crime of money laundering. </span><span style="font-family:Arial; color:#010101">Aranzadi, Spain, 2012, pp. 662-663). Therefore, it is unacceptable that the Trial Court stated: "</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">Although in the fifth fact of the accusation, the Public Ministry includes the remittance from Nombre08's account from the United States of the sum of Sixteen million seven hundred ninety-three thousand, nine hundred eighty dollars, to Nombre01's dollar savings account in the Banco de Costa Rica. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">These remittances</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> as can be seen in Appendix No. 4 of Report No. 212-DEF-R-140-11 of the O.I.J. Economic and Financial Crimes Section, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">began in October of the year two thousand and extended without any interruption during the years two thousand one, two thousand two, two thousand three, up to March 19, 2004</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. It must be considered that, at that date, Nombre07 had not been detained in the United States, on the charge of cigarette smuggling, and therefore </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">it could not be affirmed with certainty that his brother Nombre01 knew of the illicitness of that business that generated -in its entirety- the funds remitted to the Banco de Costa Rica</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. Because knowledge about the illicit origin of the laundered funds is necessary, for the purposes of the criminality of the crime, the Court must have considered that </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">the knowledge regarding those money transfers arises from the detention of Nombre07 in New York, on August 2, 2004, for which reason</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> only one deposit, the one made on the sixth of August of that same year and received in Nombre01's account, can be considered </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">tainted</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> by the knowledge of the illicitness of its origin</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. It should be noted, as it is of interest at this point, that this last deposit has different conditions compared to all the previous deposits that can be seen in Appendix 3 cited, namely: the amount of four million four hundred thousand dollars far exceeds the previous ones, whose figures usually oscillate between two hundred and three hundred thousand dollars </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline">-with the exception of one deposit made by the funds operator Lloyd for two million five hundred thousand dollars in November of two thousand two-</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> and represents a quarter of all the deposits made over three years and ten months into that savings account. It differs from the preceding deposits in that the money is not remitted by Nombre08, but rather by TMG Nombre16 Partners. The explanation for this change in the remitter arises from the temporality of the deposit, four days after the illicit nature of his commercial activity carried out through Nombre08 becomes "official" with the detention of Nombre01. However, Nombre01's identity is also present in this deposit, since his initials Nombre16., which according to witness Nombre20, Nombre01 imposed on all his belongings and businesses so that they would be identified with him, are in the name of the depositor, so it cannot be denied that its origin is related to Nombre01 and his illicit activity, known at that time by the accused Nombre01. The Court also considers that </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">at the time of carrying out the redemption of the funds deposited by Nombre01 in the Banco de Costa Rica, ten days after the detention of Nombre01, the accused Nombre01 knows the origin of the funds</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> and under that knowledge agrees to erase all traces of his brother's investments and banking activity in the Banco de Costa Rica, since, as indicated in Report No. 212-DEF-R-140-11 of the O.I.J. Economic and Financial Crimes Section, and can be seen on</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> folio 356 verso of the main file, up to the sum of five thousand eight hundred dollars deposited in an account of Nombre01 were deposited, along with the fund for ten million three hundred fifty thousand, two hundred forty-eight dollars in Nombre01's savings account to later constitute a new Growth Fund in dollars in the name of Nombre01 at the Banco de Costa Rica.</span> It should therefore be concluded that all the funds remitted by Nombre01 to his account and which constituted the monies of the Fund in whose redemption both Nombre26 and Nombre01 participated, and the four million four hundred thousand dollars that were remitted after Nombre01's arrest, came from Nombre01's illicit activity of cigarette smuggling, a situation that Nombre01 was aware of at the time of receiving and maintaining those funds in his account and when participating in the redemption of the Growth Fund in dollars at the Bank of Costa Rica (cfr. folios 938-939, emphasis supplied). Note that although the trial judges initially stated that it could not be considered that the accused knew that all the money he received from his brother, before his arrest in the United States, came from a crime, immediately afterwards they make the knowledge of intent (dolo) arise, no longer in the acquisition but in the maintenance, in his account, of those remittances, through the redemption of the Fund and in the subsequent investments, meaning that although the accused, upon receiving the money, did not have intent (dolo) (knowledge of the originating crime), he subsequently acquired such knowledge and it is for that supervening circumstance that they make the reproach, put thus, retroactively, which is nothing more than applying the concept of subsequent intent (dolo subsecuente) which, as stated above, is not acceptable. It is true that the article under discussion establishes: "a) Whoever acquires, converts or transfers economically valuable assets, knowing that they originate from a serious crime, or performs any other act to conceal or disguise the illicit origin or to help the person who participated in the offenses to evade the legal consequences of their acts. b) Whoever conceals or disguises the true nature, origin, location, destination, movement or rights over the assets or their ownership, knowing that they proceed, directly or indirectly, from a serious crime..." so it could be said that intent (dolo) can be present at three moments: acquisition, conversion, and transmission, and that, in this matter, the trial judges considered that, for one sum, it existed from the acquisition (since it was transferred after Nombre01's arrest) and, for the remaining sums, from the conversion and transmission. However, the actions cannot be artificially split since, as has been made clear with the cited doctrine, the international instruments from which those three moments arise are emphatic in requiring that the knowledge of the active subject be at the moment of receiving the assets, not at the remaining moments. Thus, in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (approved by the UN at the session held on December 19, 1988, in Vienna, Austria, and ratified by Costa Rica in 1990), Article 3.1.c.i provides: "Article 3 OFFENCES AND SANCTIONS. 1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: c) Subject to its constitutional principles and the basic concepts of its legal system: i) the acquisition, possession or use of property, knowing, at the time of its receipt, that such property was derived from an offence or offences established in accordance with subparagraph a) of this paragraph or from an act of participation in such offence or offences" (emphasis supplied). The Palermo Convention states similarly: "Article 6. Criminalization of the laundering of proceeds of crime 1. Each State Party shall adopt, in accordance with fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: b) Subject to the basic concepts of its legal system: i) The acquisition, possession or use of property, knowing, at the time of its receipt, that such property is the proceeds of crime" (bold emphasis supplied). It has already been said that this instrument is not applicable here, as it is a later law, but it is mentioned for the purpose of demonstrating how, despite being extremely broad in its regulations, it limits the intent (dolo), regarding subsequent possession, to that which was present at the time of receiving the asset or object, so both regulations become interpretative limits of the law enacted as a result of the subscription to that international obligation. Ergo, the three verbs allude to acts where there was initial intent (dolo) at the time of receipt, without it being possible that an act carried out without intent (dolo), without knowledge or will to commit the objective elements of the offence, that is, in good faith, becomes later, by the mere passage of time, an illicit act since, in such cases, the conversion and transmission are acts proper to the exercise of ownership and possession rights (originally in good faith). In other words, it would be a legal absurdity to consider that if a person received something in good faith, without intent (dolo), and subsequently becomes aware of the illicit nature of the act from which the money came, they are required either to hand the thing over to the State or to not perform any possessory act with it. Now then, this would lead to making a differentiation (both for the purposes of the objective elements and intent (dolo), and for those of confiscation (comiso)) between the monies received by Nombre01 before his brother's arrest (received without intent (dolo), and therefore, not constituting the criminal offence that concerns us) and those received afterwards. That is, it would be necessary to establish the total amount received by the accused. From this, subtract what was received before January 10, 2002 (in which there was no objective criminality (tipicidad objetiva) for the act). From what remains, subtract what was received before August 2, 2004 (the date of Nombre01's arrest in the United States, which the Court sets as the date from which the intent (dolo) arises), sums that were received without intent (dolo) by the accused and, therefore, not susceptible, from the perspective of subjective criminality (tipicidad subjetiva), to be criminal. From what remains, that is, approximately four million dollars, it would be necessary to extract, for each annual period (for the purposes of dual tax criminality), the taxes not paid, since only this (and not the rest of the profit) is what would constitute the crime. For that resulting sum, it would have to be demonstrated in which periods it was obtained, to see if it is possible to fit it into the objective elements of the offence (tipo objetivo) in Costa Rica, obviously without taking into account interest or other profits generated in the country, but only the resulting original amount. None of that was done, and instead, a blanket reference was made to all the money, its interest, and the rest, both for the purposes of the conviction and, subsequently, for the generalized confiscation (comiso generalizado). To do the latter, the Court (ignoring the anachronism it incurs by pointing out that the paragraph of Law No. 8204 it will apply is inspired by Article 6 of the Palermo Convention, see folio 940, when it has already been seen that the law applicable to this matter is that of 2002 and that this Convention, although adopted at the United Nations in 2000, was not ratified by the country until 2003) chooses to state that it is not those first verbs that apply but rather: "The alleged facts, in the Court's opinion, do not fit into the first part of the cited Article 69 'Whoever acquires, converts or transfers economically valuable assets (...)' but into the part that reads 'or whoever performs any other act to conceal the illicit origin or to help the person who participated in the offenses to evade the legal consequences of their acts (knowing that these originate from a serious crime)' (...) we will proceed to break down the offence (... ) with the intention of relating each part of the offence to the conduct of the accused and the circumstances of the case (... ) Analysis of the Objective Criminality. Article 69 first paragraph: '(...) whoever performs any other act to conceal the illicit origin or to help the person who participated in the offenses to evade the legal consequences of their acts.' A.- Whoever performs any other act.- The verb that defines the criminal action is to perform any other act, alluding to the fact that it is not about the actions 'acquires, converts or transmits' that precede this part of the first paragraph of Article 69. The Court opts for this verb form because the conducts of Mr. Nombre01, which have been held as proven in the corresponding section of this judgment, are not contained in those verb forms, but rather are of a banking nature in some cases and in others are dispositive acts based on that money received through transnational banking operations. The analysis of the acts performed must begin with the first ones that occurred chronologically. i.- Receiving and maintaining in his dollar account No. 230-0042636-9 of the Bank of Costa Rica money coming from the illicit cigarette trade of Nombre07 in the Indigenous Reserve […]. On August 6, 2004, a transfer was sent from the United States by TGM Nombre16 Partners, for the sum of four million four hundred thousand dollars to the aforementioned account, and Mr. Nombre01 received and maintained it deposited in his name, knowing that it came from the criminal activity for which his brother had been arrested four days earlier in New York. ii.- The Redemption of the Dollar Growth Fund and subsequent operations. Five days after the aforementioned deposit was received in Mr. Nombre01's account, that is, on August eleventh, two thousand four, Nombre07 sends to 'Nombre05' his trusted executive at the Bank of Costa Rica, who turns out to be the defense witness Nombre05, the document that can be seen at folio 28 of the Main File, where he authorizes him to transfer all, in uppercase, bold and underlined, the funds from his investment account, and tells him that if he has any doubt to contact Nombre01's mobile phone whose number he includes in the communication. In this minimal expression of Nombre01's will, the urgency and imminent risk in which the permanence of that money in his patrimony and without restrictions finds itself is noticeable, a situation to which his brother Nombre01 responds efficiently, quickly, and faithfully, who one day later, on August twelfth, directs a communication to Licentiate Nombre05, who has managed until that moment Nombre01's investments and his own at the Bank of Costa Rica, the redemption of those funds and their deposit in Mr. Nombre01's dollar savings account, which is scrupulously carried out by the Bank. Once the more than ten million dollars are deposited in his account, Mr. Nombre01 constitutes another growth fund - this time in his own name - for the indicated sum, to which are added five thousand eight hundred dollars that were still deposited in Nombre01's savings account at the Bank of Costa Rica, so that the design of Nombre01 is fulfilled that no money remain in his name at the Bank of Costa Rica and therefore be subject to being immobilized by the federal authorities who had arrested him nine days earlier in New York. iii.- Purchase of properties and movable assets.- In Dossier 1 of the evidence offered by the Public Prosecutor's Office, all the notarial and registry information concerning the transactions by virtue of which, from the year two thousand seven until November of two thousand ten, Mr. Nombre01 in his personal capacity or in the name of the company Nombre01 del Caribe S.A. in which he had a majority participation, acquired movable and immovable assets with the money sent by Nombre07 is included. The Report of the Economic and Financial Crimes Section of the O.I.J. No. 212-DEF-R-140-11, from folio 343 to folio 346 vto. of the Main Dossier of this case, describes all the immovable assets that were acquired by Nombre01, who appears in his personal capacity and acquires ownership of those assets, and in the section of the study dedicated to the company H, constituted by Mr. Nombre01 and his wife Nombre28, it is indicated that this company purchased five estate parcels (fincas) in the Province of Limón. Regarding the value of those acquisitions, the referred Expert Opinion states that the value of the immovable assets amounts to the astronomical sum of one billion nine hundred eighty-two million six hundred fifty-three thousand seven hundred fifty-six colones. In relation to the movable assets, their description and notarial and registry information can be seen in Evidence Dossier One and in the Report of the Economic and Financial Crimes Section, in Annexes No. 1 and No. 2 the description of those assets is recorded and their value is set at the sum of one hundred sixty-five million seven hundred forty thousand colones for those in the first annex, and in the second annex concerning vessels a value of Sixty-four million two hundred eighty thousand two hundred fifty-one colones is recorded, totaling two hundred thirty million twenty thousand two hundred fifty-one colones. It must be mentioned that the time in which the acquisition of immovable assets is made, between 2007 and 2010, is not casual, but must be related to the situation of the judicial process followed by the federal criminal authorities of the United States, because according to what witness Nombre29 said in that case, the Trial against Nombre01 began in the year two thousand seven, in October, and lasted until May 2008, and the properties begin to be bought in July 2007. The Court concludes from this temporal proximity between the trial and the acquisitions of immovable assets that the change in Nombre01's procedural situation, which leads him to face a federal trial, imposes on him the need to not limit the concealment to banking operations but to diversify through real estate investment to distance Nombre01's patrimony even further from its illicit origin, it is a legitimization - to put it somehow - of a second degree, in which the legitimized money is converted into properties, thereby diluting the money trail, which is no longer only in the Bank of Costa Rica but in various real estate investments" (cfr. folios 940 to 942; the bold does not belong to the original text). But, even if what is attributed to him is having maintained those monies in his possession, redeeming the funds, and then making the investments, it turns out that the intent (dolo) had to be present at the moment of receiving the money, since that is what is privileged, as has been indicated, by the different conventional instruments, even those later and of broader scope than the legislation applicable to this matter, even if it is not the acquisition that is penalized, but the subsequent acts. It is also evident that there is no evidence in the case file that allows establishing, neither in this instance nor through a referral, those items nor distinguishing them from the amounts received before the dual criminality occurred (in order to also weigh the issue of the statute of limitations for criminal action) so as to make a differentiation between some and others, but rather that would require a new investigation or the production of new evidence which, as will be said, is not possible. Now then, without dwelling on those evidentiary problems referring to the sum received by the accused after his brother's arrest (regarding which, it is insisted, it is not determined what amount of it, if all or part, comes from tax evasion and what part from the lawful profits of that activity), it turns out that the construction of the knowledge of intent (dolo) based on the fact of that arrest is not something this Chamber endorses either. Note that the prior fact with a causal relationship (the sale of cigarettes; not the possession of a weapon which has no relationship with the capital or the facts for which he was acquitted) was an element that was even widely discussed and controversial in the North American justice system itself, to the point that a judge of that country dismissed the charges, arguing the ambiguity of the laws applied and the possibility that Nombre01 was unaware of the illicit nature of what he was doing. That is, the annulment of charges by a judge was based on the possibility that Nombre01 incurred in what, in our system, would be the equivalent of an invincible error of prohibition (error de prohibición invencible). Although that decision was later reversed by other judges, it is important, for the purposes of the error of type (error de tipo) alleged by the defense, in this specific case because... if in the eyes of a North American jurisdictional authority, with extensive knowledge of that country's laws, it was reasonable for Nombre01 to doubt about the tax issue of the matter in question (sale of cigarettes in the indigenous reserve to which his wife belonged)... is it not more valid for Nombre01 himself, a man not versed in law, who had gone to the United States and worked in the commercial premises, which was open to the public and widely advertised in that country through mass media including the internet and whose tobacco cigarettes were sent by Nombre09 using even that country's postal service, to have doubted about it? Was it not more expected that Nombre01, who had been receiving money from his brother for more than four years (as of August 2, 2004), would doubt whether the provenance of that subsequent sum was lawful or not? It is true that, as the trial judgment rightly says, citing a foreign author: "'In any case, the use of the banking and financial system to recycle the profits obtained from various criminal activities has been a widespread and unpunished practice for many years, in practically the whole world. Based on a certain complicity of the financial system, said system has been used for the transformation of capital of illicit origin, coming from the commission of serious crimes, into money free of suspicion. Without a doubt, all of this would not have been possible if banking entities and financial intermediaries had exercised a little diligence and collaboration, detecting transactions of unclear origin. But some financial entities have decided to ignore the illicit origin of the capital, insofar as they obtained significant economic benefits. The free movement of capital in Europe makes it necessary to improve inspections of said capital at the source, without this intervention policy being able to be interpreted as an obstacle to its free circulation. For this reason, successive directives regulating banking, credit, and professional activities that affect the transformation of capital and assets have been approved.' Ferré Olivé, J, op. cit. p. 168. Contrary to the idea that exists in common knowledge, that the remittance of funds through banking channels inherently excludes the crime of Money Laundering, as has happened in the case under examination, banking and financial entities can be used to legitimize capital, so that they can actively contribute to the production of the harmful results of this criminal activity in the socioeconomic order" (cfr. folios 932-933, emphasis supplied). Nevertheless, although the banking system can and has been used in other cases and in different latitudes for the purposes of legitimization, it is clear that this element must be weighed, together with others, to extract the intent (dolo), since it is not the same for someone who sends a flow of money secretly ("in sacks", the appellant refers to) compared to someone who does so using banking institutions from two countries, both standing out, although one more than the other, for their not insignificant controls over monetary origins. Nor should the treatment given to the evidence be the same if the generating activity is illicit per se (assets obtained from drug trafficking, for example) compared to if it comes from tax evasion where there is a lawful origin of the money, even if the payment of taxes is later omitted.

Therefore, if in the specific case, Nombre01 had been transferring sums of money for years (sometimes in the millions of dollars, as recounted above in a transfer of more than two million, prior to the four million dollar transfer at issue) using North American and national banks, to which he reported the origin of those funds to the point that, in Costa Rica, banking authorities went to visit the referenced business, confirming its existence and the publicity of its actions, is that important to consider for the purposes of the criminal intent (dolo) charged here...could his brother's arrest have changed his conception? In this Chamber's opinion, no, because that arrest occurred attributing a series of charges to him (homicide, arson, extortion, weapons possession) that had no direct relationship with the origin of those funds. This on one hand but, on the other, as the challengers rightly state, for this type of relationship-based crimes, it was necessary that, because a process had begun in that country, said process would have concluded with a final conviction to generate knowledge, which is not potential or probable, but must be certain and current. So, this Court asks...what would have happened if Nombre01's trial had taken place in parallel, or immediately after, the moment when U.S. Judge Hurley excluded the smuggling charges against Nombre01 and before the decision of the Court of Appeals? Had that been done, that element would have generated a reasonable probability of doubt regarding the criminal intent (dolo) of the accused. Moreover...if Nombre01 had been acquitted in the United States of these acts, could the judgment's assertion that his arrest was sufficient for Nombre01 to know the illicit nature of his acts be maintained? It is obvious that it could not. What is meant to be indicated is that, depending on the stages of the U.S. process at which it had been conducted, the answer to the question regarding the criminal intent (dolo) of the accused here would have been different, which is not reasonable or acceptable. It is not legitimate, consequently, to provide a variable solution, depending on the stages of a foreign proceeding, to the same question (whether the accused had criminal intent [dolo]). This invalidates the "inference" of criminal intent (dolo) that the Trial Court makes from a procedural act (Nombre01's arrest) when he was acquitted of the majority of the charges; convicted of one without causal significance to the flow of money, and for another, his case was widely discussed in that country before jurisdictional authorities that, in fact, temporarily exonerated him from responsibility. Therefore, the claim of error made by the defense is valid when considering a joint series of situations: a) the transfer over the years; b) the use of banking institutions in both countries; c) the declaration of the origin of the goods; d) the lack of prior prosecution of any person for such acts in the United States, Nombre01 being the first sentenced for such conduct; e) the public and publicized activity of his company; f) the type of business, the sale of tobacco cigarettes, which is not an activity per se, illicit. For this Court, based on all these elements, the accused Nombre01 had no reason to know that the money came from a serious offense (delito grave) (which, we have already seen, was not such) and, even if his error was avoidable (vencible), there is no parallel regulation for negligent acts (hechos culposos) of that nature in our legal system, so, being, effectively, as the defense counsel points out, an error of fact (error de tipo) and not one of prohibition (error de prohibición), the exclusion of criminal intent (dolo) made his behavior atypical: "The lack of knowledge or defective knowledge of some constitutive fact of the criminal offense excludes criminal intent (dolo), and gives rise to an error of fact (error de tipo). In the crime of money laundering, the exclusion of criminal intent (dolo) can occur as a consequence of a lack of knowledge or defective knowledge of the typical action or the material object (...) The question concerning the lack of knowledge that falls on the material object is more problematic, fundamentally because the criminal regulations relating to money laundering employ normative elements in the definition of the crime (tipo) to describe the suitable objects (...) the doctrine does not consider it sufficient, for the purposes of typical criminal intent (dolo típico), to know the data configuring the factual assumption of the normative element. It is required that the perpetrator carry out a parallel evaluation in the lay sphere that allows him to understand the content of the social meaning of the assumption" (Cfr. Nombre15. El delito de blanqueo de capitales. Aranzadi, Spain, 2012, pp. 763 and 765). It must be clarified, on this issue, that the Trial Court assessed this claim as if it were an error of prohibition (error de prohibición), when stating: "...the technical defense of Mr. Nombre01 argued that he acted under an error of prohibition (error de prohibición) because he had no way of knowing that the money sent was related to an illicit activity. The Court cannot admit this argument from the Defense because, in accordance with the provisions of Article 35 of the Penal Code, the error of law (error de derecho) supposes that the perpetrator of the conduct believes -by virtue of an unavoidable error (error invencible)- that the act he performs is not subject to punishment. In this case, after Nombre01's arrest in the United States on August 2, 2004, his brother Nombre01 does not act -by participating in the redemption of the Crecimiento Fund and the constitution of a new one in his name, and by maintaining sums of money in the millions of dollars in his dollar savings accounts- being the victim of an unavoidable error (error invencible), because he knows that the different conduct that Nombre01 had been carrying out -depositing the illicit money from Nombre08's account and maintaining the Crecimiento Fund in dollars in his name at the Banco de Costa Rica- changes as of August 6, and the sole origin of the change is Nombre01's arrest on various criminal charges, among which is cigarette smuggling, whereby Mr. Nombre01 acquires the certainty -which excludes the unavoidable error (error invencible)- that all the money sent from New York is linked to the illicit activity against U.S. justice and that the acts subsequent to that knowledge have the purpose of removing from possible immobilization and/or seizure by those authorities the money coming from the alluded crime that was not paid to the U.S. Treasury, which stopped receiving millions in taxes that were not collected by Nombre01 in his business, according to what the witnesses Nombre08 and Nombre19 stated in the Debate. As a consequence of the exposed reasoning, it is concluded that Mr. Nombre01 did not act under an unavoidable error (error invencible) in the terms of Article 35 of the Penal Code - because the origin of the money was undoubtedly revealed as illicit, for Mr. Nombre01, as of Nombre01's arrest on August 2, 2004, in the United States" (cfr. folios 939-940, emphasis supplied). Note that, on one hand, reference is made, again, to a subsequent criminal intent (dolo subsecuente): not for the reception but for maintaining the money and making the redemption of the Fund, which, additionally, had been nourished with monies that, we already stated, did not arise from an activity generating dual criminality until a date (2002), or the same trial court (a quo) affirmed were received without criminal intent (dolo) until another date (August 2, 2004) and that, definitively, the tax quota left unpaid is not recorded. But, most relevantly, the Trial Court assumed the claim concerned an error of prohibition (error de prohibición), which is incorrect reasoning because what was claimed was that Nombre01 did not know that the money came from a 'serious offense (delito grave)' and, this being a normative concept of the crime's definition (tipo), lack of knowledge of an objective element of the crime's definition (tipo) was being alleged and, therefore, the claim effectively corresponded to an error of fact (error de tipo), where the consequences regarding the avoidability, or not, of the error, as we well know, are different. In any case, it is appropriate to reiterate the position that this Chamber, with a partially similar composition to the current one (Nombre30 and Nombre31), has outlined in similar cases, where the crime's definition (tipo penal) is constructed by the legislator with legal normative elements, cases in which it has been indicated: "(1) On the nature of the invoked error. In principle, there is no great confusion when defining the error of fact (error de tipo) as that which falls on the objective elements of the crime's definition (tipo penal) nor when referring to the error of prohibition (error de prohibición) as that which occurs both when the agent is unaware of the rule, considers it not in force, or interprets it mistakenly (direct) and when he is mistaken about the existence or limits of justifications (error of permission or indirect prohibition) (...) What is indeed necessary is to determine the nature of the error involved when the crime's definition (tipo penal) is constructed in such a way that, in its objective elements, it introduces terms such as "illicitly," "illegitimately," "illegally," "unlawfully," etc., as these terms then become normative elements of a legal nature that, by integrating the crime's definition (tipo penal), would eventually make the error alleged about them one of fact (de tipo) rather than of prohibition (de prohibición). On this matter, the doctrine states: ¬"...it was Nombre32 himself who realized the novelty generally posed by the normative elements of the crime's definition (tipo) that he 'discovered'; stated summarily: despite being components of unlawfulness, as they do not cease to be elements of the crime's definition (tipo), they would fall, for this author, under the rule of error regarding circumstances of the fact (...) that is, they would require -unlike unlawfulness- being encompassed by the perpetrator's criminal intent (dolo), as they would form part of the factual assumption upon which the evaluative judgment of unlawfulness falls, so that the error regarding a normative element of the crime's definition (tipo) would be what we today call an error of fact (error de tipo), or if preferred, with more neutral terminology, an error excluding criminal intent (dolo)." Nombre33, Nombre12. El error sobre elementos normativos del tipo penal. La Ley, 1st edition, Madrid, 2008, p. 42. Thus understood, the criminal intent (dolo) of the active subject must also encompass that normative-legal element (...) If, as is being stated, the vicissitudes of the permit are normative elements of the crime's definition (tipo), errors regarding the scope of said permit thus constitute errors of fact (errores de tipo). That is, in this specific case, the active subject must know not only that he lacks a permit for carrying, but also be clear that said permit is needed. Any false representation regarding the scope of those situations in which that permit is not necessary, which is precisely what is raised in this case, means that one is facing an error of fact (error de tipo). Therefore, the error invoked in this case is not an error of prohibition (error de prohibición) (which would imply the general lack of knowledge that carrying a weapon is a crime in Costa Rica, an issue that is not raised) but rather an error of fact (error de tipo), that is, the false assumption alleged by the active subject that he did not require the permit because he was not carrying a weapon, but rather transporting it (as the gunsmith distinguished), and that to do the latter, it was sufficient to comply with the requirements established in the directive issued by the Ministry of Public Security, transcribed below." Criminal Cassation Court, vote number 2010-641, emphasis supplied. If in this matter it is claimed that the accused received the money unaware that it came from a ‘serious offense (delito grave)’ and this is a normative-legal element of the crime's definition (tipo penal), the error alleged is of fact (de tipo), and not of prohibition (de prohibición), the distinction being relevant because the avoidability of the error, in the first case, excludes the crime if there is no parallel negligent crime definition (tipo culposo), which does not exist in this matter, whereas, in the second, it only reduces the penalty. Therefore, Nombre01's arrest in the United States on August 2, 2004, at most, could have raised an alert about the possible illicitness of the conduct from which the funds originated, a probability that lacks the firmness to be certainty, given the elements indicated previously. But if, from what has been pointed out so far, significant doubts can be inferred regarding the configuration of a ‘serious offense (delito grave)’ (because, due to evidentiary issues, the amount evaded in the United States with respect to what was transferred is unknown; no financial analysis was made of what was received in each period and, due to the date of the events, many of the transferred monies were prior to the applicable regulation for this matter, in addition to the issue of dual criminality regarding the minimum penalty and the statute of limitations for the criminal action) as a preceding element and, furthermore, there are broad and well-founded reasons to doubt the knowledge of that material object of the crime by the accused here, it happens, as if that were not enough, that the analysis of the matter cannot be exhausted on such aspects, because the crime's definition (tipo penal) cited so many times contains subjective elements different from criminal intent (dolo), which must be analyzed immediately.

§4. Other subjective elements of the crime's definition (tipo), different from criminal intent (dolo): "Alongside the cognitive element, there must exist in the crime of money laundering (legitimación de capitales) a will to hide or conceal the origin, location, etc., of the goods that the agent knows come from a crime. Whoever receives, transfers, converts objects that he knows come from a crime to hide or conceal their location, destination, ownership, etc., acts with the required danger-based criminal intent (dolo de peligro) (...) The criminal intent (dolo) must extend to the elements of the objective crime definition (tipo objetivo)..." (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 127-128). Does that exist in the instant case? While the money was received at the Banco de Costa Rica, it was declared to come from that sale of cigarettes, to the point that national banking authorities visited the company and gave a report on the matter. A record was left of the fund transfers to Nombre01's account and that he acquired properties or goods in his name or in the name of companies where he is the sole or majority partner. Indeed, those assets were identified with a seal used by Nombre01, and the people who worked for each business used a uniform with his logo, as related at trial by Nombre34 and Nombre05 (see folios 861 to 870). Nombre01, in the United States, declared the existence of such goods for purposes of offering them as collateral as part of the bail he was requesting for his freedom, as also recorded in the documentary evidence from that country and in the statements of its government officials who testified in the debate…then…is there a desire to conceal? In this Chamber's opinion, no, because the trail was easily verifiable, without the indicators being present that, certainly not necessarily, usually appear in these cases: “…the usual way to prove that knowledge is through circumstantial evidence (prueba indiciaria) (...) among which case law usually highlights a series of irregular or atypical acts in the usual financial or mercantile operation, such as knowledge of the use of fictitious identities, the use of companies without capacity or without real economic activity, the lack of known economic activity, unjustified increase in assets, etc. But all these indicators cannot disregard that or those that evidence, even by circumstantial means, the causal connection between the goods…” (Cfr. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the website of Universidad Externado de Colombia : www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, p. 81). So, this is an additional reason to accept the challenges and modify the appealed judgment.

§ 5. On confiscation (comiso): Regarding confiscation (comiso), the Court made no separation between the monies obtained prior to the atypicality of the acts (2002) and the later ones; between those that, judging by the trial court's (a quo) criterion, were obtained without criminal intent (dolo), because they were prior to Nombre01's arrest in 2004, and the later ones; nor between the fruits obtained from one or the other. This would have been sufficient for that part of the ruling to be unsustainable. In any case, having indicated previously the multiple reasons for which there are well-founded doubts that the acts are typical, both objectively and subjectively, doubts that cannot be resolved as they arise from the prosecutorial deficit of evidence, it is proper to reject the confiscation (comiso) of all goods, revoking the judgment on this point as well.

§ 6. In summary. The defense's argument is valid that in this case, it was not about money coming per se from an illicit activity, as would be the case with some prohibited object; the object (sale of cigarettes) was not illicit, but potentially the non-payment of taxes. However, in this matter, a conviction is not possible because: 1) dual criminality is not met, since when fitting the acts into national legislation, the acts committed by Nombre01 (the material object from which they originated) had a minimum penalty of less than four years, which was the amount governing under the law applicable to this matter; 2) Nombre01 has not yet been sentenced in the United States, so the specific penalty that can be imposed on him and whether it fits the national definition of ‘serious offense (delito grave)’ according to the referenced applicable national law is unknown; 3) the amount of the tax quota left unpaid in each year, during which the crime type varies, was not individualized, and a cumulative calculation cannot be made; 4) the accused did not have knowledge that the money came from a 'serious offense (delito grave)' because the activity of origin of the funds was lawful (sale of tobacco), even if the payment of taxes was not, an aspect on which there is no evidence that the accused knew; 5) nor was it his purpose to hide the activity from which it came; 6) the issue of the statute of limitations for the criminal action in both countries based on the annual amounts received was not analyzed.

In summary, despite the fact that the trial court's judgment is an important legal document that diligently and exhaustively addressed the matter before us, this Court does not agree with the conclusions reached, nor does it endorse the omission of aspects that are essential and affect the merits of the decision, without detracting from its form, since the judgment does contain the reasoning required for its validity and such omissions arise from the prosecutorial investigation itself, which cannot be remedied with new evidence and which mark the difference in criteria and outcome between that decision and this one. However, the objective effort of the Tribunal (to the point of rejecting prosecutorial claims and pointing out to that body its abuses, including the one regarding the police deployment for the arrest of the accused: see folio 970), is not in vain because, in addition to respecting the criteria set forth therein, it has allowed this Chamber to rule from this instance, without ordering any remand (reenvío), given that the errors and omissions noted cannot be corrected at this instance, as this would require new evidence or reopening the investigation, which is not possible when an appeal has been filed (in such aspects) only in favor of the defendant (see Article 447 of the Code of Criminal Procedure (Código Procesal Penal)) because this would violate the principle of prohibition of reformatio in peius (prohibición de reforma en perjuicio). Therefore, both challenges must be upheld in the aforementioned aspects, and what is appropriate is to partially overturn the conviction decreed in the proceedings, as well as the decision of asset forfeiture (comiso de bienes) and, in its place, to acquit Nombre01 of all penalty and responsibility for the crime of money laundering (legitimación de capitales) that has been attributed to him, ordering the full restitution of the seized, sequestered, or annotated assets, over which their forfeiture (comiso) is rejected; as well as his immediate release and the cessation of any precautionary measure issued against him, if no other cause prevents it, and it is resolved without special ruling on costs. </span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:31.2pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">IV.-</span><span style=\"font-family:Arial; color:#010101\"> The prosecutor from the Public Ministry (Ministerio Público), attorney Natalia Sarkis Fernández, filed an appeal against the judgment alleging, in its three sections, the incorrect exoneration of some assets from the forfeiture (comiso) measure. In </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">the first ground</span><span style=\"font-family:Arial; color:#010101\">, she argues that Article 110 of the Penal Code and Articles 83, 87, 93, and 94 of the Law on Narcotics (Ley sobre Estupefacientes) were violated since it was demonstrated that the defendant obtained assets and incorporated companies starting in August 2004 to launder money originating from Nombre01 and illegitimately acquired by him, despite which the forfeiture (comiso) of some of them was not decreed because the formal process of notifying the representatives or resident agents of various companies was not completed. She cites excerpts from the judgment and considers it erroneous not to have decreed said measure against the properties with registration numbers […] in the name of Nombre35. She indicates that although the defendant here was not notified in his capacity as representative of said company, Article 11 of the Notifications Law (Ley de Notificaciones) indicates that a person can be deemed notified if they have become aware of the process, and the defendant here appeared in the proceedings on June 2, 2011, a moment from which he acquired knowledge of the entire file, including the annotation regarding such assets, which was reaffirmed with the accusation, in the preliminary hearing, and in the trial, so that, having appeared in the process, he could exercise the defense of his interests. She requests that the forfeiture (comiso) of such assets be ordered in favor of the Costa Rican Drug Institute (Instituto Costarricense sobre Drogas). In the </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">second ground</span><span style=\"font-family:Arial; color:#010101\">, it is alleged, again, that the decision of the trial court not to decree the forfeiture (comiso) of some assets was incorrect, this time, those acquired by the defendant in his personal capacity and consisting of the properties with registration numbers […], by indicating that although it was demonstrated that the money for their acquisition came from the crime committed by Nombre01 and that the aim was to integrate and place it in the Costa Rican financial system to conceal the illicit activity of his brother, the forfeiture (comiso) was not decreed because the mortgage creditors of those assets were not notified so they could assert their rights. She points out that, even though such communication was not made, that was not a reason to exclude them from said measure, because the rights of others over them could be claimed regardless of who the owner was. She cites, in support of her thesis, vote number 1216-2005 of the Third Chamber (Sala Tercera) and number 2011-1054 of the Criminal Cassation Court of Goicoechea (Tribunal de Casación Penal de Goicoechea). Finally, in the </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">third ground</span><span style=\"font-family:Arial; color:#010101\">, the incorrect application of the same normative provisions related to forfeiture (comiso) is alleged, this time concerning the money found in the home of Nombre01 […] during the raid, totaling approximately seventeen million colones and ten thousand dollars. She states that it was proven that all of the defendant’s commercial activities began as a result of his criminal actions and that this money, which was hidden in his house, was the profits from the commercial businesses he had undertaken, since they were cash reports from one of the companies and that, due to a prior robbery, he did not leave it at the business but at his house, but the Tribunal did not order their forfeiture (comiso) because that money was not included in the charged facts and because it was apparently the product of the commercial activities of the defendant’s businesses, which she considers erroneous. She requests the forfeiture (comiso) of that money in favor of the ICD. </span><span style=\"font-family:Arial; text-decoration:underline; color:#010101\">The defense did not respond to this appeal</span><span style=\"font-family:Arial; color:#010101\">. </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">The challenge is rejected. </span><span style=\"font-family:Arial; color:#010101\">As already stated, for this Chamber, what is appropriate is to acquit the defendant of all penalty and responsibility for the facts attributed to him and, therefore, there is no legal basis to order the forfeiture (comiso) of the assets exempted from that measure by the trial court (tribunal </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">a quo</span><span style=\"font-family:Arial; color:#010101\">), rather, said measure must be lifted on the assets over which it was ordered, as indicated in the previous section. Regarding the legal nature, characteristics, and principles governing the forfeiture (comiso) measure, this Chamber, under the name of the Criminal Cassation Court (Tribunal de Casación Penal) and with its current composition, has stated, for example in vote number 2010-1009: “ ... </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">the first thing that must be done to determine the legal nature of forfeiture (comiso) is to establish the characteristics, effects, and assumptions under which it proceeds. In accordance with Article 110 cited, forfeiture (comiso) requires, for its application: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.1) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">that a </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">crime (delito)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, not a misdemeanor or infraction, is being investigated; this is because the article begins by stating ‘Every crime (delito)’ and that expression, in a restrictive sense (Article 2 of the Code of Criminal Procedure (Código Procesal Penal)), can only be understood as referring to acts classified as such by the legislator (Book II of the Penal Code or special laws) who made the distinction with misdemeanors that have a different location in the normative body (Book III); </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.2)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> that this crime is intentional. The norm does not explicitly state this, but it indicates that what is lost are the instruments with which the illicit act was committed and the things deriving from its commission. Authors on the subject have stated, in our view according to a restrictive interpretation consistent with the principle of legality, that the intentional nature of the measure is extracted from the provision for ‘instruments’ contemplated by the law, since these: ‘...for the majority of doctrine are those that have been ’intentionally‘ used to commit the crime (...) thereby excluding, of course, those (...) of a negligent crime’ (Nombre36. Derecho penal. Parte general. Editorial Astrea, 3rd edition, Buenos Aires, p. 519. In the same sense: Nombre37, Eugenio Raúl; Nombre38, Nombre39 and Nombre40, Nombre39. Manual de derecho penal. Parte general. Ediar, Buenos Aires, 1st edition, 2005, p. 734; Nombre41. El comiso: análisis sistemático e instrumentación cautelar. Editorial Universidad del Rosario, 1st edition, Bogotá, 2007, pp. 59 and 64 and others cited in Nombre42. El comiso de bienes. IJSA, San José, 1st edition, 2006, pp. 70-73); </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.3) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">it would be applicable, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">in principle</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, to any intentional crime, as it is an institute regulated in the general part of the Penal Code, which is characterized, precisely, by affecting the codified criminal types or those of special laws;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\"> C.4) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">it can affect third parties provided they are made a party to the process. This is not established by the norm which, if interpreted in isolation, would lead to bypassing this requirement that emanates from a systematic interpretation of the legal system and which places Constitutional Law as what it is, the foundation of the rest of the normative hierarchy (see, in this regard, votes number 712-2006 of the Third Chamber (Sala Tercera) and 637-2010 of the Criminal Cassation Court of San José (Tribunal de Casación Penal de San José)); </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.5) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">forfeiture (comiso) does not affect the rights of the victim or of third parties in good faith; rather, these prevail over the state interest (in this sense, the votes of the Criminal Cassation Court of San José (Tribunal de Casación Penal de San José), numbers 2000-76, 2000-323, 2003-383, and 2004-101 and those of the Third Chamber (Sala Tercera), numbers 512-2001 and 1273-2005, among others); </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.6) the effects arise from the crime, so it is normatively provided that forfeiture (comiso) is decreed upon a conviction</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> (Article 367 of the Code of Criminal Procedure (Código Procesal Penal)). Should ’crime (delito)‘ be understood as a typical, unlawful, and culpable act or as the abstract stipulation of illegality referred to by the legislator? National jurisprudence, in general terms, has understood it as a legislative provision, without a specific declaration of responsibility, to the point that it has foreseen the possibility of forfeiture (comiso) with dismissals (desestimaciones), prosecutorial file closures (archivos fiscales), final dismissal rulings (sobreseimientos definitivos), even due to the statute of limitations for the criminal action, acquittals, with alternative measures such as conciliations, suspended sentences on probation, full reparation of damages and payment of fines, among others (see the summary of votes made by Nombre42. El comiso de bienes. IJSA, San José, 1st edition, 2006, pp. 230-263); </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.7)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> it lacks compensation, as it arises from a prior illegality, so it is an exception to the state’s inability to assume ownership of property without paying the value of the asset (Article 45 of the Political Constitution); </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.8)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> it is a public order measure, so it does not require a party’s request but can be issued ex officio; </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.9)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> as a measure arising from the state’s sovereign power, it must be provided for by law (Third Chamber (Sala Tercera), vote number 1217-1999), issued in a reasoned or substantiated manner, and with prior demonstration of the link or nexus between the object and the criminal act, so it is not a matter of strict liability (Third Chamber (Sala Tercera), vote number 505-99); </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.10)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">principles such as the presumption of innocence,</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> due process, and the right of defense govern, so the burden of proof falls on the State; </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.11)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> in Costa Rica, the forfeiture (comiso) of assets used in the preparatory phase that does not become executive is not normatively regulated; </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">C.12)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> the destination of the assets, once their ownership is obtained by the State, is expressly established by law (cf.: Law on the Distribution of Confiscated or Forfeited Assets (Ley de distribución de bienes confiscados o caídos en comiso), its regulations, and manual). </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">D)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> Based on similar considerations in comparative law, attempts have been made to explain the figure under discussion by indicating that it is an </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">accessory penalty (pena accesoria)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, a </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">security measure (medida de seguridad)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, a </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">civil consequence of the crime (consecuencia civil del delito)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> or a </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">sui generis legal consequence (consecuencia jurídica sui géneris)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> of the crime (this includes those who consider it a third class of sanction in criminal law together with penalties and security measures, but in reality, it would be a fourth path, since reparation has already been accepted as the third). We will analyze each of these options: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">D.1)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">Forfeiture (comiso) as an accessory penalty (pena accesoria): </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">It has been said that forfeiture (comiso) is an accessory penalty (pena accesoria) (in this sense, the votes of the Criminal Cassation Court of Cartago (Tribunal de Casación Penal de Cartago), numbers 2010-236 and 2010-265). However, the main criticism leveled against granting this legal nature is that forfeiture (comiso) does not respond to the essential purpose of the sanction accepted by our constituent and legislator, which is special positive prevention or resocialization (Articles 51 of the Penal Code and 5.6 of the American Convention on Human Rights (Convención Americana sobre Derechos Humanos)) as it is more consistent with retributive functions or general negative prevention (this is even accepted by the Criminal Cassation Court of Cartago (Tribunal de Casación Penal de Cartago) in votes numbers 2010-236 and 2010-265 when defining it as an accessory criminal sanction with a purpose of general prevention). From this perspective, forfeiture (comiso) would also not respond to the principle of culpability, which requires not</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> only culpability to be imposed (that is, a sanction could not be imposed without culpability, so it could not be imposed in the absence of a principal penalty nor in cases where the perpetrator is not sanctioned, even if a criminal injustice existed) but considers that this is gradable, which clashes with the rigid character of the figure. Likewise, if it were a penalty, it would violate the principle regarding its strictly personal character since forfeiture (comiso) applies even against third parties, provided they are given a hearing in the respective process and the assets, with their consent, have been used in the commission of crimes</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...)</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Forfeiture (comiso) is also not provided for, as an accessory penalty (pena accesoria), in Article 50.2 of the Penal Code, which only regulates as such the special disqualification (inhabilitación especial) defined in article 58 ibidem as the deprivation or restriction of one or more rights. This objection is both systematic (regarding the placement of the figure), and in view of constitutional principles, since it would clash with the principle of legality by exceeding the catalog of accessory penalties (penas accesorias) expressly contemplated by the Penal Code and the regulations specific to them. The difficulty could be overcome by stating that there is a prior law that provides for it for all crimes (Article 110 of the Penal Code); that there are other special norms that designate it as a penalty (for example, the Wildlife Conservation Law (Ley de conservación de la vida silvestre)) and that the figure contemplates the deprivation of a right: ownership. However, the same article 58 of the Penal Code states that the accessory penalties (penas accesorias) provided for as such by the legislator have a term, which is the same as absolute disqualification and ranges from 6 months to 12 years (Article 57), which is incompatible with the loss of ownership of the asset, which is definitive. Likewise, against any penalty, principal or accessory, there is the possibility of filing for review, which the Constitutional Chamber (Sala Constitucional) has indicated is incompatible with the res judicata derived from the forfeiture (comiso) (see vote number 2001-8565). Finally, it should not be forgotten that according to Article 110 of the Penal Code: ‘...the assessment of forfeiture (comiso) shall be made once the civil liabilities arising from the crime have been satisfied. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">undoubtedly if forfeiture (comiso) maintained the character of a penalty, it would not be admissible for the imposition of the penalty to depend on the satisfaction of civil liability.’ QUINTERO OLIVARES, Nombre43, Nombre44 and DE LLERA SUÁREZ-BÁRCENA, Nombre45. La responsabilidad civil ex delicto. Aranzadi, Navarra, 2002, pp. 45, 47. Therefore, either forfeiture (comiso) is not an accessory penalty (pena accesoria) or, if it were, it would be unconstitutional for violating the cited precepts, making it necessary to evaluate other possibilities. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">D.2) Forfeiture (comiso) as a security measure (medida de seguridad): </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Based on these questions, the doctrine indicated that, in reality, it was not that the measure was unconstitutional but that it should not be seen as a penalty and, in trying to explain it, it was thought that its nature was that of a security measure (medida de seguridad), thereby overcoming the objection that it responded to a principle of culpability since this escapes security measures whose basis is, rather, the dangerousness of the active subject. Forfeiture (comiso) and security measures also had in common the fact of responding more to special prevention criteria assumed in international instruments than to those of general prevention. But again criticism arose. First, because dangerousness in security measures arises from the existence of an injustice that may not be present in forfeiture (comiso), which is based on a presumed objective dangerousness of the thing per se (in the case of instruments used to commit the crime and in particular some types of them, such as weapons). Furthermore, because this explanation did not overcome the strictly personal character that security measures also have and which escapes the figure of forfeiture (comiso)</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...)</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Moreover, in Costa Rican criminal law, the Constitutional Chamber (Sala Constitucional) declared security measures (medidas de seguridad) for imputable persons unconstitutional, leaving only curative security measures (see Article 98 subsections 3, 4, and 5 and votes numbers 88-92 and 1588-98 of the Constitutional Chamber (Sala Constitucional)) and forfeiture (comiso), in most cases, is annexed to a declaration of sanction for imputable persons and is not mentioned as a security measure (medida de seguridad) (Articles 101 and 102 of the Penal Code), which are also governed by the principle of typicality and the prohibition of creation by analogy (Articles 97 and 2 of the Penal Code), in addition to having, also, the possibility of cessation (Articles 100 of the Penal Code and 478 of the Code of Criminal Procedure (Código Procesal Penal)) incompatible with forfeiture (comiso). Given this, another option was proposed. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">D.3) Forfeiture (comiso) as a civil consequence or reparatory measure derived from the crime:</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> although the Constitutional Chamber (Sala Constitucional) has referred to the figure from this perspective (thus in vote number 2001-8565: ‘forfeiture (comiso) is one of the civil consequences of the punishable act, along with restitution and reparation and compensation for damages’), which some cassation jurisprudence has also accepted (see, for example and among others, vote number 787-2006 of the Third Chamber (Sala Tercera)), the truth is that, technically, forfeiture (comiso) cannot be considered a civil consequence. First because, as stated, in Costa Rica it can be decreed ex officio, which is alien to the principle of party disposition and congruence in civil matters. Second, because it does not have a reparatory, restitutive, or compensatory character, to the point that Article 103 of the Penal Code lists it apart from those purposes, which are characteristic of the consequences derived from a crime. Third because ‘Civil liability ex delicto (responsabilidad civil ex delicto) constitutes an essentially civil matter, regardless of whether it is examined in the criminal process, which explains why there is no obstacle to its knowledge being deferred, where appropriate, to the civil jurisdiction. And although the crime, regarding the origin of this liability, is a necessary presupposition, it is not sufficient, since the production of damage is also required, an essential element for the origin of any civil liability, whether or not the act that caused it is typified in the Penal Code’ (Nombre46. Análisis jurídico-penal de la figura del comiso. Editorial Comares, Granada, 2004, p. 29), without it being possible to raise, through civil channels, an isolated claim for forfeiture (comiso). Furthermore, because ‘Civil liability is transmitted to the heirs </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> but that cannot be sustained equally with respect to the heirs of the person responsible for the act. In cases of the death of the accused or prosecuted person without having reached an agreement on forfeiture (comiso), it is not possible to apply...’ (QUINTERO OLIVARES, Nombre43, Nombre44 and DE LLERA SUÁREZ-BÁRCENA, Nombre45. La responsabilidad civil ex delictio. Aranzadi, Navarra, 2002, p. 46). To this, national doctrine adds that its effects are not of private law but in favor of the State, despite the fact that Costa Rica did not follow the recommendations discussed in the drafting of the Model Penal Code for Latin America and placed the figure within the civil consequences. This, as stated, does not affect its true legal nature, and what can be inferred is that the provision was erroneously placed, without this affecting its effects, concluding that ‘forfeiture (comiso) cannot be an effect of civil liability ex delicto (responsabilidad civil ex delicto); its essence is not that of a civil sanction’ (ABDELNOUR GRANADOS, Nombre03. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, p. 376). Based on these reflections, another possibility was proposed. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">D.4) forfeiture (comiso) as a complex act, an accessory, legal, mixed consequence </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">or</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\"> sui generis consequence of the crime: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">There are consequences derived from the crime that are so by provision of law, without sharing the nature of those figures. In Costa Rican law, such are the issue of the award of costs against the losing party (Article 267 of the Code of Criminal Procedure (Código Procesal Penal)); the publication of the sentence in crimes against honor (Article 155 of the Penal Code); the reconstruction, suppression, reform, restitution, or registry rectification derived from the falsity of public instruments (Article 483 of the Code of Criminal Procedure (Código Procesal Penal)); the registration of certain types of resolutions (Articles 30 subsections Nombre05 and k, 25 first paragraph, 36 ninth and tenth paragraphs of the Code of Criminal Procedure (Código Procesal Penal) and the Law on the Judicial Registry and Archive (Ley del Registro y Archivo Judiciales)) and forfeiture (comiso).

This has been regulated in countries such as Germany and Spain and is accepted by the majority of legal scholarship, although without agreement on the ideal name to use, but making it clear that it does not share the characteristics of the institutions indicated in previous sections: ¬ "...Name47 criticizes the unitary positions (...) pointing out that (...) confiscation (comiso) is a phenomenon of a complex nature with a very broad functional scope, since it not only fulfills a punitive task, but also those of restitution, compensation, policing and assurance, and even procedural ones of an evidentiary and precautionary type (...) In the same vein, Name48 and Name49 are of the opinion of the complex nature of confiscation (comiso) (...) Name50 (...) González Navarro proposes the mixed character of the institution (...) In contrast to penalties or security measures, accessory consequences are coercive acts or sanctions of their own nature, legally linked to the imposition of a penalty for an intentional crime or misdemeanor, or may be linked to it by judicial pronouncement in certain cases. Thus, the classification of confiscation (comiso) (...) as an accessory consequence implies that its foundation is neither the culpability nor the dangerousness of the active subject of the crime." Name41, Name41. El comiso: análisis sistemático e instrumentación cautelar. Editorial Universidad del Rosario, 1st edition, Bogotá, 2007, pages 59-60 and 62. Indeed, our legislation arises from the Model Penal Code for Latin America (Código Penal tipo para América Latina), where the issue of the legal nature and correct classification of confiscation (comiso) was widely discussed: "The opinion finally prevailed to situate confiscation (comiso) as having a criminal character, but not as a penalty, and outside the civil consequences of the punishable act, discarding the idea of this phenomenon as a procedural measure (...) One of the agreements of the Fourth Plenary Meeting held in Caracas, Venezuela from January 20 to 30, 1969, No. 89, was to include a text on confiscation (comiso), but on the understanding that it did not have the character of a penalty nor of an effect of civil liability (...) Why then, when ordering the regulations of that Code, was (...) confiscation (comiso) included under the Title (...) relating to 'Civil liability derived from the crime (Responsabilidad civil derivada del delito)'?" (Name51, Name03. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, pages 369-370). G) Having said the above, this Court considers that, in effect, Costa Rican confiscation (comiso) is, simply, a consequence established by the legislator for the crime (for certain types of crimes, as was said and will be discussed further) that, although it has criminal features (legality, burden of proof, innocence, nexus with the act), civil features (it proceeds against third parties), and administrative features (coercive power and state officiousness), it does not fit precisely into any of them and, therefore, principles specific to the penalty (such as culpability or temporality), to security measures (such as personality), or to reparation (such as the party-controlled principle) cannot be applied to it. Hence, it is valid for the legislator to regulate it for officious application, establishing the loss of ownership as definitive, etc. However, this does not mean that, as a measure that deprives rights, which it ultimately is, it is not subject to principles such as legality and proportionality, which are inherent, inclusively, to any punitive matter, including in the area of administrative law, as they are the only limiters of the State's power of imperium, as will be addressed in greater detail immediately below" (emphasis supplied). In the present case , there is no typical, unlawful, and culpable act to decree such a measure, nor can any factual or legal basis be deduced to consider that the movable or immovable property of the defendant should receive said measure, since not only has the existence of any (criminal) crime not been demonstrated, but neither have debts or civil or administrative illicit acts, or the breach of regulations of any other nature, been under discussion, to make that decision. Therefore, it is not necessary to delve into the prosecution's appeal, which presupposes the unlawfulness of the conduct, which this Chamber does not share for the reasons extensively outlined above.

POR TANTO:

The appeal filed by the defendant in a personal capacity and with the legal representation of attorney Juan José Picado Herrera is granted, and the one filed by his private defense counsel Carlos Luis Ibarra García is partially granted. The prosecution's appeal is denied. Consequently, the conviction decreed in the case file is overturned, as well as the decision for confiscation (comiso) of property decreed, and, in its place, Name01 is ACQUITTED of all penalty and responsibility for the crime of MONEY LAUNDERING (LEGITIMACIÓN DE CAPITALES) that has been attributed to him, ordering the full restitution of the confiscated, seized, or annotated property, over which its confiscation (comiso) is rejected; his immediate release and the cessation of any precautionary measure issued against him, if no other cause prevents it. The matter is resolved without special ruling on costs. In all other respects, that is, regarding the sentence rejecting additional confiscations (comisos), ordering the lifting of precautionary measures and the return of other property and case files, the decision remains intact.

NOTIFY.

Rosaura Chinchilla Calderón Lilliana García Vargas Edwin Salinas Durán Judges File : 11-000066-621-PE Against : Nombre01 Offense : Money laundering (Legitimación de capitales) Victim : Financial system and others :{ "75876", "norm_fecha": "04 Mar 2009", "norm_id": "65070", "art_num": "2" }, { "norm_nom": "Ley Contra la Delincuencia Organizada", "bdt": "1", "art_subnum": "0", "tipo_norma": "Ley", "art_id": "2", "norm_anno": "2009", "norm_num": "8754", "norm_ver": "87003", "norm_fecha": "22 Jul 2009", "norm_id": "65903", "art_num": "1" }, { "norm_nom": "Ley de Fortalecimiento de la Gestión Tributaria", "bdt": "1", "art_subnum": "0", "tipo_norma": "Ley", "art_id": "2", "norm_anno": "2012", "norm_num": "9069", "norm_ver": "89973", "norm_fecha": "10 Sep 2012", "norm_id": "73336", "art_num": "1" } ], "esResolucionEstructural": "0", "esResolucionOral": "0", "esResolucionRelevante": "1", "fecha": "2013-02-19", "tipoDocumento": "EXT", "esCriterioUnificador": "0", "tipoContenido": "Majority vote", "otrasReferencias": "Law, No.

9093, 22/04/1988, Art.15, Ley sobre Estupefacientes, Sustancias Psicotrópicas, drogas de uso no autorizado y actividades conexasLey, No. 7273, 21/05/1991, Art.17, Ley sobre Estupefacientes, Sustancias Psicotrópicas, drogas de uso no autorizado y actividades conexasLey, No. 7786, 15/05/1998, Art.1, 69, 72, Ley sobre Estupefacientes, Sustancias Psicotrópicas, drogas de uso no autorizado y actividades conexasLey No. 8302, 27/06/2003, Art.2 - Inciso B, Convención de las Naciones Unidas contra la Delincuencia Organizada TransnacionalLey No.7572 20/10/1995, Art.214,215, 216, Ley General de Aduanas (Primera versión)Convención de las Naciones Unidas contra el tráfico ilícito de estupefacientes y sustancias sicotrópicas Art.3.1", "doctrina": "Cfr. GÓMEZ-BENÍTEZ, José Manuel . Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26 y BAJO FERNÁNDEZ, Miguel y BACIGALUPO, Silvina. Política criminal y blanqueo de capitales. Marcial Pons, 2009Cfr. GÓMEZ-BENÍTEZ, José Manuel. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26. También en el sitio web: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pág. 66Cfr. GÓMEZ-BENÍTEZ, José Manuel. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 72 y 74. También en la siguiente dirección electrónica de la Universidad Externado de Colombia : www.revistas.uexternado.edu.co/index.php/derpen/article/.../98CASTILLO GONZÁLEZ, Francisco. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 83-85CASTILLO GONZÁLEZ, Francisco. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, pág. 87Cfr. BLANCO CORDERO, Isidoro. El delito fiscal como actividad delictiva previa del blanqueo de capitales. En: Revista Electrónica de Ciencia Penal y Criminológica. 13-01 , 2011. También e n la siguiente página de internet : http://criminet.ugr.es/recpc/13/recpc13-01.pdfCfr. BLANCO CORDERO, Isidoro. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 426-427Cfr. BLANCO CORDERO, Isidoro. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 428-429CASTILLO GONZÁLEZ, Francisco. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 125-126cfr. CASTILLO GONZÁLEZ, Francisco. El dolo. Editorial Juritexto. San José, 19 99 , pág s . 268-270Cfr. GÓMEZ-BENÍTEZ, José Manuel. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26. También en la siguiente página web : www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, págs. 76-77)Cfr. BLANCO CORDERO, Isidoro. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 660-661CASTILLO GONZÁLEZ, Francisco. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 125-126CALDERÓN CEREZO, Ángel. El marco jurídico del blanqueo de capitales: aspectos penales y administrativos. En la siguiente dirección electrónica: http://www.datadiar.com/actual/novedades_05/penal/blanqueo/d_may_02c.htmCfr. BLANCO CORDERO, Isidoro. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 662-663Cfr. BLANCO CORDERO, Isidoro. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 763 y 765CASTILLO GONZÁLEZ, Francisco. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 127-128Cfr. GÓMEZ-BENÍTEZ, José Manuel. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26. 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line-height:150%\"><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; color:#010101\">“§1.</span><span style=\"line-height:150%; font-family:Tahoma; font-size:11pt; font-style:italic; color:#010101\"> </span><span style=\"font-family:Arial; color:#010101\">El delito de legitimación de capitales es definido, por la doctrina mayoritaria, como un delito de relación o de enlace (no como un delito autónomo), es decir, que requiere la </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">conexión</span><span style=\"font-family:Arial; color:#010101\"> con un </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">hecho delictivo previo</span><span style=\"font-family:Arial; color:#010101\"> (Cfr. [Nombre1] ,</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial; color:#010101\">. </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales.</span><span style=\"font-family:Arial; color:#010101\"> Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26 y BAJO [Nombre2] ,</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">y [Nombre3] , .</span><span style=\"font-family:Arial; font-style:italic; color:#010101\"> Política criminal y blanqueo de capitales</span><span style=\"font-family:Arial; color:#010101\">. Marcial Pons, 2009 y los autores allí referidos). Este hecho previo puede ser definido por el legislador de muy diversas maneras (aludiendo a un listado de delitos, a la gravedad de las sanciones o, en términos mucho más amplios, asumiendo como posible cualquier otro delito) pero es necesario que exista y eso significa que —de atribuírsele a un sujeto en particular— éste haya sido juzgado y encontrado responsable, en firme, del delito (salvo que ello no haya sido posible por circunstancias personales, eximentes de pena , en cuyo caso bastará la demostración del injusto penal, siempre y cuando ello no sea incompatible con la legislación específica de cada país). Solo cuando no sea posible esa imputación directa (ya sea porque no se identificó al autor, porque éste falleció o porque la acción penal se extinguió por ciertos motivos, </span><span style=\"font-family:Arial; text-decoration:underline; color:#010101\">excluida</span><span style=\"font-family:Arial; color:#010101\"> la prescripción de la acción penal porque es necesaria la vigencia de dicha acción en ambas legislaciones, a los efectos de esa valoración, salvo norma en contrario, que aquí no la hay), dicho hecho previo puede ser demostrado, dentro del juicio referente a la legitimación de capitales, obviamente a partir de las reglas probatorias del país que juzga. Como se ha indicado, esto es así en términos generales y sin desconocer que hay tendencias modernas que, para soslayar el tema probatorio del ' delito grave ' previo (en singular), prefieren aludir, por un lado, a ' actividad delictiva ' ( lo que implica desplazar el acento en el nivel de acreditación previ a que han de tener los diferentes estratos de la Teoría del Delito, según el sistema que se siga ) , posibilitando que el delito sea cometido por el mismo agente del evento precedente (lo que no es posible de considerarse delito de relación) y, por el otro, a darle a este delito una naturaleza de ilícito autónomo, estableciendo un bien jurídico diferenciado (que ya no es la administración de justicia como suele suceder en los delitos de encubrimiento sino el orden socio-económico) lo cual, algún sector doctrinal ha condenado en forma contundente:</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> \"...esta perspectiva generalmente inconfesada abiertamente y camuflada bajo la fórmula genérica de la protección al orden socioeconómico, ha conducido a perversiones legales e interpretativas, que no solo han llevado a una aplicación abusiva de los tipos de lavado de capitales, sino que, además y paradójicamente, han restado eficacia a los tipos penales con relación a su interés político criminal. La primera perversión de esta idea político criminal consiste en la ampliación de los delitos base del lavado de capitales a cualquier delito, ni siquiera grave e incluido el fraude fiscal. La segunda, relacionada con la anterior y, al igual que la anterior, basada en la inconfesada pretensión de eludir las exigencias de la prueba en Derecho procesal penal, tiene que ver con la pérdida de contornos seguros del elemento típico de que el autor actúe con conocimiento de que los bienes objeto del lavado tienen su origen en un delito\" </span><span style=\"font-family:Arial; color:#010101\">(Cfr. [Nombre1] ,</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">. </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales</span><span style=\"font-family:Arial; color:#010101\">. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26. También en el sitio web: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pág. 66). Con esto se quiere adelantar, desde ya, que esta Cámara concuerda con tal autor cuando señala que: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">\"...el dolo requiere, pues, el conocimiento del riesgo concreto o peligro de que exista una sentencia condenatoria, única que puede dar contenido al elemento normativo 'delito' en los tipos de lavado de capitales. La existencia de sentencia condenatoria previa es, pues, parte imprescindible de este elemento normativo del tipo de lavado de capitales, por mucho que se quiera ignorar en la doctrina y en la jurisprudencia. La mejor demostración de que esto es así es que la prueba de que los bienes no proceden de delito alguno, es decir, de que no hay sentencia condenatoria alguna, debe implicar la absolución del supuesto blanqueador por atipicidad objetiva de su conducta\" </span><span style=\"font-family:Arial; color:#010101\">(</span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Op. cit</span><span style=\"font-family:Arial; color:#010101\">., pág. 78) por lo cual resulta un verdadero sinsentido que se haya iniciado en nuestro país un proceso por legitimación de capitales provenientes de una actividad previa que no es, </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">per se</span><span style=\"font-family:Arial; color:#010101\">, ilícita, cuando la causa que supuestamente originó ese evento (la venta de cigarrillos, a personas no indígenas, sin el pago previo de impuestos) no tiene, a esta fecha (y mucho menos a la data de la acusación) sentencia firme en el país de origen, desde que aún se desconoce la pena que podría llegar a imponérsele a [Nombre4], hermano del aquí acusado, en Estados Unidos de Norteamérica por tal conducta y sin que sea suficiente, para solventar ese tema (que es un elemento normativo del tipo según se adelantó), el testimonio de algunas personas que mencionan la pena </span><span style=\"font-family:Arial; text-decoration:underline; color:#010101\">probable</span><span style=\"font-family:Arial; color:#010101\"> que se le puede imponer que, dicho sea de paso, por ese mismo desconocimiento nacional, pudieron no haber sido interrogados y, por ende, omitir sobre todas las particularidades punitivas del sistema anglosajón, como los extremos mínimos de ese delito, lo que se retomará luego. Adicionalmente, es preciso señalar que, de ser diferentes los países en los que se cometió el hecho previo (entiéndase 'delito' o 'actividad delictiva' lo que no es solo cuestión de terminología sino que , como se indicó, tiene importantes consecuencias jurídicas) y el hecho de legitimación juzgado, debe darse la </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">doble identidad o doble incriminación</span><span style=\"font-family:Arial; color:#010101\">, es decir, que el hecho previo, del que se dice proviene el capital que se busca legitimar, debe ser delito también en aquel país en donde se juzga la referida legitimación y, salvo que haya legislación expresa que lo regule de otro modo, no debe estar prescrito en ninguno de los dos. Al respecto señala la doctrina nacional:</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> \"El hecho previo del cual deriva el objeto de interés económico, a su vez objeto material del delito de legitimación de capitales, debe ser al menos </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">típico y antijurídico</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, es decir, previsto como delito en una ley penal y que no esté amparado a una causa de justificación, sin que sea necesario que sea culpable (accesoriedad limitada), es decir, que no requiere que el hecho sea cometido culpablemente por el autor previo ni que sea punible en general, salvo excepciones. El §261 StGB alemán dice explícitamente que el objeto de interés económico debe provenir de un \"rechtwidrige Tat\" (hecho antijurídico). La muerte del autor previo, típico y antijurídico, no tiene influencia con relación a (sic) la persecución del delito de legitimación de capitales. El hecho previo debe ser lo suficientemente concretizado y determinado. El hecho previo, que es apto para conectarse con el delito de legitimación de capitales debe ser punible en la jurisdicción costarricense y si se sitúa fuera del territorio nacional y </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(sic)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> tiene que se </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">punible igualmente en la jurisdicción extranjera. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101\">Cuando el hecho previo prescribió se plantea la pregunta de si es posible la persecución por el delito de legitimación de capitales. El delito previo debe ser punible en el Derecho penal costarricense y un hecho prescrito en general no lo es</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">. Algunos autores alemanes consideran que si el hecho previo está prescrito es un hecho irrelevante para la persecución por el delito de legitimación de capitales. Sin embargo, la doctrina mayoritaria alemana y la casi totalidad de la doctrina suiza consideran que cuando el hecho previo ya está prescrito no es posible una condenatoria por el delito de legitimación de capitales. La razón de lo anterior es que el delito de legitimación de capitales es un delito conexo con el delito previo y si el Estado renunció a la persecución de éste no es posible perseguir el delito conexo </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">No es necesario que el autor del hecho previo sea conocido o que viva</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">o, cuando radicó en el extranjero, que haya sentencia firme que condene el hecho previo</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">o que éste sea perseguido por las autoridades extranjeras competentes</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Creo que es necesario que el Tribunal determine la existencia del hecho previo y su carácter típico y antijurídico, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">sin que baste la simple sospecha de que el objeto proviene de un hecho punible</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">. El establecimiento de la prueba del hecho previo puede hacerse por sentencia firme, si fue conocido por una autoridad competente. Si ésta prueba falta puede probarse el carácter típico y antijurídico del hecho previo, que es un elemento normativo del tipo de legitimación de capitales. Esta prueba debe hacerla el juez que conoce en el país del delito de legitimación de capitales conforme a los criterios de la libertad probatoria y de la libre valoración de la prueba. En todo caso el establecimiento del hecho previo por el juez nacional como un elemento normativo del tipo penal de legitimación de lavado </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(sic)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> no implica dictar una sentencia en el suelo nacional sobre el hecho previo ocurrido en el extranjero\" </span><span style=\"font-family:Arial; color:#010101\">(CASTILLO [Nombre5] , . </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">El delito de legitimación de capitales</span><span style=\"font-family:Arial; color:#010101\">. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 91-94; se suplen los destacados)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">.</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> </span><span style=\"font-family:Arial; color:#010101\">Tesis que, en principio y salvo en lo que se dirá, esta Cámara comparte, con las advertencias de que si bien la legislación alemana puede requerir un injusto penal para el hecho previo, ello no es unánime en todos los ordenamientos pues muchos aluden a 'delito' y habrá de estarse a lo que cada una regule, por un lado y, por el otro, que sí consideramos necesario que, de reputarse el hecho como cometido en el extranjero, se haya seguido o pretenda seguir proceso y, de haberlo habido, se aporte la sentencia condenatoria extranjera (que no es un requisito de procedibilidad sino un elemento normativo del tipo), salvo que, como ya se adelantó, sea imposible determinar el autor o se hayan producido causas personales de exclusión de la punibilidad pues, de lo contrario, se produciría un juzgamiento ilegal del hecho previo, por una autoridad no competente. Por otra parte, </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">ambos delitos, </span><span style=\"font-family:Arial; color:#010101\">es decir el hecho base con el delito de enlace,</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\"> deben de tener una relación lógica entre sí</span><span style=\"font-family:Arial; color:#010101\">,</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> pues, por mucho que un hecho previo sea delictivo en dos ordenamientos diferentes y se cumplan todas las previsiones legales para considerarlo válidamente como hecho precedente (es decir, que tenga el monto mínimo de pena o esté en la lista de los enunciados como tales por el legislador), si no hay un nexo lógico de conexión entre el evento previo y el posterior mal se haría con pretender alguna sanción: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">\"La naturaleza de la unión entre el bien apto para el blanqueo y el hecho previo es otro de los problemas a resolver. Un sector doctrinal admite que la conexión entre ambos ha de ser de tipo causal. Ello parece lógico en la medida en que los bienes susceptibles de ser blanqueados han de tener su origen, su causa, en un hecho delictivo previo, derivarse de él </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> parece entonces necesaria la fijación de límites, esto es, la determinación de los criterios que producen la ruptura de la unión causal. Esta manera de razonar nos conduce al análisis de una serie de criterios, a consecuencia de los cuales se pueda producir una interrupción del nexo causal, determinando que los bienes no puedan ser considerados ya procedentes del hecho previo. Esta necesidad de limitación va unida al hecho de que la cuestión de la procedencia fundamentaría un regresus ad infinitum en principio no admisible.

A substantial part of the legal economy could end up being considered contaminated within a short period of time as a consequence of an excessively broad and limitless interpretation of the criterion of provenance or origin. This situation has been criticized by Swiss legal doctrine for being contrary to the constitutional guarantee of property acquired in good faith" (BLANCO [Nombre6], . *El delito de blanqueo de capitales*. Aranzadi, 3rd edition, 2012, p. 341). This requires establishing both prior objective limits to the possession of the allegedly laundered object and subsequent ones, a topic for which the theories of equivalence of conditions, adequacy, and objective imputation have been used to determine, in cases of mixing licit and illicit assets, whether total contamination, total decontamination, partial contamination, etc., applies. For our purposes here, for now, it is clear that, for example, if a millionaire drives drunk in his country and that conduct is punishable by imprisonment, the fact that he transfers millions in sums of money to another country, however much he intends to evade the criminal consequences (fine) or civil consequences (liability) derived from that driving, could not be considered money laundering (legitimación de capitales), since the money did not have its origin (origen) in the crime, but rather pre-existed it, and thus, the evasion of liability cannot be punished using the crime at hand. Moreover, by virtue of the principles of innocence and *non bis in ídem*, if the prior act was tried abroad and the accused person was acquitted or the judgment demonstrated that the illicit act was not committed, it is not feasible for it to form the basis for a subsequent money laundering (legitimación de capitales), nor is it possible for national courts to revisit it, with new evidence or by reassessing in a different manner the evidence weighed there, because this would affect the principle of material res judicata guaranteed both by our Political Constitution (numeral 42) and by the international human rights instruments subscribed to by the country (see articles 8.4 of the American Convention on Human Rights and 14.7 of the International Covenant on Civil and Political Rights). This, in general terms, since a specific analysis must be made of the criminal type applicable to the factual species submitted to our knowledge, to determine whether all those doctrinal criteria can be extrapolated to domestic law and whether the selected criminal type contains other important elements (principle of legality). To that end, it is necessary to determine which criminal law is applicable to this matter, given that there have been several that regulate the subject.

§2. Law applicable to this case and objective elements of the crime: (a) In Costa Rica, before 1988, there was no crime similar to the one under discussion, neither in name nor in elements; rather, criminal legislation, mostly collected, as it should be, in the Penal Code—and not scattered, as now, across multiple special laws—only provided for some crimes of concealment, such as receiving stolen property, receiving property of suspicious origin, real facilitation, and personal facilitation (cfr. articles 330 to 332 of the Penal Code, renumbered by laws Nº 7732 and 9048 and according to the SINALEVI system). (b) It is with law Nº 9093, of April 22, 1988 (published in Supplement Nº 16 of La Gaceta Nº 83 of May 2, 1988), *Ley sobre Estupefacientes, Sustancias Psicotrópicas, drogas de uso no autorizado y actividades conexas*, that this subject is regulated for the first time in a manner very similar to the current one, in article 15, which stated "Imprisonment of eight to fifteen years shall be imposed on whoever carries out any act or contract, real or simulated, of acquisition, possession, transfer, or disposition of assets, tending to hide or conceal the origin of economic resources obtained through illicit drug trafficking or crimes related to that activity, regardless of the place where the illicit act was committed. When the act was committed abroad, its commission may be proven by any means" (emphasis added). Note how this first regulation circumscribed the scope of application of money laundering (legitimación de capitales) to those obtained from activities related to drug trafficking. What should be understood by drug? Article 1 of that law made reference to substances that cause dependency. However, although there are many substances that cause it (including alcohol, tobacco, some soft drinks, and even coffee), it was not the medical-cultural criterion that should be used to unravel the meaning of the term, but rather "drugs" is a normative, juridical concept, which must be filled in from legal definitions adopted by the country and which, because they exist, are restrictive and prevail over cultural criteria (article 1 of the Penal Code). Thus, the *Convención única sobre estupefacientes* (Single Convention on Narcotic Drugs) (signed by Costa Rica on March 30, 1961, and incorporated into domestic law by law Nº 4544 of March 11, 1970) established several lists (I, II, III, and IV) of substances subject to state control, among which tobacco was not mentioned, which is what was traded here and from whose sale the profits forming the basis of this process originate. It should be added that this international regulation already alluded to crimes related to drugs and narcotics as "serious crimes," without defining this term (see articles 36.1; 36.2.a.iv). Nothing was expressed regarding tobacco in the *Protocolo de Modificación de la Convención Única sobre estupefacientes* (Protocol Amending the Single Convention on Narcotic Drugs) (signed by our country on March 25, 1972, and incorporated into domestic law by law Nº 5168 of December 26, 1972); in the *Convenio sobre sustancias psicotrópicas* (Convention on Psychotropic Substances) (signed by Costa Rica on May 31, 1972, and incorporated into domestic law by law Nº 4990 of June 10, 1972); nor, finally, in the *Convención de las Naciones Unidas contra el tráfico ilícito de estupefacientes o sustancias psicotrópicas* (United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances) (signed by Costa Rica on April 25, 1989, and incorporated into domestic law by law Nº 7198 of November 1, 1990). ([Nombre7]) That first law against drug trafficking was reformed by law Nº 7233 (*Ley sobre estupefacientes, sustancias psicotrópicas, drogas de uso no autorizado y actividades conexas*, published on May 21, 1991) which, in its numeral 17, established: "Imprisonment of eight to twenty years shall be imposed on whoever intervenes in any type of contract, whether real or simulated, of alienation, investment, pledging, assignment, conversion, transfer, custody, or concealment of the nature, origin, location, destination, or circulation of profits, things, valuables, securities, or assets coming from the criminal acts typified in this law or from the economic benefit obtained from said crimes, provided that they knew that origin and tend with those actions to hide or conceal the origin of the resources or to elude the legal consequences thereof, regardless of the place where those illicit acts were committed. Personal facilitation of the crime established in this article shall be punished with the penalty provided for the perpetrator. When drug trafficking or crimes related to that activity, even those referring to the conducts typified in this article, have been carried out abroad, their respective demonstration may be proven by any means of proof, provided that the guarantees established in national legislation and in international conventions accepted by Costa Rica for the protection of the rights of the accused are respected. The banks of the National Banking System must render the reports related to the conducts typified in this article, which the Public Prosecutor's Office or the judges of the Republic request of them, even in the preparatory investigation phase. Judges may also order that any documentation or means of proof that the banks have in their possession be delivered to them, when necessary for an investigation. The resolution agreeing to the foregoing must duly substantiate the need for the report or the contribution of the means of proof" (emphasis added). In this legislation, the referred article no longer referred to a normative-juridical concept not contemplated in the rule, but rather, expressly, therein it related the laundering (legitimación) of assets to the other crimes typified there, among which, it should be noted, there was none alluding to the trade of tobacco or anything different from narcotics trafficking. (d) In a similar sense, law Nº 7786, in force since its publication on May 15, 1998, pronounced itself, which, in its numeral 1, circumscribed the scope of action of said regulation to activities related to the substances described in those international instruments (among which, as already stated, tobacco did not appear) as it pointed out: "This law regulates the prevention, use, possession, trafficking, and commercialization of narcotics, psychotropics, inhalable substances, and other drugs and pharmaceuticals capable of producing physical or psychic dependence, included in the Single Convention on Narcotic Drugs of the United Nations of May 30, 1961, approved by Costa Rica through Law No. 4544 of March 18, 1970, amended in turn by the Protocol amending the Single Convention on Narcotic Drugs, Law No. 5168 of January 8, 1973; as well as in the Vienna Convention on Psychotropic Substances of February 21, 1971, approved by Costa Rica through Law No. 4990 of June 10, 1972; likewise, in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of December 19, 1988, approved by Costa Rica through Law No. 7198 of September 25, 1990; in addition, the regulations on this matter that are approved for inclusion in the lists that the Ministry of Health must prepare, keep updated, and publish annually in La Gaceta. Furthermore, the control, inspection, and supervision of activities related to inhalable substances, drugs or pharmaceuticals, and the products, materials, and chemical substances that intervene in the elaboration or production of such substances are regulated; all without prejudice to what is stipulated on this matter in the Ley General de Salud, No. 5395 of October 30, 1973. In the same way, financial activities are prevented and sanctioned, as a way to avoid the penetration of capital coming from the crimes of illicit trafficking and other related crimes and of all procedures that may serve as means to launder (legitimar) capital coming from drug trafficking. It is a function of the State and is declared of public interest to adopt the necessary measures to prevent, control, investigate, avoid, or repress any illicit activity related to the subject matter of this law" and which, in its numeral 72, typified: "Shall be punished with a prison sentence of eight to twenty years whoever: a) Converts, transfers, or transports goods of economic interest that proceed, directly or indirectly, from the illicit trafficking of narcotics, psychotropic substances, or related crimes, to hide or conceal their illicit origin or to help, through such conversion, transport, or transfer, any participant in the commission of one of these crimes to evade the legal consequences of their acts. b) Hides or conceals the nature, origin, location, destination, movement, or true ownership of resources, goods, or rights related to them, with knowledge that they proceed directly or indirectly from the illicit trafficking of narcotics, psychotropic substances, or related crimes. The penalty shall be ten to twenty years when the preceding acts are committed by employees, officials, directors, owners, or other authorized representatives of financial institutions" (emphasis added). Said law was in force until January 10, 2002. (e) On January 11, 2002, Law Nº 8204, called "Reforma integral de la Ley sobre estupefacientes, sustancias psicotrópicas, drogas de uso no autorizado, legitimación de capitales y actividades conexas", was published in La Gaceta Nº 8. This body of articles had the particularity of broadening the criminal spectrum it regulated, since its article 1, besides referring to the substances mentioned in those international conventions accepted by the country, mentions, in the fourth and fifth paragraphs "Furthermore, financial activities are regulated and sanctioned, with the aim of avoiding the penetration of capital coming from serious crimes (delitos graves) and all procedures that may serve as means to launder (legitimar) said capital. For the purposes of this Law, serious crime shall be understood as conduct that constitutes a crime punishable by deprivation of liberty of four years, as a minimum, or a more severe penalty" (boldface added). In that context, numeral 69 stated: "Shall be punished with a prison sentence of eight to twenty years: a) Whoever acquires, converts, or transmits goods of economic interest, knowing that these originate from a serious crime (delito grave), or carries out any other act to hide or conceal the illicit origin or to help the person who participated in the infractions to evade the legal consequences of their acts. b) Whoever hides or conceals the true nature, origin, location, destination, movement, or rights over the goods or the ownership thereof, knowing that they proceed, directly or indirectly, from a serious crime (delito grave). The penalty shall be ten to twenty years of imprisonment when the goods of economic interest originate from any of the crimes related to the illicit trafficking of narcotics, psychotropic substances, money laundering (legitimación de capitales), diversion of precursors or essential chemical substances, and related crimes" (the emphasis is not original). Of course, the legislative activism did not stop there, but rather three additional normative changes occurred that are important to review: (f) On October 29, 2004, the *Ley contra la corrupción y el enriquecimiento ilícito en la función pública* Nº 8422 of September 14, 2004, was published in La Gaceta Nº 212, which, in its article 47, refers: "Receiving stolen property, legalization, or concealment of assets. Shall be punished with imprisonment of one to eight years, whoever hides, secures, transforms, invests, transfers, guards, administers, acquires, or gives an appearance of legitimacy to assets or rights, knowing that they have been the product of illicit enrichment or criminal activities of a public official, committed on the occasion of the office or through the means and opportunities it provides them." That is to say, a crime of money laundering (legitimación de capitales) was created specifically for assets originating from functional crimes. (g) Likewise, in Supplement Nº 29 to La Gaceta Nº 143, on July 24, 2009, the *Ley contra la Delincuencia organizada* Nº 8754 was published, in whose article 1 it was indicated: "Interpretation and application. Organized crime is understood as a structured group of two or more persons that exists for a certain time and acts in concert with the purpose of committing one or more serious crimes (delitos graves). The provisions of this Law shall be applied, exclusively, to the investigations and judicial proceedings of cases of national and transnational organized crime. For everything not regulated by this Law, the Penal Code, Law Nº 4573; the Code of Criminal Procedure, Law Nº 7594, and other concordant laws shall be applied. For the entire penal system, a serious crime (delito grave) is one that, within its range of penalties, can be punished with imprisonment of four years or more" (boldface added). Regarding this regulation, it is worth commenting that it defined 'serious crime (delito grave)' as one punishable with a penalty of four years or more, regardless of in which range of the punitive scale that amount was (minimum or maximum limit), but rather it sufficed that the act *could* be punished with such a sanction. However, the article is contradictory because, on one hand, it states that this definition is for the entire penal system when, immediately beforehand, it had stated that the provisions of that regulation would only apply to cases of organized crime. This law arose on the occasion of the obligations contracted by the Costa Rican State upon signing the *Convención de las Naciones Unidas contra la Delincuencia Organizada Transnacional* (United Nations Convention against Transnational Organized Crime), known as the *Convención de Palermo* (Palermo Convention), adopted on November 15, 2000, and approved by law Nº 8302, published in La Gaceta Nº 123 of June 27, 2003. This international instrument, in article 2.b), defined 'serious crime (delito grave)' in the following manner: "...shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty" (the underlining is external), which is a contradiction in terms because if it is the maximum penalty, it cannot be stated to be "at least" or that it could be a higher penalty. In any case, both laws are subsequent to the accusation that concerns us here and, as will be seen, are not more beneficial for the accused, such that they cannot be applied retroactively (articles 11 and 12 of the Penal Code and 34 of the Constitution). Finally, (h) article 2, point 1, subsection a) of the *Ley de Fortalecimiento de la Legislación contra el Terrorismo* (Law for Strengthening Legislation against Terrorism), N° 8719 of March 4, 2009 (published in La Gaceta Nº 52 of March 16, 2009, and in force since then), changed the name of the law at hand so that, henceforth, it would be called "*Ley sobre estupefacientes, sustancias psicotrópicas, drogas de uso no autorizado, actividades conexas, legitimación de capitales y financiamiento al terrorismo*", the content of article 1 being reformed by said law, where the reference to and definition of 'serious crime (delito grave)' is suppressed to, instead, broadly establish that, with said law: "Furthermore, financial activities are regulated and sanctioned, in order to prevent money laundering (legitimación de capitales) and actions that could serve to finance terrorist activities, as established in this Law." For its part, in article 2, point 1, subsection b) of the referred Law N° 8719 of March 4, 2009, the content of numeral 69 was modified to read as follows: "Shall be punished with a prison sentence of eight (8) to twenty (20) years: a) Whoever acquires, converts, or transmits goods of economic interest, knowing that these originate in a crime that, within its range of penalties, can be punished with a prison sentence of four (4) years or more, or carries out any other act to hide or conceal the illicit origin, or to help the person who participated in the infractions to evade the legal consequences of their acts. b) Whoever hides or conceals the true nature, origin, location, destination, movement, or rights over the goods or the ownership thereof, knowing that they proceed, directly or indirectly, from a crime that within its range of penalties can be punished with a prison sentence of four (4) years or more.

The penalty shall be ten (10) to twenty (20) years of imprisonment when the assets of economic interest originate from any of the crimes related to the illicit trafficking of narcotic drugs, psychotropic substances, money laundering (legitimación de capitales), diversion of precursors, essential chemical substances, and related crimes, acts classified as terrorist according to current legislation, or when the purpose is the financing of acts of terrorism and terrorist organizations" (emphasis added). This latter regulation unnecessarily regulated chain money laundering (proceeding from a previous crime of that same nature), given the definition of 'serious crime,' and required a legislative erratum to correct some internal defects (see publication in La Gaceta N° 63 of March 31, 2009), which speaks volumes about the criminal policy and penal technique it incorporated. It is true that, in addition to the law, many of the cited international instruments, ratified by the Costa Rican State, established the state obligation to repress money laundering (legitimación de capitales) or asset laundering, but the assumption of an international obligation does not, ipso facto, create criminal norms, since these require a formal law, that is, one emanating from the Legislative Assembly, following the procedure established for that purpose by the legal system and the establishment of a specific penalty for each act, none of which those conventions possess, as they allude to the need to prevent certain acts, define them, may recommend punitive frameworks, etc., without fulfilling those requirements derived from the Principle of Legality in Criminal Matters. From the foregoing "legal archaeology," the following can be extracted as first important conclusions for the matter at hand: (i) In Costa Rica, the crime of money laundering (legitimación de capitales) did not exist until May 2, 1988, since, before that date, what was regulated in the Penal Code were crimes of concealment, without foreseeing many acts aimed at distracting the proceeds of crime now listed in other special provisions; (ii) From May 2, 1988, until January 10, 2002, the only money laundering that was criminalized was that arising from the trade of drugs, narcotics, or psychotropic substances, substances that do not include all those that generate addiction, but only those listed internationally and within which tobacco was not foreseen; (iii) Starting from January 11, 2002, the punitive spectrum was expanded to penalize the money laundering of assets from 'serious crimes,' and this term was legally defined (a normative-legal element of the criminal type) as any crime that had a minimum threshold of four years of imprisonment, which was maintained until March 15, 2009, except for assets from crimes committed by public officials, taking advantage of their positions, which, from October 29, 2004, to date, came to be regulated in an independent regulation that, incidentally, despite the proclamations set forth in the Statement of Purpose of the bill, actually significantly lowered the penalty for this event; (iv) From March 16, 2009, money laundering may originate from any crime punishable by imprisonment of four years or more (except, as already stated, for functional crimes regulated more leniently in the special regulation), regardless of whether this is the minimum or maximum threshold of the sanction, but it being sufficient that, in the abstract punitive range, this is one of the possible penalties to be imposed. This account is of special importance in this matter, given the principle contained in Article 11 of the Penal Code, derived from the old aphorism nullum crimen nulla poena sine previa lege, according to which "Punishable acts shall be judged in accordance with the laws in force at the time of their commission," except, of course, if later laws more favorable to the accused are enacted (Article 12 of the Penal Code), which, it should be said once and for all, does not occur in this case because, as can be seen from the account given, not only did the later laws maintain the same penalty or increase it compared to the previous ones—saved the case of functional crimes, not applicable to the species—but they also expanded the normative spectrum of the prior acts that could give rise to money laundering. Likewise, because, by virtue of the principle of correlation between accusation and sentence (Article 365 of the Criminal Procedure Code), only the accused acts could be taken as proven. It was thus how the proven facts of the sentence, keeping what was attributed unscathed, indicate, in what matters: "As proven facts of interest for the resolution of this matter, the Court lists the following: 1) Between 1996 and 2004, [Name4]—brother of the accused [Name7]—was investigated, significant evidence was gathered against him, and he was accused of activities typical of organized crime in New York, United States, among which are the commission of crimes of murder for hire, assault, kidnapping, arson, robbery, extortion, and tax evasion (evasión de impuestos), with the purpose of promoting the commercial activity of his company [Name8], a business for the sale of duty-free cigarettes located in the reservation […] and consequently with the sales limitations imposed by that location. 2) With the execution of the aforementioned criminal acts, the organization led by [Name7] boosted the commercial activity of the company [Name8], thereby obtaining—illicitly—large sums of money that it subsequently sent via bank transfers to Banco de Costa Rica for the purpose of eluding the consequences of such illicit acts of smuggling. 3) In the year 2000, the District Attorney's Office for the Eastern District of New York initiated an investigation against [Name4] for violations of the Corrupt Criminal Organizations Law, based on the illegal sale of duty-free cigarettes outside the described indigenous reservation that operated in Long Island, New York. 4) Between the year 2000 and the year 2004, [Name4], knowing of the investigations being conducted against him, transferred his income held at Banco N of Mastic, New York, United States, to the account in his name, number […] and to account number […] in the name of the accused [Name7], both at Banco de Costa Rica. 5) In addition to the sending of money, on October 3, 2000, [Name4] established in our country a Dollar Growth Fund in the Sociedad Administradora de Fondos de Inversión of Banco de Costa Rica that, as of August 12, 2004, held an accumulated fund in the sum of US$10,350,248.00. 6) On July 17, 2000, in San José Centro, before Notary Public [Name9] , [Name4] and the accused [Name7] appeared and, through deed one hundred thirty-two of volume twenty-nine of the protocol, [Name4] granted Unlimited General Power of Attorney without sum limit to the accused [Name7], for all his businesses, denoting the trust and closeness between the two. 7) On August 2, 2004, Mr. [Name4] was arrested in New York on the occasion of the said charges and was sentenced to a penalty of 10 years in prison for the crime of possession of a prohibited weapon, which he is currently serving in New York. 8) Between the years 2002 and 2004, the accused [Name7], received from [Name7] and kept in his savings account at Banco de Costa Rica number […] the sum of US$16,783,980.00 (sixteen million seven hundred eighty-three thousand nine hundred eighty United States dollars). In said account, on August 6, 2004 —knowing of the arrest his brother was suffering and of the illicit origin— the accused [Name7] received, to conceal, the sum of $4,400,000.00 (four million four hundred thousand dollars, USA currency) a transfer made by TMG RAMSR PARTNERS, a company linked to [Name4]. 9) On August 12, 2004, the accused [Name7] requested from the Sociedad Administradora de Fondos de Inversión (SAFI) of the BCR, the redemption for the sum of US$10,350,248.00 (ten million three hundred fifty thousand two hundred forty-eight United States dollars) from the Dollar Growth Fund in the name of [Name4], for which he provided the express request to that effect signed by [Name7] on August 11, 2004. With that money under his control, the accused [Name7] deposited it into his savings account […] to later constitute a Dollar Growth Fund in his name for the said global sum. 10) With such actions, the accused [Name7] managed to accumulate the total sum of $14,750,248.00 (fourteen million seven hundred fifty thousand two hundred forty-eight dollars USA currency) which he concealed to prevent the U.S. authorities from pursuing and seizing the money from the illicit activity of [Name4]. 11) Once the accused [Name7] managed to have in his name all of the funds transferred by [Name4] and following his instructions, starting from the year 2007 he proceeded to dispose of the money of illicit origin, through the acquisition of movable and immovable property located in the province of […]. 12) The assets that the accused [Name7] acquired under this criminal modality are (...) 13) The money laundered by the accused [Name7] and the acquisition of the movable and immovable property acquired by him, harmed the socio-economic order of the Costa Rican State" (cf. folios 846 to 848; emphasis added). Note, then, how three themes of interest arise from the proven facts: 1)- the defendant is accused of receiving money from his brother, money whose origin, according to the accusation, came from activities relating to organized crime in New York, United States, among which were the commission of crimes of murder for hire, assault, kidnapping, arson, robbery, extortion, illegal possession of a weapon, and tax evasion (evasión de impuestos). However, of all those charges, it must be said from the outset, the defendant's brother was convicted, with finality, only for the illegal possession of the weapon (according to the jury verdict of May 1, 2008: see document 897, p. 2 of the assistance file 11-91-1035-PE, folio 348) and although on that same occasion he was convicted by the jury for the tax evasion of the cigarettes, upon his appeal, District Judge [Name10] . dismissed the charges on April 16, 2010, and acquitted him, arguing the reasonableness that [Name7] was unaware of the applicability of the law (see documents from folios 352 to 371, translation file for penal assistance 11-91-1035-PE, volume II) and then, a state appeal caused that, from July 16, 2012 (moments before the development of this debate) , the Court of Appeal for the Second Circuit of the United States, composed of judges [Name11], [Name12] and [Name13] . reinstated the jury's pronouncement 2010 (see documents from folios 672 to 726/Volume II) pending, even to this date, the setting of the penalty for that act, which denotes, prima facie, the debatable nature of the point in question. The cited doctrine makes a differentiation between "illegal money" also known as "dirty money," which is that originating from criminal activities per se and whose subsequent laundering is termed 'recycling' or 'washing,' with the notions of "tainted funds" or "black money" which comes from lawful productive activities, with the consequent evasion of tax effects and whose laundering process is alluded to by the name of 'money whitening.' So, to situate ourselves immediately, based on the proven facts and the final acquittal sentence of [Name7] for the crimes of extortion, homicide, arson, etc., whose factual basis cannot be used in another matter without contravening the principle of res judicata, here we are faced with operations of 'whitening' of 'black' or 'tainted' money and not with the first phenomenon. Although the topic of criminal organizations is mentioned, the facts cannot be judged under the protection of the national regulation that governs organized crime (both in the law and through conventional ratification) since it had not been approved by then and, as if that were not enough, the defendant's brother was acquitted, with finality, of the remaining crimes alluding to that topic (see document 904 of the evidence file 3 provided by the defense, official translation, in folio 113). It is important to emphasize this because, even the prosecutor, in the oral hearing held in this office, referred to the other crimes, which constitutes, at the very least, a regrettable omission on her part, especially bearing in mind that it was the same prosecutor who attended the debate and received the evidence, so the duty of objectivity incumbent upon her (Article 63 of the Criminal Procedure Code) would require, at the very least, to leave it so stated, which, not only did she not do, but she tried to ignore with the sole reference to the North American prosecutorial indictment; 2)- the defendant was accused of receiving money from his brother, originating from those activities and later investing it; 3)- it was held as proven that [Name7], the defendant's brother, transferred to the country, between 2002 and 2004, a little over sixteen million dollars, leaving some sums in his name and others in the accounts of the accused here, to whom, on July 17, 2000, he gave unlimited general power of attorney without sum limit for the administration and disposition of his assets. With part of that money, on October 3, 2000, a dollar growth fund was constituted in Banco de Costa Rica and, approximately four million dollars of that sum were transferred, on August 6, 2004, the date on which the defendant's brother was arrested in the United States. On August 12, 2004, the accused made the redemption of that fund, transferring the money to accounts in his name, it being not until after 2007 that [Name7] began to invest part of that money in the acquisition of diverse types of movable or immovable property, which he registered both in his name and in that of companies where he figured as the principal shareholder. Relating the accused and accredited facts with the normative account given above, it must be said, then, that any event of that accusation, referring to the money acquired, administered, and disposed of from the illegal sale of tobacco, attributed to the defendant before January 10, 2002, is atypical. In this condition is the period starting in the year 2000 and up to that date, since he was never accused that this money came from crimes related to drugs or narcotics, the only crimes that, at that time, could form the basis of money laundering, but rather the attribution is the activity of tobacco and its duty-free sale, which is what, definitively, must be evaluated in this case. As already stated, for the remaining crimes, the accused's brother was acquitted with finality, and the crime of possession of a single firearm without a permit is not an act suitable for generating money laundering (legitimación de capitales), even if it has a broad punitive range in the country of origin that would allow it to be considered a 'serious crime,' since it would lack a causal relationship with the obtaining of the money intended to be laundered. This, it is insisted, being a single weapon, since it could be different if alluding to an entire arsenal, which presupposes its subsequent commercialization, which goes beyond the factual hypothesis of this matter. Likewise, given that the last accredited facts occurred in 2007 (when he disposes of the assets), it is not possible to apply the later regulation to the defendant, that is, the reforms introduced by Law No. 8719 of March 4, 2009, which modified the content of numeral 69 of Law No. 8204, and which indicated that money laundering could come from any crime punishable by imprisonment of four years or more, regardless of whether that was, or not, the minimum threshold of the sanction, it being sufficient that it was within the punitive range, since that is a later, more harmful norm. In other words, the law applicable to the facts occurring after January 10, 2002 —all the remaining accused ones— is the one that expressly states that a 'serious crime' is one that has a minimum penalty of four years. Therefore, the statement contained in the trial court's sentence that " ...By virtue of the validity of the norms over time as provided in the Penal Code, the norm applicable to the facts under review is the one in force from the year two thousand two to the year two thousand four, that is, the one that links the assets being laundered with a serious crime, without a penalty being attached to that concept of seriousness " (cf. folio 935; emphasis supplied) is not acceptable because, although the applicable law was correctly selected, it was not analyzed in its entirety, that is, in relation to Article 1 of that same regulation, where the seriousness of the crime was indeed linked to a penalty amount that, even the legislator expressly established should be the minimum threshold of each criminal type. Having drawn the two previous conclusions, it must be added that the entire reasoning of the Court, considering tax evasion on cigarettes as the predicate crime (and not the weapon possession which, it is insisted, lacks a causal link to the matter at hand; nor the other acts for which the defendant's brother was prosecuted and acquitted) was based on: " ...being the crime of smuggling as indicated, whose maximum penalty is five years, it does meet the requirement of having a maximum penalty greater than four years." In the Court's opinion, the applicable rule in our legal system to comply with the Principle of Dual Criminality is Article 92 of Law No. 4755 of May 3, 1971, the Tax Code of Standards and Procedures, which penalizes an offense that corresponds to the crime attributed in the charges filed against [Name4] since the year (sic) that is, the money from the cigarette smuggling attributed to [Name4] originates from a serious crime that is also contemplated in the Costa Rican legal system; therefore, the defense counsel's argument that the Conventional Principle of Dual Criminality is not met is inadmissible. On the contrary, the Court considers it a duly proven fact that the money sent to the Bank of Costa Rica by [Name4] originated from a serious crime contemplated by the Costa Rican criminal system" (cfr. folio 936, emphasis supplied). Note how the trial judges themselves point out that [Name7]'s conduct in the United States has its equivalent in Costa Rican legislation in that crime, which has a maximum, not minimum, sentence exceeding five years, which would imply that the mentioned requirement is not met since, as will be stated, the abstract minimum sentence is less than four years, none of which was mentioned by the a quo. Nor did the trial court conduct any analysis of whether [Name7]'s act could be considered 'serious' under North American law, that is, whether it was punishable there with an abstract minimum sentence of four years, which was important for the purposes of the said dual criminality. It should be remembered that, due to the urgency of the national investigation, the derivative proceeding advanced more quickly than the base case, and as of the date of this decision, there is no official record that, in the United States of America, a sentence has been imposed on [Name7] for that act, for which it is also unknown whether it constitutes a 'serious crime' under the terms defined by our regulations. To resolve this issue, it is not sufficient to state that [Name7], the brother of the accused, while the national process was developing concurrently, specifically on July 16, 2012, was found guilty of the illegal possession—that is, without prior payment of taxes—of cigarettes in the United States, an occasion on which the Court of Appeals for the Second Circuit granted a government appeal against the ruling of Judge [Name14] of the District Court for the Eastern District, who, in turn, in January 2010, had dismissed the jury conviction that the former had received in May 2008. And it is not sufficient because the witnesses stated that a sentence has yet to be imposed. Although the judgment mentioned that: "The penalty to be imposed for this crime (...) as indicated by [Name15] could be up to 20 years in prison" (see folio 897), nothing was said about the minimum limits that this sanction, which has not yet been imposed, could have under that country's legislation, which is highly relevant, as will be seen. Nor was any evidence provided regarding the scope of the foreign law which, as determined by Article 30 of the Civil Code (applicable to this matter as provided by numeral 14 of that same regulation), which states: "He who bases his right on foreign laws must prove the existence of such laws," should have been done, as it involves foreign regulations that the party using them is responsible for proving, which, in this case, is the Costa Rican State through the prosecuting entity, given that the accused is protected by his constitutional presumption of innocence (Article 39 of the Magna Carta). Furthermore, if one analyzes the statement that served as the basis for that information to the Court, that is, the one given by [Name16] (see folios 850 to 855), an assistant attorney in the United States, it is found that she stated, specifically on this topic, the following: "I am an assistant attorney in the United States, I am responsible for representing the Government in civil and criminal cases (...) my position is similar to a prosecutor but at the federal level, we investigate federal crimes, the prosecutor is at the state level (...) Mr. [Name7] is accused of being part of this organization, in addition he committed violent crimes to help in this negotiation (...) the trial lasted (sic) until May 2008, the jury found him guilty of the conspiracy that was based on cigarette smuggling, also of possessing weapons, the other charges the jury found him not guilty, after the jury gave the verdict, in the American system (sic) the defendant can request that the charge be eliminated (...) the judge had dismissed the matter related to the conspiracy (sic), when the sentence was given the only thing left was the charge for carrying (...) Judge [Name14] eliminated (sic) the verdict saying he was not guilty of the smuggling conviction, the United States (sic) took this decision to a higher court, our procedures are carried out in the District Court, the appeal was in the Court of Appeals, in July of this year the Court of Appeals annulled (sic) the verdict of Judge [Name14] and the decision is obtained in the month of July 2012, the charges against him for smuggling were reinstated, a new sentence has not yet been given, but he is going to receive this sentence for the acts of smuggling, this judge's decision establishes [Name7] as guilty of the crime of smuggling, this decision confirmed (sic) the jury's decision, there is no new trial, what the jury established in May 2008 is simply reinstated, the sentence has not yet been issued, what he faces is a sentence of up to twenty years in prison (...) In fact, this case is not in New York City, in federal law there is a law referring to smuggling, it is the CCTA Law, under federal law it is a crime to possess cigarettes that do not pay taxes, at the time of the case it was possessing more than 360,000 cigarettes, not paying the taxes on the cigarettes makes it illegal to possess them, the possession of cigarettes that have not paid the tax is smuggling, the act of smuggling is up to 5 years, but in the case of Mr. [Name7] he was accused (sic) of extortion and part of the extortion was smuggling, in the pending crime the sentence will be for extortion, they are called acts that refer to the crime (...) the crimes where the jury declared (sic) [Name7] innocent, these causes can no longer be appealed, but I believe that Judge [Name14] would consider theft and murder as part of the conspiracy, there are laws in the United States and New York for tax evasion" (emphasis supplied). That is, the witness started from her own speculation and did not state, as no one inquired about the matter, the punitive limits of the crime of smuggling, mentioning, based on her position within that country's criminal process, two very different punitive amounts: five and up to twenty years, but without indicating the abstract minimum provided in the norm, which is what our norm requires, and alluding to facts for which the accused was acquitted as if he had been convicted, aspects that not only affect her credibility but also make it impossible to use her testimony to prove what is lacking in our setting, since the principle of res judicata would be violated. Indeed, if it is valid in the United States of America to use the circumstances of a person's acquittal as relevant facts to impose a penalty for another crime, the same cannot be said in Costa Rica, where numeral 8.4 of the American Convention on Human Rights (not signed by that country) states: "An accused person acquitted by a non-appealable judgment shall not be subjected to a new trial for the same facts," such that the amount of the abstract penalty to be imposed could not consider aggravating factors derived from conduct for which he was acquitted. In any case, the reference made by the judges, as already stated, was only to whether the equivalent act in Costa Rica was a serious crime, and they assumed it was, alluding to a maximum penalty of five years. However, that fact, underlined above in the transcription, seems to be due to an error by the lower court, since Article 92 of the Tax Code of Standards and Procedures (amended by numeral 2 of Law No. 7900 of August 3, 1999, and before the reform by Article 1 of Law No. 9069 of September 10, 2012, "Ley de Fortalecimiento de la Gestión Tributaria," which is later and more detrimental), stated: Article 92.- Inducing error in the Tax Administration. When the amount of the defrauded sum exceeds two hundred base salaries, whoever induces error in the Tax Administration, through simulation of data, deformation or concealment of true information, or any other form of deception suitable for inducing error, with the purpose of obtaining, for oneself or for a third party, a financial benefit, an exemption, or a refund to the detriment of the Public Treasury, shall be sanctioned with prison from five to ten years. For the purposes of the provisions in the preceding paragraph, it must be understood that: a) The defrauded sum shall not include interest, fines, or punitive surcharges. b) To determine the mentioned sum, in the case of taxes with an annual period, the defrauded quota for that period shall be considered; for taxes with periods of less than twelve months, the defrauded sums during the period between January 1 and December 31 of the same year shall be added. For other taxes, the amount shall be understood to refer to each of the concepts for which a taxable event is susceptible to determination. The fact that the subject repairs their non-compliance, without any request or action by the Tax Administration to obtain the repair, shall be considered an absolute legal excuse. For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action carried out upon notification to the taxpayer, leading to verifying compliance with the tax obligations related to the tax and period in question" (emphasis supplied). That is, that regulation did contemplate, as a minimum penalty, five years of prison, which denotes an error in the reasoning transcribed in the trial court's judgment (since that amount is mentioned as a maximum penalty), but also an omission since, as the appellant rightly points out, not only is there no reasoning but, worse still, no evidence whatsoever, neither expert nor of any other kind, referring to what the amount left unpaid to the Government of the United States in taxes was, which is the only illicit aspect of that money (and not the totality of the income arising from the sales of the cigarettes), without it being possible to presume (against the principle of innocence) that it constitutes all the transferred money, since the sale of tobacco or cigarettes, like any commercial activity, generates some profit, once taxes are paid, in addition to the fact that, as was established with the same statement from D (see folio 854) and from E (folio 872), the money transferred by [Name7] also came from various other activities he had in that country. Having reached this point, it is necessary to point out how controversial it is in comparative law to consider tax evasion as a predicate offense. To this effect, it has been stated: "The fiscal voracity of developed States, especially European ones, has imposed a gradual and perverse shift in the crime of money laundering from its original strict meaning, that is, from the intent to criminally prosecute the legitimization of assets originating from certain criminal activities—drug trafficking, corruption, and organized crime, above all—to serving as an instrument of fiscal control and collection (...) the point has been reached of admitting that for the crime of money laundering to be committed, it is enough that the assets originate from any crime—which does not even have to be serious— (...) and, furthermore, that it is not necessary for the assets to come from a prior criminal activity that acts as the cause or source of their acquisition, but rather it is enough that they have not been subject to the corresponding taxation to be able to subject them to the criminal regime of money laundering. This way of understanding the crime (...) is politically and criminally incoherent and technically inconsistent, since (...) it not only ignores the criminal-political reason for being of these crimes and turns a large part of the population into money-laundering criminals, thus confirming, indeed, the preventive ineffectiveness of these criminal types, but also, it is based on a contra legem interpretation of the typical requirement that the crimes subject to laundering have a criminal origin (...) The technical and criminal-political basis of money laundering types is that the typical element 'assets originating from a crime' (...) means that the cause of obtaining the assets is a prior crime, that is, prior to their acquisition and that, therefore, laundering does not target assets that, once lawfully obtained, are simply withdrawn from compliance with their tax obligations, because these assets do not 'originate from a crime' and, furthermore, are usually patrimonially indistinguishable from those that have been subject to taxation. What is technically and criminal-politically decisive for the typicality of laundering is, therefore, that the origin of the assets, that is, the cause of their acquisition, are base crimes—drug trafficking, bribery, kidnapping…— different from tax fraud, because tax fraud in itself does not generate the assets, it is not the origin of the assets, but rather simply hides lawfully obtained assets from the Public Treasury" (Cfr. [Name1], . Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal No. 91, 2007, pp. 72 and 74. Also at the following electronic address of the Universidad Externado de Colombia: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98). This discussion is captured by national doctrine in the following terms: "...the legislations of some countries like Spain [In Spain, the 2010 law (...) expressly admits that the defrauded tax quota can constitute the material object of money laundering] and Germany expressly declare that profits generated by a tax crime can be a predicate offense for the crime of money laundering. In France, Belgium, and Italy, it has been case law that has stated that a tax crime can be a predicate offense for laundering. In Switzerland, it has been doctrine (...) Part of the Spanish doctrine [Gómez [Name17] (...) (...) ] believes that the crime of tax fraud cannot be a predicate offense for the crime of capital legitimization, because the quota to be paid for taxes does not originate nor have its origin in a crime, but rather the taxes were lawfully acquired by the perpetrator (...) He adds [Name18] that the crime of tax fraud is a crime of omission, and that crimes of omission cannot be predicate offenses (...) because a causal relationship cannot be established between the omitted action (the payment of taxes) and the assets already incorporated into the subject's patrimony by virtue of a prior act not constituting a crime. According to this author, one could not resort to hypothetical causality in the sense of considering a part of the patrimony illicit due to the circumstance that, had the due action been performed (the payment of taxes), the part of the patrimony allocated to fulfilling the obligation would not form part of the active subject's patrimony.

According to this thesis, the gain <span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(sic) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">from a lawful activity does not become unlawful by the sole circumstance that taxes are not paid on it</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> or because it is concealed to avoid paying taxes</span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101"> (...) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">Article 174 of the Russian Penal Code (in force since 1996), based on the thesis that the taxpayer has </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">earned their resources lawfully, considers that there is no money laundering in the event that the prior act is a tax fraud, because there are no resources derived from a crime" </span><span style="font-family:Arial; color:#010101">(CASTILLO [Nombre5] , . </span><span style="font-family:Arial; font-style:italic; color:#010101">El delito de legitimación de capitales</span><span style="font-family:Arial; color:#010101">. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 83-85; emphasis supplied). The latter author addresses the topic, for national legislation, considering that a distinction must be made between tax fraud and withholding of taxes collected and not delivered to the Treasury, but concludes by stating: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">"The amount of defrauded taxes is a sum of money that is a proportion applied to the taxable base (levy). It is true that the agent, as a product of their fraud, does not receive anything, but rather fails to pay the corresponding tax quota. But this tax quota not paid by virtue of the tax fraud, which is measured in money, is a suitable object for the crime of laundering"</span><span style="font-family:Arial; color:#010101"> (CASTILLO [Nombre5] , . </span><span style="font-family:Arial; font-style:italic; color:#010101">El delito de legitimación de capitales</span><span style="font-family:Arial; color:#010101">. Editorial Jurídica Continental, San José, 2012, 1st edition, p. 87). From these positions, it is evident that the solution is, then, not settled and was absolutely circumvented in the lower court's ruling, despite the fact that the national typical formula is very similar to those commented on by foreign authors when it provides that the assets "...</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#010101">originate</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> from a serious crime"</span><span style="font-family:Arial; color:#010101"> without, then, the obtainment of the assets having been the tax crime, but rather the activity of selling tobacco, although the profits from it may have been magnified by the non-payment of those taxes, which is a different matter. Despite the foregoing, even if it were accepted that a tax crime could be a 'prior act' for money laundering, it would always be necessary not only that the tax crime has, in Costa Rica, a minimum abstract penalty of [Nombre7] four years (according to the legislation we are applying, which is not the same as that commented on by the Costa Rican professor) but that, in such a scenario, </span><span style="font-family:Arial; font-weight:bold; color:#010101">it be specified whether the tax quota, left unpaid</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">in each fiscal period</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">, exceeds the amount of base salaries that make that penalty possible.</span><span style="font-family:Arial; color:#010101"> In the view of this Court, without entirely discarding the astute dogmatic objections referred to above, what prior tax crimes pose as a basis for money laundering are other issues: on the one hand, of an evidentiary nature, to distinguish the net flow of transmitted capital, mostly coming from a lawful activity, from the unlawful quota that should have been paid in taxes, a distinction that was not made in this case, and, on the other, regarding the way in which the intent (dolo) of the active subject is reconstructed, </span><span style="font-family:Arial; font-style:italic; color:#010101">a posteriori</span><span style="font-family:Arial; color:#010101">, given the general lawful activity that originates the capital on which taxes were not paid: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">"The problem </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> is not so much the origin or the criminal provenance of the assets, as the difficulty of specifying and individualizing them in the taxpayer's estate (something that in principle will occur in all cases in which what is obtained is money, the fungible good par excellence). The taxpayer responds for the tax debt with all the assets of their estate (the same as in punishable insolvencies), but it is practically impossible to determine which assets are the ones that become contaminated. What is not admissible is the theory of total contagion, according to which the entire estate of the taxpayer becomes contaminated. That would be excessive and disproportionate. Anyone who did business with them would be committing a crime of money laundering, if all its elements were present, especially the subjective ones (knowledge of the origin, or recklessness at the time of receipt). In every causal relationship, it is necessary that the cause precede the result; in this case, it is required that the tax crime precedes in time the tax quota that constitutes the material object of the money laundering crime. There is no problem when the moment of commission of the crime that generates the laundered assets can be determined with certainty; for example, if it concerns drug trafficking in which the moment of the sale and the amount obtained can be determined. Now then, the tax crime presents some peculiarities that can generate practical difficulties of difficult solution. The moment of contamination of the assets making up the defrauded tax quota will occur </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">when the administrative deadlines established for declaring them to the Tax Administration expire</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. Until these periods end, there is a period of time during which it is not possible to determine whether it exists or not. Thus indicates [Nombre19] , , “Lavado de dinero y delito fiscal. Posibilidad de que delito fiscal sea el delito precedente al de blanqueo”, La Ley: Revista jurídica española de doctrina, jurisprudencia y bibliografía, No. 5, 2005, pp. 1402-1410. In the same sense, [Nombre20] , Blanqueo de capitales, cit., pg. 163 (…) [Nombre21]”, cit., nm. 28. Thus [Nombre22] , “Delito fiscal y blanqueo: dos sanciones para una actuación”, cit., pg. 5.</span><span style="line-height:150%; font-family:Arial; font-size:11pt">" </span><span style="font-family:Arial">(Cfr. [Nombre23] , . </span><span style="font-family:Arial; font-style:italic">El delito fiscal como actividad delictiva previa del blanqueo de capitales</span><span style="font-family:Arial">. In: Revista Electrónica de Ciencia Penal y Criminológica. 13-01 , 2011. Also on the following website: http://criminet.ugr.es/recpc/13/recpc13-01.pdf).</span><span style="font-family:Arial; color:#010101"> In this matter, it has already been stated that there was no evidence establishing the specific years in which each sum of money was produced and in which the tax payment was omitted, which was necessary because our criminal statute refers to base salaries, which change annually, and, therefore, it was necessary to determine the year of each cash flow and what part of it was exclusively from the evasion (that is, excluding the lawful profits), to make the parallel typical classification, something that was neither carried out in the lower court's judgment nor, even worse, proven. Furthermore, the Court took all the money brought into the country, without making any division by period, which meant it accounted for amounts brought in when that conduct was not a crime, that is, before 2002, as it stated: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">"...</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">the money sent by [Nombre4] </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">since the year two thousand </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">to his accounts in the Banco de Costa Rica and in August 2004 to the account in that same bank of the accused [Nombre7] was the product of the sale of tax-free cigarettes, which is a federal crime in that country" </span><span style="font-family:Arial">(cfr. folio 936). In another turn, it was first necessary to separate what was brought in before January 10, 2002, since all that money could not be considered the product of money laundering, even if it originated from a crime, considering that, until that date in our country, only assets, in a broad sense, derived from drug trafficking could be typical of that conduct, and it has already been seen that this was not the case. Then, from all the money brought in starting in 2002, it had to be established how much came in each annual period, as this was necessary for the purposes of determining the annual changes in amount </span><span style="font-family:Arial; color:#010101">to make the typical classification for that crime, in the event it exceeded the referred-to base salaries </span><span style="font-family:Arial">and, finally, to credit, undoubtedly, the proportion of those funds that was the product of tax evasion, and which was not, to see if the former exceeded the Costa Rican statutory requirement that they amount to a certain sum, given that </span><span style="font-family:Arial; font-weight:bold">it was only that proportion that allowed for the typical classification to be made</span><span style="font-family:Arial">. None of that was elaborated upon in the judgment, and, much less, is there evidence </span><span style="font-family:Arial; color:#010101">of the amount left unpaid in taxes: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">“…the tax crime differs considerably from other prior crimes of laundering (for example, drug trafficking). Its peculiarities will require very intense evidentiary activity, so that the existence of an unpaid tax quota that exceeds the amount established in the Penal Code can be affirmed. Unlike what case law considers regarding drug trafficking crimes, in the tax crime, it will indeed be necessary to prove the specific criminal act that generates the laundered assets. And this is because the commission of a tax crime requires specifically proving several typical elements of a temporal and personal character. Let us remember that the existence of the defrauded tax quota must be verified within strictly set temporal deadlines </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> Crediting these temporal periods is essential for the existence of the tax crime. And to do so clearly because, as we know, the amount must be determined in attention to each tax and taxable period, without being able to sum the different amounts, below the minimum </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(…)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> to turn into a crime what are merely administrative infractions…”</span><span style="font-family:Arial; color:#010101"> (Cfr. [Nombre23] , . </span><span style="font-family:Arial; font-style:italic; color:#010101">El delito de blanqueo de capitales. </span><span style="font-family:Arial; color:#010101">Aranzadi, Spain, 2012, pp. 426-427). But, as if the foregoing were not enough, it turns out that, as the appellants correctly point out, it was not considered that it was not that law that allowed for dual criminality (doble incriminación) to be made. The </span><span style="font-family:Arial">Código de Normas y Procedimientos Tributarios, in its Article 1, states: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">"Scope of application. The provisions of this Code are applicable </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">to all taxes (tributos)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> and the legal relationships derived from them, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">except as regulated by special legislation</span><span style="font-family:Arial">" (emphasis supplied). The prior acts attributed to [Nombre7], in the United States, allude to smuggling (contrabando), that is, having come into illicit possession of cigarettes, without paying the prior taxes. The lower court's judgment states in this regard: " </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">In the year 2000, the District Attorney's Office for the Eastern District of New York initiated a formal investigation against [Nombre4], for violations of the Racketeer Influenced and Corrupt Organizations Act (Ley RICO), based on an illegal sale of cigarettes, which were sold </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">without the prior payment</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> of taxes</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> [Nombre7] is being prosecuted for violations of the Racketeer Influenced and Corrupt Organizations Act (Ley Rico), arising from his control over a tax-free cigarette distribution business, which operates on an indigenous reservation located </span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">a</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">t the Poospatuck Reservation, in the City of Mastic, State of New York. At that location, the company [Nombre8] is situated, which sells large volumes of tax-free cigarettes, nationally and through the website </span><a href="http://www.smokersden.com" style="text-decoration:none"><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#0000ff">www.smokersden.com</span></a><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. It is also indicated how the indigenous reservation is home to the Unkechaug Tribe, recognized by the State of New York, although not by the Federal Government, and since [Nombre7] is the wife of [Nombre4], an American indigenous member of the Unkechaug Tribe, and living on the Reservation […], she has the right to operate the cigarette store within the Reservation, but not [Nombre7]</span><span style="line-height:150%; font-family:Arial; font-size:11pt"> (...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> This information, moreover, is cross-referenced and coincides with the document identified as “Introduction of all charges” </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">In said document, the Federal Government establishes how [Nombre8] was a company formed under the laws of the State of New York, with a principal place located at [Dirección1]</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, Mastic, New York, and was a business that sold cartons and packs of cigarettes that do not show evidence of the payment of taxes and levies applied by the State of New York; it also operated through the website smokersden.com, the foregoing coinciding with the information provided by the United States Department of Justice to the Government of Costa Rica</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> the significance of [Nombre8] with regard to the criminal activity of [Nombre7]. Thus, the witness [Nombre24] indicated that [Nombre8] was a company dedicated to the sale of tax-free cigarettes, an exemption from the payment of taxes that had as a limitation that the cigarettes could only be sold within the reservation, to indigenous subjects, for their personal consumption, and not for resale. Furthermore, the company could only be operated by an indigenous person, with [Nombre7], wife of [Nombre4], a member of that indigenous community, thus being the person authorized for the sale of cigarettes. For his part, the witness [Nombre25], declared how </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> on behalf of the City, he filed a civil claim against [Nombre4] and [Nombre7], because the store [Nombre8] sold cigarettes that </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">had not paid state taxes</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, which is why they were very cheap cigarettes, to the point that people came from New York City (</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">125 miles from the reservation</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">)</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, bought the tax-free cigarettes, loaded them into their vehicles and took them back to New York, to later resell them in grocery stores, which generated significant losses for the City from the taxes not collected. He also explained how </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> [Nombre7]'s business was advertised on the internet, through newspapers, and shipments of cigarettes were made by mail, where even from the monitoring carried out on the company, it is determined how [Nombre8] bought millions of cartons of cigarettes per year, which </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">had </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">not</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> paid</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> taxes, and were resold under identical conditions, that is, without the payment of taxes required by the State</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> [Nombre8] was a company that sold that product without taxes, according to h</span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">im under the protection of a law that the Government issued —a non-existent law—, and where </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">the cartons of cigarettes were bought directly from the distributor without the tax stamp</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, then taken to the reservation, and were sold through [Nombre8] without the payment of taxes, an absolutely illegal sales activity under federal </span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">l</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">and state law, since the commercialization of that product, in any case, was not only within the reservation, or to the members of the indigenous community, but rather, and thus it is understood from the testimony of [Nombre25], it was a national sale</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">What was explained</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> by H, it will be seen, is endorsed in the ruling of the Court of Appeals</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, T</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">hus, for the Court of Appeals, the CCTA defines that any person who intentionally ships, transports, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">receives, possesses</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, sells, distributes, or buys contraband cigarettes violates the law. Contraband cigarettes are defined as a quantity greater than sixty thousand cigarettes that </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">lacks evidence of the payment of taxes</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. For its part, the New York Tax Law 471, analyzed by this Court, indicates that a tax must be paid on all cigarettes possessed for sale, and it must be assumed that all cigarettes within the State are subject to taxes. Also, the Court analyzes how, over the years, the State of New York has been involved in a dialogue with Native American indigenous retailers, and with the Federal Courts, regarding the possibilities of the State of New York to impose taxes on cigarette sales in reservations, which has generated significant conflicts; however, the immunity of the tribe prevented the State from suing Native Americans who refused to pay the tax, even when the State sought to adopt drastic measures to achieve the payment of taxes, such as </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">intercepting and seizing cigarette shipments destined for the indigenous reservations</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, the Native Americans resist, engaging in acts of violence and civil disturbances on the New York highways, which, and thus it is inferred from the entirety of this resolution, fostered a policy of tolerance regarding the payment of tax on cigarettes sold in the reservations; however, the Court of Appeals is clear and categorical in establishing that the regulation contained in New York Tax Law 471 always remained in force. For the Court, the policy of tolerance in no way signaled</span><span style="line-height:150%; font-family:Arial; font-size:11pt"> (sic)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> the State of New York's choice not to apply its tax laws, but rather presented a concession by the State, besieged before the difficult and dangerous application of state law, given the complex jurisdictional and political problems surrounding cigarette sales in reservations, and how volatile smuggling prosecutions would prove</span><span style="font-family:Arial"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">" </span><span style="font-family:Arial">(cfr. folios 888 and following). That is, he is not accused (only) of having sold cigarettes and not paying taxes on the sales, but of having obtained the cigarette shipments without having the stamp (prior to those sales) showing that, in turn, the distributors had paid the prior taxes. This means that, for dual criminality (doble incriminación), we are not talking about what in our system would be an evasion of the sales tax, but about the taking possession of the object, without the payment, prior to the subsequent sale, of taxes. It is the equivalent, in our environment, of </span><span style="font-family:Arial; font-weight:bold; color:#010101">import or customs duties</span><span style="font-family:Arial; color:#010101">.</span><span style="font-family:Arial"> That conduct is provided for, in Costa Rica, in a special law that, therefore, prevails over that general regulation, even if they concur with other fiscal transgressions referring to the sales tax. It concerns the Ley General de Aduanas </span><span style="font-family:Arial; color:#010101">No. 7557 of October 20, 1995 (published in La Gaceta 212 of November 08, 1995 and in force at the date of the accused acts) which establishes: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">"</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">ARTICLE 1.- Scope of application. This law </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">regulates the entries into and exits from</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, the national territory, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">of goods (mercancías)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, vehicles, and transport units; also the customs clearance and the facts and acts that derive from it or from the entries and exits, in accordance with community and international rules, whose application is the responsibility of the Servicio Nacional de Aduanas" </span><span style="font-family:Arial">(emphasis supplied), adding numeral 223: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">"Relationship with crimes typified in other tax regulations.</span> If the conduct classified in this law also constitutes a crime or a contravention established in tax legislation, the special provisions of this law shall apply, provided that such conduct is related to the breach of customs tax obligations or duties toward the customs authority" (emphasis added). This regulation established customs offenses: initially, from its entry into force in 1995 until 2003, and subsequently from that date, when a reform occurred, to the present. Since the defendant was improperly accused of having received money from his brother since 2002, which has already been stated to be atypical conduct since the capital arose from alleged crimes unrelated to drug trafficking, the legislative changes in customs law must again be taken into account. Thus, in 2002 and until 2003, the original General Customs Law (Ley General de Aduanas) was applicable, and from that date until 2007 (when the cycle of the charged acts ends), the currently valid regulations would govern. The first regulatory version (applicable for the period January 2002 – August 2003) stated: "ARTICLE 214.- Basic offense. Whoever, through simulation, maneuver, or any other form of deception, eludes or evades, in whole or in part, the payment of the customs tax obligation shall be punished with imprisonment of one to three years and a fine equivalent to twice the amount of the unpaid taxes, plus interest and surcharges, provided that the customs value of the goods exceeds five thousand Central American pesos. ARTICLE 215.- Specific cases of customs tax fraud. Whoever incurs the penalties indicated in the previous article, provided that the customs value of the goods exceeds five thousand Central American pesos: a) Whoever, without authorization from the competent body, gives a purpose different from that provided in the authorizing regulation to goods benefiting from exemption or franchise or that have entered free of taxes. b) Whoever, using or declaring false information, requests or obtains preferential customs treatment. c) Whoever, using or declaring false information, justifies the fulfillment of their duties, obligations, or requirements as a beneficiary or user of a customs regime or modality, to request or obtain preferential customs treatment. d) Whoever simulates, in whole or in part, an export or import operation of goods or alters the description of some, in order to illicitly obtain a customs incentive or an economic benefit. e) The official, public employee, or notary public who falsely certifies or records that a tax has been satisfied in whole or in part. ARTICLE 216.- Aggravating circumstances. The penalty shall be three to five years and a fine equivalent to three times the amount of the unpaid taxes, plus interest and surcharges, when, in any of the two previous articles, any of the following circumstances concur: a) Three or more persons participate in the act as perpetrators. b) A public official participates as a perpetrator, instigator, or accomplice, in the exercise of their functions, on the occasion of them, or by abusing their position" (the bold text is not part of the original). But Article 1 of Law No. 8373 of August 18, 2003, modified that regulation, so the law in force during the other period of the charged acts (August 2003 to 2007) read as follows: "Article 214.— Customs tax fraud. Whoever, using cunning, deceit, or trickery, simulation of false facts, or distortion or concealment of true facts, used to obtain a financial benefit for themselves or for a third party, eludes or evades, in whole or in part, the payment of taxes, shall be sanctioned with a fine of twice the amount of the unpaid taxes plus interest and a prison sentence, in accordance with the following: a) From six months to three years, when the amount of the unpaid taxes exceeds five thousand Central American pesos and does not exceed fifteen thousand Central American pesos. b) From one to five years, when the amount of the unpaid taxes exceeds fifteen thousand Central American pesos. The amount of the unpaid taxes shall be determined in court through expert assistance, in accordance with the applicable regulations. Article 216. —Aggravating circumstances. The penalty shall be five to nine years of imprisonment and a fine equivalent to twice the amount of the unpaid taxes plus interest, when in any of the circumstances set forth in Article 214 of this Law, at least one of the following conducts or situations concurs: a) Two or more persons participate in the criminal act as perpetrators. b) A public official or an auxiliary of the public customs function participates as a perpetrator, accomplice, or instigator in the exercise of their functions, on the occasion of them, or by abusing their position. c) Non-existent natural or legal persons are shown as recipients in the documents relating to the clearance of the goods. d) It is perpetrated, facilitated, or its discovery is avoided through the use of violence or intimidation. Article 220 bis. —Falsehood in the customs declaration and other customs-related crimes. Whoever commits the following shall be punished with imprisonment of two months to three years: a) Whoever introduces goods into the national customs territory by means of a false declaration related to the regime, classification, quality, value, weight, quantity, and/or measurement of such goods, or through a lower payment of taxes than legally required, or both. b) Whoever clandestinely brings in goods in transit, without paying the corresponding taxes. c) Whoever transports, stores, acquires, sells, donates, conceals, uses, gives or receives on deposit, destroys, or transforms goods introduced into the country evading customs control. d) Whoever substitutes goods from the customs warehouse, transport units, transient parking areas, or port zones." Note that under none of these laws, the former or the latter, and under none of the simple criminal modalities, would the requirement of the prior serious crime be met because, in our law, none of those conducts had, on the date of the charged acts, an abstract minimum penalty of four years. The only exception is the aggravated conduct provided for in numeral 216 of the last cited customs legislation, but the dual criminality framework could not be made under that criminal type because [Name7] was accused and sentenced for an individual activity, without it being proven that he acted jointly, with violence, or using non-existent legal entities. Rather, when he was so accused, he was definitively acquitted, this judgment being the only one with value, and in our legal system, dismissed conduct cannot be considered for the punitive purposes of other crimes. To continue with the chain of omissions, both evidentiary and analytical, the Trial Court also failed to consider, when analyzing the issue of dual criminality (even under the regulations it used), the statute of limitations for the criminal action in these crimes, which was necessary because, as previously noted, the validity of the criminal action is inherent to dual criminality: "In the opinion of a sector of the doctrine, the statute of limitations for the prior act from which the assets originate produces the rupture of the connection between the asset and the act that originates it. At the moment a crime can no longer be prosecuted due to its statute of limitations, all assets originating from it will be decontaminated. It is not reasonable, it is argued, to prolong the criminal origin beyond the period in which the crime is prosecutable. It is not correct to sanction a person for the laundering of assets from a crime already time-barred, whose perpetrators cannot be criminally sanctioned. Otherwise, a disproportionate extension of the time during which the assets have a contaminated character would occur, so that if no limit is set, such as the statute of limitations of the prior crime, they would continue to maintain that character indefinitely" (See [Name23], . The Crime of Money Laundering. Aranzadi, Spain, 2012, pp. 428-429). And, regarding this issue, the tax legislation has special norms, different from those of the rest of the ordinary procedural legislation. Thus, in the Code of Tax Norms and Procedures (Código de Normas y Procedimientos Tributarios) (legislation under which the Trial Court framed the dual criminality), the statute of limitations period for criminal action is set at three years in most cases and five years if the case is based on false data in tax returns, adding: "Article 52.- Computation of terms. The statute of limitations period shall be counted from January first of the calendar year following the one in which the tax must be paid. (...) Article 91.— Statute of limitations rules. The statute of limitations for tax crimes shall be governed by the general provisions of the Criminal Code and those of the Criminal Procedure Code. (Reformed by Law 7900 of August 3, 1999)” (emphasis not in original text). On the other hand, in the General Customs Law, the statute of limitations period for criminal action is four years, according to numeral 62. From this perspective, if [Name26] was detained on August 2, 2004, and is being attributed with sending money to [Name7] from long before (even if the latter used it later), the analysis of each cash flow and the annual evaded quota was essential, for purposes of both objective classification and the validity of the criminal action according to the computation of the statute of limitations periods, none of which was done in the trial court's ruling nor, because the annual accounting data is lacking, can be done now. It has also been stated that no evidence was provided regarding the legal rules of punishment, much less those of the statute of limitations, for that event in North America. That would be sufficient to, even under the first typical framework made by the Trial Court, which was said to be incorrect, resolve the merits of the issue, which, with greater reason, can be done with the other framework mentioned. In short, without conducting further analyses and even accepting the proven facts and the evidentiary and legal analysis conducted in the trial court's judgment (which, it is insisted, is not entirely accurate and, much less, complete), there would be no objective classification, and this implies that the appeals must be granted and the defendant acquitted from this venue, since a remand would lead nowhere, because the foregoing arises from a legal analysis and an absence of evidence that cannot be introduced at this procedural stage.

§3. Subjective elements of the crime: On the other hand, when numeral 69 of the Psychotropic Substances Law (Ley de Psicotrópicos), applicable to the facts, provided: "Whoever acquires, converts, or transfers assets of economic interest, knowing that these originate from a serious crime, or performs any other act to conceal or cover up the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts, shall be sanctioned with a prison sentence of eight to twenty years. b) Whoever conceals or covers up the true nature, origin, location, destination, movement, or rights over the assets or their ownership, knowing that they proceed, directly or indirectly, from a serious crime. The penalty shall be ten to twenty years of imprisonment when the assets of economic interest originate from any of the crimes related to illicit trafficking of narcotics, psychotropic substances, money laundering (legitimación de capitales), diversion of precursors or essential chemical substances, and related crimes" (emphasis supplied), it was demanding direct intent of the first degree. It is known that there are three types of intent: direct intent of the first degree; indirect or direct intent of the second degree, also known as necessary consequences intent, and eventual intent. In principle, any intentional act can be committed by any of these forms of intent, unless the legislation expressly establishes otherwise. Thus, the legislative use of the forms 'knowingly' (a sabiendas) or 'knowing' (sabiendo) implies that direct intent is required: "When the legislator uses expressions such as 'knowingly' (a sabiendas), it accentuates the cognitive side of intent and implies, with respect to the specific element for which it requires direct intent of the second degree (sic), a renunciation of punishment for eventual intent. Articles 69 of the Psychotropic Substances Law (...) require 'the knowledge' that the object of economic interest comes from a specific crime (...) It is sufficient that the agent knows the factual circumstances that characterize the prior act. It is not necessary that they know the particularities of the prior act…" (CASTILLO [Name5], . The Crime of Money Laundering. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 125-126, bold text supplied). In the opinion of the Court, there may be some confusion in the text transcribed above in the denomination of that emphasis on the 'knowledge' element (since it is indicated that it is a direct intent of the second degree, when it is of the first, because the second degree is the so-called 'intent of necessary consequences' where knowledge is not as important, but rather will predominates, cf. [Name27], . Intent. Editorial Juritexto. San José, 1999, pp. 268-270). Despite this terminological difference, we agree with said author, and with an important doctrinal sector cited in previous references, that the expression excludes other forms of intent (e.g., eventual intent) and admits only direct intent, which definitively is not a mere suspicion: "…the cognitive element of intent is not a mere suspicion about the concurrence of the objective elements of the crime, nor does it, at the opposite pole, require certainty in this regard (...) It is not, therefore, necessary to describe intent (...) to resort to statements incompatible with legal certainty and with the criminal concept of intent, such as the very frequent one in doctrine and jurisprudence that it is sufficient to know that the assets 'proceed from a criminal activity in a generic way,' as if our criminal law were based on the perpetrator and not on the act (...) intent in the crime of money laundering always targets crimes and not generic criminal activities" (Cf. [Name1], . Technical and Criminal Policy Reflections on the Crime of Money Laundering. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the following website: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pp. 76-77). With this warning, the doctrine indicates that, being a normative element, that intent has two substrates, one factual and one evaluative: "The factual substrate is composed of the facts constituting a criminal activity. The perpetrator must know those factual circumstances perceivable by the senses, which must serve as a basis for evaluating their criminal nature. It involves, as with the descriptive elements of the crime, knowledge of the factual circumstances (...) The perpetrator of the money laundering crime must proceed to an evaluation of the facts they have perceived. From such evaluation, it must be derived that such facts constitute criminal conduct" (Cf. [Name23], . The Crime of Money Laundering. Aranzadi, Spain, 2012, pp. 660-661). This is important because, from the factual substrate, the activity carried out by [Name7] in the United States, selling tax-free tobacco to non-indigenous people, was done publicly, advertised through an internet page, with deliveries to various parts of the Union through that country's postal service, there were multiple businesses of the same type on the same indigenous reservation, and no person had even been prosecuted for such activity, as unanimously derived from the oral evidence received at trial. Ergo, from the factual substrate, [Name7], who had gone to work with [Name7] in that business, had no element even to doubt that a criminal activity was being carried out, especially since the remittances were sent through banks, both from the United States and a state bank in Costa Rica, which imply significant controls to prevent the movement of illicit money. From the evaluative substrate, no additional data arises either, because if the original activity was apparently lawful, there was no reason to question its unlawfulness. Furthermore, the doctrine insists that this intent must exist at the moment of acquiring the asset, that is, it must be current, and it is not sufficient that it exists at other times: "The perpetrator must know the origin of the object at the moment of obtaining it. Subsequent knowledge ('dolus subsequens') is not criminally relevant ('dolus subsequens non nocet') nor does it create a position of guarantor, according to Article 18 of the Criminal Code. The acquisition of the object without knowing its illicit origin implies an acquisition of possession in good faith, which excludes the crime of money laundering (...) they are not permanent crimes" (CASTILLO [Name5], . The Crime of Money Laundering. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 125-126, bold text supplied). "The intent must be antecedent or concurrent with the action. Subsequent intent is irrelevant..." (CALDERÓN [Name28], . The Legal Framework of Money Laundering: Criminal and Administrative Aspects. At the following electronic address: http://www.datadiar.com/actual/novedades_05/penal/blanqueo/d_may_02c.htm). "Intent must exist during the performance of the conduct, that is, during its execution. Therefore, dolus antecedents, i.e., intent prior to the commission, is not sufficient (...) like dolus antecedents, it is accepted that dolus subsequens or intent after the fact is not intent in the sense of Criminal Law. From the requirement that the knowledge corresponding to intent be current, it follows that knowledge subsequent to the performance of the conduct has no criminal-legal consequence (...) This is a mention expressly included in the Vienna Convention of 1988, which, in its Article 3.c).i), refers to 'the acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offense or offenses established...' The same reference is contained in the Palermo Conventions (Art. 6.1.b.i) (...) It is irrelevant from a criminal point of view if knowledge of the criminal origin of the assets is obtained subsequent to the performance of the money laundering actions. The principle dolus superveniens non nocet is fully effective" (Cf. [Name23], . The Crime of Money Laundering. Aranzadi, Spain, 2012, pp. 662-663).

Therefore, it is not acceptable for the trial court to have stated: "</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">Although in the fifth fact of the accusation, the Public Prosecutor's Office includes the remission from the account of [Name8] from the United States of the sum of Sixteen million seven hundred ninety-three thousand nine hundred eighty dollars to the dollar savings account at the Banco de Costa Rica of [Name7]. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">These transfers</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> as can be seen in Appendix No. 4 of Report No. 212-DEF-R-140-11 from the Economic and Financial Crimes Section of the O.I.J., </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">began in October of the year two thousand and continued without any interruption throughout the years two thousand one, two thousand two, two thousand three until March 19, 2004</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">. It must be taken into account that, on that date, [Name4] had not been arrested in the United States on the charge of cigarette smuggling, and therefore </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">it could not be stated with certainty that his brother [Name7] knew of the unlawfulness of that business that generated—in its entirety—the funds remitted to Banco de Costa Rica</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">. Because knowledge of the illicit origin of the laundered funds is necessary for the purposes of the criminality of the offense, the Court must have considered that </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">knowledge in relation to those money transfers arises from the arrest of [Name4] in New York on August 2, 2004, and therefore</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> only one deposit, the one made on August sixth of that same year and received into the account of [Name7], can be considered </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">tainted</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> by knowledge of the unlawfulness of its origin</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">. It should be noted, as it is of interest at this point, that this last deposit has different conditions compared to all previous deposits that can be seen in Appendix 3 cited, namely: the amount of four million four hundred thousand dollars far exceeds the previous ones, whose figures usually range between two hundred and three hundred thousand dollars </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline\">—with the exception of a deposit made by the fund operator Lloyd for two million five hundred thousand dollars in November two thousand two—</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> and represents a quarter of all deposits made over three years and ten months in that savings account. It differs from the preceding deposits in that the money is not remitted by [Name8], but rather by TMG RAMSR Partners. The explanation for this change in the remitter arises from the timing of the deposit, four days after the unlawful nature of his business activity carried out through [Name8] becomes "official" with the arrest of [Name7]. However, the identity of [Name7] is also present in this deposit, since his initials RAMSr., which according to witness [Name25], [Name7] imposed on all his belongings and businesses so they would be identified with him, are in the name of the depositor, so it cannot be denied that its origin is related to [Name7] and his illicit activity, known at that time by the accused [Name7]. The Court also considers that </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">at the time of carrying out the redemption of the funds deposited by [Name7] in Banco de Costa Rica, ten days after the arrest of [Name7], the accused [Name7] knows the origin of the funds</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> and under such knowledge agrees to erase all trace of his brother's investments and banking activity in Banco de Costa Rica, since as indicated in Report No. 212-DEF-R-140-11 from the Economic and Financial Crimes Section of the O.I.J., and can be seen at</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> folio 356 verso of the principal case file, even the sum of five thousand eight hundred dollars deposited into an account of [Name7] were deposited, together with the fund for ten million three hundred fifty thousand two hundred forty-eight dollars into the savings account of [Name7] to subsequently constitute a new Growth Fund in dollars in the name of [Name7] at Banco de Costa Rica. To conclude then that all funds remitted by [Name7] to his account and</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> that constituted the monies of the Fund in whose redemption both [Name26] and [Name7] participated, and the four million four hundred thousand dollars that were remitted after the arrest of [Name7], came from the illicit cigarette smuggling activity of [Name7], </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">a situation that was known to [Name7] at the time of receiving and </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">maintaining in his account those funds and at the time of participating in the redemption</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> of the Growth Fund</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> in dollars at Banco de Costa Rica</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">" </span><span style=\"font-family:Arial\">(cf. folios 938-939, highlighting supplied). Note that although the trial judges initially stated that it could not be considered that the defendant knew that all the money he received from his brother, before his arrest in the United States, came from a crime, immediately afterwards they make the knowledge of intent (dolo) arise, no longer from the acquisition but from the maintenance, in his account, of those remittances, through the redemption of the Fund and in the subsequent investments, by which they mean that although the defendant, upon receiving the money, had no intent (knowledge of the predicate crime), he subsequently acquired such knowledge and it is, due to that supervening circumstance, that they make the reproach, said thus, retroactively, which is nothing but applying the concept of subsequent intent (dolo subsecuente) which, as stated above, is not acceptable. It is true that the article in question establishes: "</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">a) Whoever acquires, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">converts or transfers</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> assets of economic interest, knowing that they originate from a serious crime, or performs any other act to hide or conceal the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts. b) Whoever hides or conceals the true nature, origin, location, destination, movement or rights over assets or the property thereof, knowing that they proceed, directly or indirectly, from a serious crime..." </span><span style=\"font-family:Arial; color:#010101\">so it could be said that intent can be present at three moments: that of acquisition, that of conversion, and that of transfer, and that, in this matter, the trial judges considered that, for one sum, intent existed from the acquisition (since it was transferred after the arrest of [Name7]) and, for the remaining sums, from the conversion and transfer onwards. However, the actions cannot be artificially split because, as has been made clear by the cited doctrine, the international instruments from which those three moments arise are emphatic in requiring that </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101\">the knowledge of the active subject be present at the time of receiving the assets</span><span style=\"font-family:Arial; color:#010101\">, not at the remaining moments. </span><span style=\"font-family:Arial\">Thus, in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances </span><span style=\"font-family:Arial; font-style:italic\">(approved by the UN at the session held on December 19, 1988, in Vienna, Austria, and ratified by Costa Rica in 1990), Article 3.1.c.i provides: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">"Article 3 OFFENCES AND SANCTIONS. 1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: c) Subject to its constitutional principles and the fundamental concepts of its legal system: i) The acquisition, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">possession or use of property, knowing, at the time of receipt,</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> that such property was derived from any offence or offences established in accordance with subparagraph a) of this paragraph or from an act of participation in such offence or offences" </span><span style=\"font-family:Arial\">(highlighting supplied). In the same sense, the Palermo Convention states: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">"Article 6. Criminalization of the laundering of proceeds of crime 1. Each State Party shall adopt, in accordance with fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: b) Subject to the basic concepts of its legal system: i) The acquisition, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">possession or use of property, knowing, at the time of its receipt,</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> that such property is the proceeds of crime" </span><span style=\"font-family:Arial\">(bold supplied). It has already been said that this instrument is not applicable here, as it is a later law, but it is mentioned for the purpose of demonstrating how, despite being extremely broad in its regulations, it limits the intent, for subsequent possession, to that which was present at the time of receiving the good or object, so that both regulations become interpretative limits for the law enacted as a result of subscribing to that international obligation.</span><span style=\"font-family:Arial; color:#010101\"> Ergo, the three verbs allude to acts where there is initial intent at the receipt, without it being possible for an act carried out without intent, without knowledge or will to commit the objective elements of the offense, that is, in good faith, to later become an unlawful act simply by the passage of time since, in such cases, conversion and transfer are acts inherent in the exercise of the rights of ownership and possession (originally in good faith). In other words, it would be a legal absurdity to consider that if the person received in good faith, without intent, and later comes to know the illicit nature of the act from which the money came, they are required either to hand over the thing to the State or not to exercise any possessory act with it. Moreover, this would lead to making a differentiation (both for the purposes of the objective elements and intent, as well as for those of confiscation (comiso)) between the monies received by [Name7] before his brother's arrest (received without intent, and therefore, not constituting the criminal offense at hand) from that received afterward. That is, it would be necessary to establish the total amount received by the defendant. From this, subtract what was received before January 10, 2002 (when there was no objective criminality for the act). From what remains, subtract what was received before August 2, 2004 (date of [Name7]'s arrest in the United States, which the Court sets as the date from which intent arises), sums that were received without intent by the defendant and, therefore not susceptible, from the perspective of subjective criminality, to being criminal. From what remains, that is, approximately four million dollars, there should be extracted, for each annual period (for the purposes of double tax criminality), the unpaid taxes, since only this (and not the rest of the profit) is what would constitute the crime. For that resulting sum, it would have to be demonstrated in which periods it was obtained, to see if it is possible to align it with the objective elements in Costa Rica, obviously without taking into account interest or other gains generated in the country, but only the original resulting amount. None of that was done, and instead, the choice was made to refer, in bulk, to all the money, its interest, and other items, both for the purposes of the conviction and, subsequently, the generalized confiscation (comiso generalizado). To do the latter, the Court (ignoring the anachronism it incurs by pointing out that the paragraph it will apply, from Law Nº 8204, has its inspiration in numeral 6 of the Palermo Convention, see folio 940, when it has already been seen that the law applicable to this matter is that of 2002 and that this Convention, although adopted by the United Nations in the year 2000, was not ratified by the country until 2003) chooses to point out that it is not those first verbs that are applied but rather: "</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">The accused acts, in the Court's view, do not fit into the first part of the cited Article 69 "Whoever acquires, converts or transfers assets of economic interest </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">" but rather into the part that reads "or whoever performs any other act to conceal the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> (knowing that these originate from a serious crime)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">"</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> we will proceed to break down the criminal offense </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> with the intention of relating each part of the offense to the conduct of the accused and the circumstances of the case </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline\">Analysis of Objective Criminality. Article 69 first paragraph: "</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(...)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> whoever performs any</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> other act to conceal the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts." A.- Whoever performs any other act.- The verb that defines the typical action is to perform any other act, alluding to the fact that it is not about the </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">actions "acquire, convert or transfer" that precede this part of the first paragraph of Article 69. The Court opts for this verbal form because the conduct of Mr. [Name7], which has been deemed proven in the corresponding section of this judgment, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">is not contained in those verbal forms</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">, but rather is of a banking nature in some cases and in others are dispositive acts based on those monies received through transnational banking operations. The analysis of the acts performed must begin with the first ones that occurred chronologically. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">i.- </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; text-decoration:underline\">Receiving and maintaining</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> in his dollar account No. 230-0042636-9 at Banco de Costa Rica money coming from the illicit cigarette trade of [Name4] in the Indigenous Reserve […]. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">On August 6, 2004, a transfer was sent from the United States from TGM RAMSr Partners, for the sum of four million four hundred thousand dollars to the aforementioned account, and Mr. [Name7] </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">received and maintained them</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> deposited in his name, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">knowing</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> that they came from the criminal activity for which his brother had been arrested four days earlier in New York. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">ii.- The Redemption of the Growth Fund in Dollars and the subsequent operations. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">Five days after receiving the aforementioned deposit in the account of Mr. [Name7]</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">, that is, on August eleventh, two thousand four, [Name4] sends to "[Name29]" his trusted executive at Banco de Costa Rica, who turns out to be the defense witness [Name29], the document that can be seen at folio 28 of the Principal Case File, where he authorizes him to transfer all, in uppercase, bold and underlined, the funds from his investment account, and indicates that without </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">he has any doubt, communicate to the mobile phone of [Name7] whose number he includes in the communication. In this scant expression of will from [Name7], the urgency and imminent risk faced by the permanence of that money in his patrimony and without restrictions is evident, a situation to which his brother [Name7] responds efficiently, quickly, and faithfully, who a day later, on August twelfth, directs a communication to Mr. [Name29], who had managed until that moment the investments of [Name7] and his own at Banco de Costa Rica, for the redemption of those funds and their deposit into the dollar savings account of Mr. [Name7], which is scrupulously fulfilled by the Bank. Once the more than ten million dollars are deposited into his account, Mr. [Name7] constitutes another growth fund - this time in his own name - for the indicated sum, to which are added five thousand eight hundred dollars that still remained deposited in the savings account of [Name7] at Banco de Costa Rica, so that the design of [Name7] that no money remain in his name at Banco de Costa Rica and therefore be liable to be frozen by the federal authorities that had arrested him nine days earlier in New York is accomplished. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">iii.- Purchase of</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> properties and movable goods.- </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">In Dossier 1 of the evidence offered by the Public Prosecutor's Office, all the notarial and registry information concerning the transactions by virtue of which, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">from the year two thousand seven until November two thousand ten, Mr. [Name7] in his personal capacity or in the name of the company [Name7] del Caribe S.A. in which he had a majority participation, acquired movable and immovable property with the money</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> sent by [Name4] is included. The Report from the Economic and Financial Crimes Section of the O.I.J. No. 212-DEF-R-140-11, starting at folio 343 and up to folio 346 verso of the Principal File of this case, describes all the immovable property that were acquired by [Name7], who appears in his personal capacity and takes ownership of those properties, and in the section of the study dedicated to the company H, constituted by Mr. [Name7] and his wife [Name30], it is indicated that this company purchased five estates (fincas) in the Province of Limón. Regarding the value of those acquisitions, the referenced Expert Opinion records that the value of the immovable property amounts to the astronomical sum of one thousand nine hundred eighty-two million six hundred fifty-three thousand seven hundred</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> fifty-six colones. In relation to movable goods, their description and notarial and registry information can be seen in Evidence Dossier one and in the Report of the Economic and Financial Crimes Section, in Annexes No.1 and No. 2 the description of those goods is recorded and their value is set at the sum of one hundred sixty-five million seven hundred forty thousand colones, those of the first annex, and in the second annex concerning vessels, a value is recorded of Sixty-four million two hundred eighty thousand two hundred fifty-one colones, which total, two hundred thirty million twenty thousand two hundred fifty-one colones. It must be mentioned that the time in which the acquisition of immovable property is carried out, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">between 2007 and 2010</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">, is not casual, but must be related to the situation of the judicial process followed by the federal criminal authorities of the United States, because as stated by witness D, Federal Prosecutor in that case, the Trial against [Name7] began in the year two thousand seven, in October and extended until May 2008, and </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">the properties began to be purchased in July 2007</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">. The Court concludes from this temporal proximity between the trial and the acquisitions of immovable property that the change in the procedural situation of [Name7], which leads him to face a federal trial, imposes on him the need to not limit the concealment to banking operations but to diversify through real estate investment to distance the patrimony of [Name7] even further from its illicit origin. It is a laundering, - to put it some way - of a second degree, in which</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> the laundered money is converted into properties, with which the trace of the money is diluted, which is no longer only in Banco de Costa Rica but in various real estate investments" </span><span style=\"font-family:Arial\">(cf. folios 940 to 942; the bold does not belong to the original text). But, even if what is attributed to him is having maintained those monies in his possession, redeemed the funds, and then made the investments, it turns out that the intent had to be present at the time of receiving the money, since that is what is privileged, as has been indicated, by the different conventional instruments, even later ones with broader scope than the legislation applicable to this matter, even if it is not the acquisition that is being punished, but the subsequent acts. It is also evident that there is no proof whatsoever in the case file that allows establishing, neither in this venue nor through a remand, those items nor distinguishing them from the amounts received before double criminality existed (to also weigh the issue of the statute of limitations for criminal prosecution) so as to make a differentiation between one and the other, but rather this would require a new investigation or the production of new evidence, which, as will be stated, is not possible. Moreover, without dwelling on those evidentiary problems regarding the sum received by the defendant after his brother's arrest (from which, it is reiterated, it is not determined what amount of it, whether all or not, comes from tax evasion and which part comes from the lawful profits of such activity), it turns out that the construction of the</span><span style=\"font-family:Arial; color:#010101\"> knowledge of intent based on the fact of that arrest is also not something that this Chamber endorses. Note that the prior fact with a causal relationship (the sale of cigarettes; not the possession of a weapon, which has no relation to the capital nor the facts for which he was acquitted) was an element that was even widely discussed and controversial in the same North American justice system, to the point that a judge in that country dismissed the charges, citing the ambiguity of the laws applied and the possibility that [Name7] was unaware of the illicit nature of what he was doing. That is, the judge's annulment of charges was based on the possibility that [Name7] incurred what, in our system, would be the equivalent to an invincible mistake of prohibition (error de prohibición invencible).

Although that decision was later reversed by another robed [Nombre30] [Nombre30], it is important, for the purposes of the mistake of fact (error de tipo) alleged by the defense, in this specific case because... if in the eyes of a North American jurisdictional authority, with broad knowledge of that country's laws, it was reasonable for [Nombre7] to doubt the tax issue of the matter at hand (sale of cigarettes on the indigenous reservation to which his wife belonged)... is it not more valid that [Nombre7] himself doubted it, a man not versed in law, who had gone to the United States and worked at the commercial premises, which was open to the public and widely advertised in that country through mass media including the internet and whose tobacco cigarettes were sent using even that country's postal mail? Was it not more expectable that [Nombre7], who had been receiving money from his brother for more than four years (as of August 2, 2004), would doubt whether the provenance of that subsequent sum was lawful or not? It is true that, as the trial court judgment rightly states, citing a foreign author: </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">"</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">'</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">In any event, the use of the banking and financial system to recycle the profits obtained from various criminal activities has been a widespread and unpunished practice for many years, practically throughout the world. Starting from a certain complicity</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> of the financial system, that system has been used for the transformation of capital of illicit origin, coming from the commission of serious crimes, into money free of suspicion. Without a doubt, all of this would not have been possible if banking entities and financial intermediaries had exercised a little diligence and collaboration, detecting transactions of unclear origin. But some financial entities have decided to ignore the illicit origin of the capital, insofar as they obtained significant economic benefits. The free movement of capital in Europe forces the improvement of</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> inspections on said capital at its origin, without this intervention policy being able to be interpreted as an obstacle to its free movement. For this reason, successive directives have been approved regulating the banking, credit, and professional activities that affect the transformation of capital and goods.' [Nombre31] , , op. cit. p. 168. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">Contrary to the idea that exists in common knowledge, that</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> the remission of funds via banking channels inherently excludes</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> the crime of Money Laundering, as has happened in the case under examination, banking and financial entities can</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> be used</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> to legitimize capital</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">, such that they can actively contribute to</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> the production of the damaging results of this criminal activity in the socioeconomic order</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">" </span><span style=\"font-family:Arial\">(cf. folios 932-933, emphasis supplied). However, although the banking system can be and has been used in other cases and in different latitudes for the purposes of legitimization (legitimación), it is clear that this element must be weighed, together with others, to deduce criminal intent (dolo), since it is not the same who sends a transfer of money in secret ("in sacks", as the appellant states) compared to one who does so using banking institutions of two countries, both standing out, although one more than the other, for their not insignificant controls over monetary origins. Neither is the treatment that must be given to the evidence the same if the generating activity is illicit per se (goods obtained from drug trafficking, for example) as if it comes from tax evasion where there is a lawful origin of the money, although subsequently the payment of taxes is omitted. Therefore, if in the specific case, [Nombre7] had been transferring sums of money for years (sometimes several million dollars, as was reviewed above in a transfer for more than two million, before the four million dollar transfer that is of interest) using North American and national banks, to which he reported the origin of those monies to the point that, in Costa Rica, banking authorities went to visit the referred business, confirming its existence and the publicity of its actions, that is important to consider for the purposes of the criminal intent charged here... could his brother's arrest have changed his conception? In the opinion of this Chamber, no, because that arrest occurred attributing a series of charges to him (homicide, arson, extortion, weapon possession) that had no direct relationship with the origin of those monies. This on one hand but, on the other, as the appellants rightly state, for this type of relationship crimes it was necessary that, because a process had been initiated in that country, that process had concluded with a firm conviction to generate knowledge, which is not potential, probable, but must be certain and current. So, this Court asks... what would have happened if [Nombre7]'s trial had taken place in parallel, or immediately after, the moment when the North American judge [Nombre14] excluded the smuggling charges against [Nombre7] and before the Court of Appeals' decision? Had this been done, that element would have generated the reasonable probability of doubt in the criminal intent of the accused (encartado). Moreover... if [Nombre7] had been acquitted in the United States for those acts, could the judgment's affirmation be sustained that his arrest was enough for [Nombre7] to know the illicit nature of his acts? It is obvious that it could not. What is meant is that, depending on the stages of the North American process at which it had been conducted, the answer to the question about the criminal intent of the individual charged here would have been different, which is neither reasonable nor acceptable. It is not legitimate, consequently, to give a variable solution, according to the stages of a foreign process, to the same question (whether there is criminal intent of the accused). This makes the "inference" of criminal intent that the Court makes from a procedural act (the arrest of [Nombre7]) invalid when he was acquitted of the majority of the charges; convicted of one with no causal significance to the monetary flow and another whose case was widely discussed in that country, before jurisdictional authorities that, even, came to temporarily exonerate him of responsibility. Therefore, the claim of mistake formulated by the defense is valid when considering a joint series of situations: </span><span style=\"font-family:Arial; font-weight:bold\">a)-</span><span style=\"font-family:Arial\"> the transfer over years; </span><span style=\"font-family:Arial; font-weight:bold\">b)-</span><span style=\"font-family:Arial\"> the use of banking institutions of both countries; </span><span style=\"font-family:Arial; font-weight:bold\">[Nombre7])- </span><span style=\"font-family:Arial\">the declaration of the origin of the goods; </span><span style=\"font-family:Arial; font-weight:bold\">d)-</span><span style=\"font-family:Arial\"> the prior non-prosecution of any person for such acts in the United States, [Nombre7] being the first sentenced for such conduct; </span><span style=\"font-family:Arial; font-weight:bold\">e)-</span><span style=\"font-family:Arial\"> the public and publicized activity of his company; </span><span style=\"font-family:Arial; font-weight:bold\">f)-</span><span style=\"font-family:Arial\"> the type of business, sale of tobacco cigarettes, which is not an activity, per se, illicit. For this Court, based on all these elements, the </span><span style=\"font-family:Arial; color:#010101\">accused (encartado) [Nombre7] had no reason to know that the money came from a serious crime (which, as we have seen, it was not) and, even if his mistake were avoidable (vencible), there is no parallel regulation for negligent acts of that nature in our system, so that, it being, effectively, as the defense counsel points out, a mistake of fact (error de tipo) and not one of prohibition (error de prohibición), the exclusion of criminal intent made his conduct atypical: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">“The lack of knowledge or defective knowledge of some fact constituting the criminal offense excludes criminal intent, and gives rise to a mistake of fact. In the crime of money laundering, the exclusion of criminal intent can occur as a consequence of a lack of knowledge or a defective knowledge of the typical action or the material object </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">More problematic is the question relating to the lack of knowledge that falls on the material object, fundamentally because the criminal regulations relating to money laundering use normative elements in the offense description to describe the suitable objects </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> The doctrine does not consider it sufficient, for the purposes of typical criminal intent, to know the configuring data of the factual assumption of the normative element. It is required that the author makes a parallel valuation in the sphere of the profane that allows him to understand the content of the social meaning of the assumption” </span><span style=\"font-family:Arial; color:#010101\">(Cf. [Nombre23] , . </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">El delito de blanqueo de capitales. </span><span style=\"font-family:Arial; color:#010101\">Aranzadi, Spain, 2012, pp. 763 and 765). It must be clarified, on this topic, that the trial court assessed this claim as if it were a mistake of prohibition (error de prohibición), stating: "...</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">the technical defense of Mr. [Nombre7] argued that he acted under a mistake of prohibition because </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">he had no way of knowing that the money sent was related to an illicit activity</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">. The Court cannot admit this argument of the Defense because, in accordance with the provisions of article 35 of the Penal Code </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">the mistake of law supposes that the author of the conduct believes -by virtue of an invincible mistake (error invencible)- that</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic\"> the act he performs is not subject to penalty</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">. In this case, after the arrest of [Nombre7] in the United States, on August two, two thousand four, his brother [Nombre7] does not act -upon participating in the </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">redemption of the Fund</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> of Growth and the constitution of a new one in his name </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">and upon maintaining in his dollar savings accounts</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> sums of money in the millions of dollars- being a victim of an invincible mistake, because he knows that the diverse conduct that [Nombre7] had been developing -depositing the illicit monies from [Nombre8]'s account and</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\"> maintaining</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> the Growth fund in dollars in his name at the Banco de Costa Rica- changes as of August sixth and the only origin of the change is the arrest of [Nombre7] on various criminal charges, among which is cigarette smuggling, with which Mr. [Nombre7] acquires the certainty -which excludes the invincible mistake- that </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline\">all the money</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> remitted from New York, is linked to the illicit activity to the detriment of US justice and that the acts subsequent to that knowledge have the purpose of removing from possible immobilization and/or seizure by those authorities, the money coming from the alluded crime and that was not paid to the US treasury which stopped receiving millionaire sums for the taxes that were not collected by [Nombre7] in his business, as witnesses [Nombre8] and [Nombre16] said in the Trial. As a consequence of the reasoning set forth, it is concluded that Mr. [Nombre7] did not act under an invincible mistake in the terms of article 35 of the Penal Code- because the origin of the money is undoubtedly revealed as illicit, for Mr. [Nombre7], as of the arrest of [Nombre7] on August 2, 2004, in the United States" </span><span style=\"font-family:Arial\">(cf. folios 939-940, highlights supplied). It should be noted that, on one hand, reference is made, again, to a subsequent criminal intent: not for the reception but for maintaining the money and making the redemption of the Fund, which, additionally, had been nourished with monies that, we already said, did not arise from an activity that generated dual criminality (doble incriminación) until one date (2002) or the same lower court (a quo) affirmed were received without criminal intent until another date (August 2, 2004) and that, definitively, the tax quota left unpaid is not recorded. But, more importantly, the Court assumed that the claim concerned a mistake of prohibition, which is an erroneous reasoning because what was alleged was that [Nombre7] did not know that the monies came from a 'serious crime' and, this being a normative concept of the offense definition, lack of knowledge of an objective element of the offense description was being alleged and, therefore, the claim effectively corresponded to a mistake of fact, in which the consequences on the avoidability, or not, of the mistake, as we well know, are different. In any case, it is advisable to reiterate the position that this Chamber, with a partially similar composition to the current one (Chinchilla, [Nombre32] and [Nombre33]) has outlined in similar cases, where the criminal offense is constructed by the legislator with legal normative elements, cases in which it has been indicated: "</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">(1) On the nature of the mistake invoked. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">In principle, there is no major confusion when the mistake of fact is defined as that which falls on the objective elements of the criminal offense nor when referring to the mistake of prohibition as that which occurs both when the agent is unaware of the norm, considers it not in force or interprets it erroneously (direct) and when he is mistaken about the existence or limits of justifications (mistake of permission or indirect prohibition)</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...)</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">What is necessary, is to </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">determine the nature of the mistake involved when the criminal offense is constructed in such a way that, in its objective elements, it introduces terms such as "illicitly" "illegitimately" "illegally" "unlawfully", etc. because these terms become, then, normative elements of a legal character that, by integrating the criminal offense, would eventually make the mistake alleged about them be, no longer one of prohibition but of fact</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">. On this matter, the doctrine states: ¬"...it was [Nombre34] himself.</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">who realized the novelty that the normative elements of the offense 'discovered' by him posed in general terms; stated succinctly: despite being components of unlawfulness, as they do not cease to be elements of the offense, they would fall, for this author, under the rule of mistake on circumstances of the fact (...) that is, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">they would require -contrary to unlawfulness- to be encompassed by the criminal intent of the subject</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">, as they would form part of the factual assumption on which the value judgment of unlawfulness falls, so that the mistake over a normative element of the offense would be what we today call a mistake of fact, or if preferred, with more neutral terminology, a mistake excluding criminal intent." [Nombre35] And [Nombre36] , [Nombre37]. The mistake on normative elements of the criminal offense. La Ley, 1st edition, Madrid, 2008, p. 42. Thus understood, </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101\">the criminal intent of the active subject must also encompass that legal-normative element</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...)</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">If, as has been said, the vicissitudes of the permit are normative elements of the offense, mistakes about the scope of said permit constitute, therefore, mistakes of fact. That is, in this specific case, the active subject must know not only that he does not have a permit for carrying but, additionally, be clear that said permit is needed. Any false representation about the scope of those situations in which that permit is not necessary which is, precisely, what is posed in the specific case, means that one is facing a mistake of fact. Therefore, the mistake invoked in this case, is not a mistake of prohibition (which would imply the general lack of knowledge that carrying a weapon is a crime in Costa Rica, an issue that is not the one posed) but one of fact, that is, the false assumption alleged by the active subject that he did not require the permit because he was not carrying a weapon, but rather transporting it (as the gunsmith distinguished), and that to do the latter it was enough to fulfill the requirements established in the directive issued by the Ministry of Public Security, transcribed below." </span><span style=\"font-family:Arial; color:#010101\">Criminal Cassation Court, vote number 2010-641, highlights supplied. If in this matter it is alleged that the accused received the money without knowing that it came from a 'serious crime' and this is a legal-normative element of the criminal offense, the mistake alleged is of fact, and not of prohibition, the distinction being relevant because the avoidability (vencibilidad) of the mistake, in the first case, excludes the crime if there is no, as there is not in this matter, parallel negligent offense, while, in the second, it only reduces the penalty. Therefore, the arrest of [Nombre7] in the United States on August 2, 2004, the most it could produce was an alert about the possibility of the illicitness of the conduct from which the funds originated, a probability that does not have the firmness to be certainty, given the elements indicated above. But if, from what has been indicated so far, important doubts can be inferred regarding the configuration of a 'serious crime' (because, due to evidentiary issues, the amount of what was evaded in the United States regarding what was transferred is unknown; a financial analysis of what was received in each period was not performed and, due to the date of the acts, many of the monies transferred were transferred before the regulation applicable to this matter, plus the issue of dual criminality regarding the minimum penalty and the statute of limitations for the criminal action) as a preceding element and, moreover, there are broad and well-founded reasons for which to question the knowledge of that material object of the crime on the part of the accused here, it happens, as if that were not enough, that the analysis of the matter cannot be exhausted in such aspects, since the criminal offense so many times cited contains subjective elements different from criminal intent, which must be analyzed immediately. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; color:#010101\">§4. </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">Other subjective elements of the offense, different from criminal intent:</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; color:#010101\"> </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">"Alongside the cognitive element, there must exist in the crime of money laundering a will to hide or conceal the origin, location, etc. of the goods that the agent knows come from a crime. Whoever receives, transfers, converts objects that he knows come from a crime to hide or conceal their location, their destination, their ownership, etc. acts with the required danger criminal intent (dolo de peligro) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(...) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">Criminal intent must extend to the elements of the objective offense description</span><span style=\"font-family:Arial; color:#010101\">..." (CASTILLO [Nombre5] , . </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">El delito de legitimación de capitales</span><span style=\"font-family:Arial; color:#010101\">. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 127-128). Does that occur in the species? </span><span style=\"font-family:Arial\">While the money was received at the Banco de Costa Rica, it was declared that it came from that cigarette sale, to the point that the national banking authorities visited the company and gave a report on it. A record was kept of the fund transfers to [Nombre7]'s account and that he acquired properties or goods in his name or that of companies where he is the sole or majority partner. Even,</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> those assets were identified with a seal that [Nombre7] used and the people who worked for each business used a uniform with his logo, as related, in trial, by [Nombre38], [Nombre39] and [Nombre29] (see folios 861 to 870). [Nombre7], in the United States, declared the existence of such goods for the purposes of offering them as collateral as part of the bail for his freedom that he was requesting, as is also recorded in the documentary evidence coming from that country and in the statements of its government officials who testified in the hearing... therefore... is there a desire to hide? In the opinion of this Chamber, no, because the trail was easily verifiable, without the indicators that, certainly not in a necessary way, usually appear in these cases: </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">“…the usual way of proving that knowledge is circumstantial evidence </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt\">(…)</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\"> among which jurisprudence usually highlights a series of irregular or atypical acts in the usual financial or commercial operation, such as knowledge of the use of fictitious identities, the use of companies without capacity or without real economic activity, the inexistence of known economic activity, the unjustified patrimonial increase, etc. But all these indicators cannot do without that or those that demonstrate, even if via circumstantial evidence, the causal connection between the goods…”</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; color:#010101\">(Cf. [Nombre1] ,</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">. </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Technical and criminal policy reflections on the crime of money laundering</span><span style=\"font-family:Arial; color:#010101\">. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the website of the Universidad Externado de Colombia: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, p. 81). Therefore, this is an additional reason to accept the appeals and modify the judgment under appeal. </span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">§</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">6</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">. In summary</span><span style=\"font-family:Arial; color:#010101\">. The defensive argument is valid that in this case it did not involve money coming per se from an illicit activity, as would be the case with some prohibited object; the object (sale of cigarettes) was not, but, eventually, the non-payment of taxes was.

Nonetheless, in this matter a conviction is not possible because: 1) double criminality is not present, since when framed under national legislation, the acts committed by [Nombre7] (the material object from which they originated) had a minimum prescribed penalty of less than four years, which was the threshold in effect under the law applicable to this matter; 2) [Nombre7] has not yet been sentenced in the United States, so the specific penalty that may be imposed on him is unknown and whether it fits the national definition of 'serious crime' under the aforementioned applicable national law; 3) the amount of the tax quota left unpaid in each year, in which the criminal offense varies, was not individualized, and a cumulative calculation cannot be made; 4) the accused had no knowledge that the money came from a 'serious crime' because the source activity of the funds was lawful (sale of tobacco), even if the payment of taxes was not, an aspect for which there is no evidence that the accused knew; 5) nor was it his purpose to conceal the activity from which it came; 6) the issue of the statute of limitations for the criminal action in both countries was not analyzed based on the annual amounts received. In summary, despite the fact that the trial court's judgment is an important legal piece that, with care and thoroughness, addressed the matter before us, this Court does not agree with the conclusions reached, nor does it endorse the omission of aspects that are indispensable and affect the merits of the decision, without this detracting from its form, since the judgment does contain the reasoning required for its validity and such omissions arise from the prosecutorial investigation itself, which cannot be supplemented with new evidence and which mark the difference in criteria and outcome between that decision and this one. However, the objective effort of the Trial Court (to the point of rejecting prosecutorial claims and pointing out to that body its abuses, including the one regarding the police deployment for the arrest of the accused: see folio 970) is not in vain because, in addition to respecting the criteria set forth therein, it has allowed this Chamber to issue a ruling from this instance, without ordering any remand, given that the indicated errors and omissions cannot be remedied at the trial court level, as this would require new evidence or reopening the investigation, which is not possible in the face of an appeal filed (in those aspects) solely in favor of the accused (see Article 447 of the Code of Criminal Procedure) since this would violate the principle of prohibition of reformatio in pejus. Therefore, both appeals must be upheld in the aforementioned aspects and it is appropriate to partially revoke the conviction decreed in the case file, as well as the decision of asset forfeiture (comiso) and, in its place, to acquit [Nombre7] of all penalty and responsibility for the crime of money laundering (legitimación de capitales) for which he has been charged, ordering the full restitution of the seized, sequestered, or noted assets, over which their forfeiture is rejected; as well as his immediate freedom and the cessation of any precautionary measure issued against him, if another cause does not prevent it, and it is resolved without special ruling on costs.

IV.- […]The appeal is rejected. As already stated, for this Chamber what is appropriate is to acquit the accused of all penalty and responsibility for the acts for which he has been charged and, therefore, there is no legal basis to order the asset forfeiture (comiso) of the goods exempted from that measure by the a quo court; rather, said measure must be lifted over the goods for which it was ordered, as indicated in the previous section. Regarding the legal nature, characteristics, and principles governing the measure of asset forfeiture, this Chamber, under the name of Court of Criminal Cassation and with its current composition, has stated, for example in ruling number [Telf1]: " ... the first thing that must be done to determine the legal nature of asset forfeiture is to establish the characteristics, effects, and circumstances in which it proceeds. According to cited Article 110, asset forfeiture requires, for its appropriateness: C.1) that a crime (delito) is being investigated, not a fault or contravention, this because the provision begins by stating "Every crime (Todo delito)" and this expression, in a restrictive sense (Article 2 of the Code of Criminal Procedure) can only be understood as referring to acts classified as such by the legislator (Book II of the Penal Code or special laws) who made the distinction with faults that have a different location in the normative body (Book III); C.2) that this crime is intentional. The provision does not expressly indicate this, but it states that what is lost are the instruments with which the illicit act was committed and the things resulting from its execution. Authors on the subject have stated, in our view according to a restrictive interpretation consistent with the principle of legality, that the intentional nature of the measure is extracted from the provision of "instruments" contemplated by the law, since these: '...for the generality of doctrine are those that were 'intentionally' used to commit the crime (...) thereby excluding, of course, those (...) from a negligent crime' (CREUS, [Nombre7]. Derecho penal. Parte general. Editorial Astrea, 3rd edition, Buenos Aires, p. 519. In the same sense: [Nombre40], ; [Nombre41], ; and [Nombre42], . Manual de derecho penal. Parte general. Ediar, Buenos Aires, 1st edition, 2005, p. 734; [Nombre43], . El comiso: análisis sistemático e instrumentación cautelar. Editorial Universidad del Rosario, 1st edition, Bogotá, 2007, p. 59 and 64 and others cited in [Nombre44], . El comiso de bienes. IJSA, San José, 1st edition, 2006, pp. 70-73); C.3) it would be applicable, in principle, to any intentional crime, because it is an institute regulated in the general part of the Penal Code, which is characterized, precisely, by affecting the codified criminal offenses or those from special laws; C.4) it can affect third parties as long as they are made party to the proceeding. This is not established by the provision which, if interpreted in isolation, would lead to ignoring this requirement that arises from a systematic interpretation of the legal system and places Constitutional Law as what it is, the foundation of the rest of the normative hierarchy (see, in this regard, rulings number 712-2006 of the Third Chamber and 637-2010 of the Criminal Cassation Court of San José); C.5) asset forfeiture (comiso) does not affect the rights of the victim or third parties acting in good faith; rather, these prevail over the State's interest (in this sense, rulings of the Criminal Cassation Court of San José, numbers 2000-76, 2000-323, 2003-383 and 2004-101 and those of the Third Chamber, numbers 512-2001 and 1273-2005, among others); C.6) the effects arise from the crime, so it is normatively provided that asset forfeiture be ordered upon a conviction (Article 367 of the Code of Criminal Procedure). Must 'Crime' be understood as an act that is typical, unlawful, and culpable or as the abstract stipulation of illegality referred to by the legislator? National jurisprudence, in general terms, has understood it as a legislative provision, without a concrete declaration of responsibility, to the point that it has provided for the possibility of asset forfeiture with dismissals, prosecutorial filings, definitive dismissal rulings, even due to the statute of limitations for the criminal action, acquittals, with alternative measures such as conciliations, suspensions of the proceeding on probation, full reparation of the damage and payment of fines, among others (see the review of rulings made by [Nombre44], . El comiso de bienes. IJSA, San José, 1st edition, 2006, pp. 230-263); C.7) it lacks compensation, since it arises from a prior illegality, so it is an exception to the State's impossibility of assuming ownership of property without paying the value of the good (Article 45 of the Political Constitution); C.8) it is a public order measure, so no party instance is required but it can be ordered ex officio; C.9) as a measure arising from the State's power of imperium, it requires being provided for by law (Third Chamber, ruling number 1217-1999), to be issued in a reasoned or substantiated manner, and having prior demonstration of the link or nexus between the object and the criminal act, so it is not a strict liability matter (Third Chamber, ruling number 505-99); C.10) principles such as the presumption of innocence, due process, and the right of defense govern, so the burden of proof falls on the State; C.11) in Costa Rica, the asset forfeiture of goods used in the preparatory phase that does not become executive is not normatively regulated; C.12) the destination of the goods, once their ownership is obtained by the State, is expressly fixed by law (cf.: Law on the Distribution of Confiscated or Forfeited Goods, its regulations, and manual). D) Based on similar considerations in comparative law, attempts have been made to explain the figure under comment by indicating that it is an accessory penalty (pena accesoria), a security measure (medida de seguridad), a civil consequence of the crime (consecuencia civil del delito) or else a sui generis legal consequence (consecuencia jurídica sui géneris) of the crime (this includes those who consider it a third class of sanction in criminal law along with penalties and security measures but, in reality, it would be a fourth path, since reparation has already been accepted as the third). We will analyze each of these options: D.1) Asset forfeiture as an accessory penalty: It has been said that asset forfeiture is an accessory penalty (in this sense, rulings of the Criminal Cassation Court of Cartago, numbers 2010-236 and 2010-265). However, the main criticism that has been made against granting this legal nature is that asset forfeiture does not respond to the essential purpose of the sanction accepted by our constituent and legislator, which is positive special prevention or resocialization (Article 51 of the Penal Code and 5.6 of the American Convention on Human Rights) as it aligns more with retributive functions or negative general prevention (this is even accepted by the Criminal Cassation Court of Cartago in rulings numbers 2010-236 and 2010-265 when defining it as an accessory criminal sanction with a purpose of general prevention). From this perspective, asset forfeiture would also not respond to the principle of culpability which requires not only culpability to impose it (that is, it would not be possible to impose a sanction without culpability, so it could not be imposed in the absence of a principal penalty nor in cases where the perpetrator is not sanctioned, even if there was a criminal wrong) but also considers that this is gradable, which clashes with the rigid nature of the figure. Likewise, if it were a penalty, it would violate the principle referring to its highly personal nature since asset forfeiture is possible even against third parties, as long as they are given a hearing in the respective proceeding and the goods, with their consent, were used in the commission of crimes (...) Asset forfeiture is also not provided for, as an accessory penalty, in Article 50.2 of the Penal Code, which regulates as such only the special barring from office or profession (inhabilitación especial) defined in numeral 58 ibidem as the deprivation or restriction of one or more rights. This objection is both systematic (regarding the location of the figure) and in light of constitutional principles, since it would clash with the principle of legality by overextending the catalog of accessory penalties expressly contemplated by the Penal Code and the regulations specific to them. The difficulty could be overcome by stating that there is a prior law that provides for it for all crimes (Article 110 of the Penal Code); that there are other special laws that designate it as a penalty (for example the Wildlife Conservation Law) and that the figure contemplates the deprivation of a right: property. However, the same numeral 58 of the Penal Code states that accessory penalties provided for as such by the legislator have a term, which is the same as that of absolute barring and that ranges from 6 months to 12 years (Article 57), which is incompatible with the loss of ownership of the good, which is definitive. Likewise, against any penalty, principal or accessory, the possibility of filing a review exists, which the Constitutional Chamber has indicated is incompatible with the res judicata that derives from asset forfeiture (see ruling number [Telf2]). Finally, it should not be forgotten that according to Article 110 of the Penal Code: '...the weighting of the asset forfeiture will be made once the civil liabilities arising from the crime are satisfied (...) undoubtedly if the asset forfeiture maintained the character of a penalty, it would not be admissible for the imposition of the penalty to depend on the satisfaction of the civil liability.' [Nombre45], ; [Nombre46], ; and [Nombre47], . La responsabilidad civil ex delicto. Aranzadi, Navarra, 2002, pp. 45, 47. Therefore, either asset forfeiture is not an accessory penalty or, if it were, it would be unconstitutional for violating the cited precepts, so it is necessary to evaluate other possibilities. D.2) Asset forfeiture as a security measure: Based on those questions, doctrine indicated that, in reality, it was not that the measure was unconstitutional but that it should not be seen as a penalty and, when trying to give it an explanation, it was thought that its nature was that of a security measure, which overcame the objection that it responded to a principle of culpability since this escapes security measures whose basis is, rather, the dangerousness of the active subject. Asset forfeiture and security measures also had in common, furthermore, responding more to special prevention criteria assumed in international instruments than to those of general prevention. But criticism arose again. First, because dangerousness in security measures arises from the existence of a wrong that may not be present in asset forfeiture, which is based on a presumed objective dangerousness of the thing per se (in the case of instruments used for the commission of the crime and particularly for some types of them, such as weapons). Furthermore, because this explanation did not overcome the highly personal character that security measures also have and which escapes the figure of asset forfeiture (...) Furthermore, in Costa Rican criminal law, the Constitutional Chamber declared security measures for imputable persons unconstitutional, leaving only curative security measures (see Article 98 subsections 3, 4 and 5 and rulings numbers 88-92 and 1588-98 of the Constitutional Chamber) and asset forfeiture, most of the time, is attached to a declaration of sanction for imputable persons and is not mentioned as a security measure (Articles 101 and 102 of the Penal Code) which are also governed by the principle of criminal typicity and the prohibition of creation by analogy (Articles 97 and 2 of the Penal Code), in addition to the fact that they also have the possibility of cessation (Articles 100 of the Penal Code and 478 of the Code of Criminal Procedure) incompatible with asset forfeiture. Given this, another option was proposed. D.3) Asset forfeiture as a civil consequence or reparative measure derived from the crime: although the Constitutional Chamber has referred to the figure from this perspective (thus in ruling number [Telf2]: "asset forfeiture is one of the civil consequences of the punishable act, along with restitution and the reparation and compensation for damages and losses"), which has also been accepted by some cassation jurisprudence (see, for example and among others, ruling number 787-2006 of the Third Chamber), the truth is that, technically, asset forfeiture cannot be considered a civil consequence. First because, as stated, in Costa Rica it can be ordered ex officio, which is alien to the party disposition and congruence principle of civil law. Second, because it does not have a reparatory, restitutive, or compensatory character, to the point that Article 103 of the Penal Code lists it as alien to those purposes, which are typical of the civil consequences derived from crime. Third because "Civil liability ex delicto constitutes an issue of an essentially civil nature, regardless of whether it is examined in the criminal process, which explains why there is no obstacle to its knowledge being deferred, where appropriate, to the civil jurisdiction. And although the crime, regarding the birth of this liability, is a necessary prerequisite, it is not sufficient, since the production of damage is also required, an essential element for the birth of all civil liability, whether or not the act that caused it is typified in the Criminal Code" (CEREZO [Nombre48], . Análisis jurídico-penal de la figura del comiso. Editorial Comares, Granada, 2004, p. 29), without it being possible to file, in the civil venue, an isolated claim for asset forfeiture. Furthermore, because "Civil liability is transmitted to the heirs (...) but that cannot be sustained equally with respect to the heirs of the person responsible for the act. In cases of the death of the accused or defendant without the asset forfeiture having been decreed, it is not possible to apply..." (QUINTERO [Nombre49], ; [Nombre46], ; and [Nombre47], . La responsabilidad civil ex delictio. Aranzadi, Navarra, 2002, p. 46). To this, national doctrine adds that its effects are not of private law but in favor of the State, even though Costa Rica did not follow the recommendations discussed in the drafting of the Model Penal Code for Latin America and placed the figure within the civil consequences. This, as stated, does not affect its real legal nature and what can be derived is that the provision was erroneously located, without this affecting its effects, concluding that "asset forfeiture cannot be an effect of the civil liability ex delicto, in its essence it is not a civil sanction" (ABDELNOUR GRANADOS, Rosa María. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, p. 376). Based on these reflections, another possibility was proposed. D.4) asset forfeiture as a complex act, an accessory, legal, mixed, or sui generis consequence of the crime: There are consequences derived from the crime that are such by provision of law, without participating in the nature of those figures. In Costa Rican law, the issue of condemnation in costs to the losing party (Article 267 of the Code of Criminal Procedure); the publication of the judgment in crimes against honor (Article 155 of the Penal Code); the reconstruction, suppression, reform, restitution, or registry rectification derived from the falsity of public instruments (Article 483 of the Code of Criminal Procedure); the registration of certain types of resolutions (Articles 30 subsections j and k, 25 first paragraph, 36 ninth and tenth paragraphs of the Code of Criminal Procedure and the Law of the Judicial Registry and Archive) and asset forfeiture are placed as such.

This has been regulated in countries such as Germany and Spain and is accepted by the majority of legal scholars, although without agreement on the ideal name to use, but making it clear that it does not share the characteristics of the institutes indicated in previous sections: ¬"...Henao [Name50] criticizes the unitary positions </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> pointing out that </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">confiscation (comiso) is a phenomenon of a complex nature with a very broad functional scope, since it not only fulfills a punitive task, but also those of restitution, compensation, policing, and assurance, and even procedural tasks of an evidentiary and precautionary type</span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101"> (...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> In the same vein, [Name51]</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">and [Name52]</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">are of the opinion of the complex nature of confiscation (comiso) (...) [Name53]</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101; -aw-import:spaces">&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101; -aw-import:spaces">&#xa0;&#xa0; </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">raises the mixed character of the institution (...) In contrast to penalties or security measures, accessory consequences are coercive acts or sanctions of their own nature, legally linked to the imposition of a penalty for an intentional crime or misdemeanor or may be linked to it through a judicial pronouncement in certain cases. Thus, the classification of confiscation (comiso) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> as an accessory consequence implies that its basis is neither the culpability nor the dangerousness of the active subject of the crime." [Name54] , [Name55] . Confiscation (El comiso): systematic analysis and precautionary instrumentation. Editorial Universidad del Rosario, 1st edition, Bogotá, 2007, pp. 59-60 and 62. Even our legislation arises from the Model Penal Code for Latin America, where the issue of the legal nature and correct placement of confiscation (comiso) was widely discussed: "The opinion of placing confiscation (comiso) with a criminal character, but not as a penalty, and outside the civil consequences of the punishable act, finally prevailed, discarding the idea of this phenomenon as a measure of a procedural nature (...) One of the agreements of the Fourth Plenary Meeting held in Caracas, Venezuela from January 20 to 30, 1969, No. 89, was to include a text on confiscation (comiso), but on the understanding that it did not have the character of a penalty or an effect of civil liability (...) Why then, when ordering the regulations of that Code, was (...) confiscation (comiso) included under the Title (...) relating to 'Civil liability derived from the crime'? (ABDELNOUR GRANADOS, Rosa María. Civil liability derived from the punishable act. Editorial Juricentro, San José, 1984, pp. 369-370). </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">G) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">Having said the above, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">this Court considers that, in effect, Costa Rican confiscation (comiso) is, simply, a consequence established by the legislator for the crime (for a certain type of crimes, as was said and will be retaken) which, although it has criminal traits (legality, burden of proof, innocence, link to the act), civil traits (applies against third parties), and administrative traits (coerciveness and state official action), does not precisely fit any of them and, therefore, principles specific to the penalty (such as culpability or temporality), to security measures (such as personality), or to reparation (such as the dispositive principle) cannot be applied to it. Hence, it is valid for the legislator to regulate it for official application, establishing the loss of ownership as definitive, etc. However, this does not mean that, as a measure depriving rights that it ultimately is, it is not subject to principles such as legality and proportionality, which are specific even to any punitive matter, including in the area of administrative law, as they are the sole limiters of the State's power of empire</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">, as will be addressed in greater detail below</span><span style="font-family:Arial; color:#010101">" (emphasis supplied). In the present case , there is no typical, unlawful, and culpable act to decree such a measure, nor can any factual or legal basis be deduced to consider that the movable or immovable property of the accused should receive such a measure, since not only has the existence of any crime (criminal) not been demonstrated, but neither have debts or civil or administrative wrongs, or the breach of regulations of any other nature, been under discussion to make such a decision. Therefore, it is not necessary to delve into the prosecuting party's appeal, which presupposes the unlawfulness of the conduct, which this Chamber does not share according to the reasons extensively outlined above.</span><span style="font-family:Arial; font-weight:bold; color:#010101">”</span></p></div></body></html>" }, "previousdocs": [], "nextdocs": [] } ], "contenidosInteresOrden": "4", "despacho": "Tribunal de Apelación de Sentencia Penal II Circuito Judicial de San José", "despachoOrden": "42", "enteSistematizador": "CENTRO DE INFORMACIÓN JURISPRUDENCIAL", "esCambioCriterio": "0", "esCriterioUnificador": "0", "esNotaSeparada": "0", "esProtegida": "1", "esResolucionClave": "0", "esResolucionEstructural": "0", "esResolucionOral": "0", "esResolucionRelevante": "1", "esVotoSalvado": "0", "expediente": "110000660621PE", "fecha": "2013-02-19", "formatoDocumento": "ESCRITO", "hora": "15:25", "id": "sen-1-0034-565057", "normasInternacionales": [ "Convención americana sobre derechos humanos, Pacto de San José", "Pacto internacional de derechos civiles y políticos" ], "numeroDocumento": "00337", "redactor": "Rosaura Chinchilla Calderón", "sentenciasRelacionadas": [ "sen-1-0034-665531", "sen-1-0034-705944" ], "sourceName": "Documentos", "subNumeroDocumento": "1", "tipoDocumento": "SNT", "tipoInformacion": "Resolución Judicial", "tipoResolucion": "De Fondo", "tipoTexto": "1", "previousdocs": [], "nextdocs": [], "html": "<html><head><meta http-equiv=\"Content-Type\" content=\"text/html; charset=utf-8\" /><meta http-equiv=\"Content-Style-Type\" content=\"text/css\" /><meta name=\"generator\" content=\"Aspose.Words for .NET 23.6.0\" /><title></title></head><body style=\"font-family:'Times New Roman'; font-size:12pt\"><div><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">Res:</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\"> 2013-0</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold\">337</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">Exp:</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\"> 11-000066-621-PE (7) </span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; line-height:150%\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:28.35pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL.</span><span style=\"font-family:Arial; color:#010101\"> Segundo Circuito Judicial de San José. Goicoechea, a las quince horas con veinticinco minutos del diecinueve de febrero de dos mil trece.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> </span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">RECURSOS </span><span style=\"font-family:Arial; color:#010101\">interpuestos en la presente causa seguida contra </span><span style=\"font-family:Arial; font-weight:bold\">Nombre01</span><span style=\"font-family:Arial\">, mayor</span><span style=\"font-family:Arial; color:#010101\"> de edad, [...]; por el delito de </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">LEGITIMACIÓN DE CAPITALES</span><span style=\"font-family:Arial; color:#010101\"> en perjuicio de </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">LA ADMINISTRACIÓN DE JUSTICIA</span><span style=\"font-family:Arial; color:#010101\">. Intervienen en la decisión del recurso, las juezas Rosaura Chinchilla Calderón y Lilliana García Vargas y el juez Edwin Salinas Durán. Se apersonaron en esta sede, la licenciada Natalia Sarkis Fernández, fiscal del Ministerio Público; el encartado, mediante escrito autenticado por el licenciado Juan José Picado Herrera y el licenciado Carlos Luis Ibarra García, defensor particular del acusado y,</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:center; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">RESULTANDO</span><span style=\"font-family:Arial; color:#010101\">:</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold\">1.</span><span style=\"font-family:Arial; color:#010101\"> Que mediante sentencia Nº 826-2012 de las dieciséis horas del treinta de agosto de dos mil doce, el Tribunal Penal del Primer Circuito Judicial de San José, resolvió:</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> \"POR TANTO: Artículos 24, 39, 41 y 42 de la Constitución Política; 11 de la Declaración Universal de Derechos Humanos; 8 incisos 2 y 4 de la Convención Americana de Derechos Humanos, 14, 7 del Pacto Internacional de Derechos Civiles y Políticos; 6 de la Convención de las Naciones Unidas contra la Delincuencia Organizada; artículos 1, 30, 31, 45, 110 del Código Penal; 1, 11, 45, 136, 142, 258, 324, 341 a 357 ,360 a</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">&#xa0;</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> 365 y 367 del Código Procesal Penal, artículos 69, 83 a 92 de la Ley 8204 sobre Estupefacientes, Sustancias Psicotrópicas, Drogas de Uso no Autorizado y Actividades Conexas, Legitimación de Capitales y Financiamiento al Terrorismo y sus Reformas; artículo 92 de la Ley 9745 Código Tributario; se resuelve: 1.- SOBRE LA RESPONSABILIDAD PENAL Se declara a Nombre01 autor responsable del delito de </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">LEGITIMACIÓN DE CAPITALES PROVENIENTES DE DELITO GRAVE</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> cometido en perjuicio de la Administración de Justicia y el Orden Socio-Económico de Costa Rica y en tal carácter se le impone el tanto de DOCE AÑOS DE PRISIÓN que deberá cumplir en el lugar y forma que determinen los respectivos reglamentos carcelarios previo abono de la preventiva sufrida si la hubiere. 2.- SOBRE LA MEDIDA CAUTELAR DE LA PRISIÓN PREVENTIVA Habiendo variado la situación jurídica del acusado y ahora condenado Nombre01 en la que existe un juicio de certeza sobre su autoría y responsabilidad y a efecto de garantizar el cumplimiento de la acción de la Justicia y la válida terminación de este proceso en la que se ha impuesto una pena de prisión que excede en mucho la concesión de algún beneficio penitenciario o judicial se ORDENA PRÓRROGA DE LA PRISIÓN PREVENTIVA POR EL PLAZO DE SEIS MESES contados a partir del día de hoy, con vencimiento el próximo 28 de febrero 2013 fecha en que será revisada nuevamente. De haber adquirido firmeza este fallo antes de esa fecha se pondrá al condenado a la orden del Instituto Nacional de Criminología para lo de su cargo. 3.- SOBRE EL COMISO DE LOS BIENES a.- Se ordena el </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">comiso definitivo a favor del Instituto Costarricense sobre Drogas</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> de los siguientes bienes […]. c.- </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">SE ORDENA EL COMISO DEFINITIVO a favor del Instituto Costarricense sobre Drogas de los siguientes PRODUCTOS FINANCIEROS</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">: de las sumas líquidas que se encuentran en la cuenta número […] a nombre de Nombre01 en el BCR; en la[…].- </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">SE ORDENA EL LEVANTAMIENTO DE LAS MEDIDAS CAUTELARES</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> que pesan sobre los bienes muebles, inmuebles y productos financieros que no se afecten con esta sentencia. e.- </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">SE ORDENA LA DEVOLUCIÓN</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> al condenado Nombre01 o quien autorice de los documentos variados que se incautaron en las diligencias de allanamiento, así como del dinero efectivo encontrado en la vivienda del condenado Nombre01 cuyas boletas de depósito se lucen al folio 234. Se concede a la parte interesada el plazo improrrogable de TRES MESES contados a partir de la firmeza del fallo para proceder al retiro de los objetos y valores cuya devolución se está ordenando -caso contrario- vencido el plazo se procederá a su destrucción o comiso. f.- </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">SE ORDENA LA DEVOLUCIÓN a la Municipalidad de Limón</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> de los expedientes administrativos a nombre de los negocios comerciales y personales que involucran al acusado Nombre01. Se ordena la comunicación de este fallo al Instituto Nacional de Delincuentes y al Instituto Nacional de Criminología para lo de su cargo. g.- Son las costas a cargo del Estado por haberse procedido a instancia del Ministerio Público. Se notificará por lectura íntegra. NOTIFÍQUESE. </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Nombre02. Ricardo Barahona Montero. Linda Casas Zamora</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">\" </span><span style=\"font-family:Arial; color:#010101\">(sic, folios 835 a 934). </span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:34pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">2.</span><span style=\"font-family:Arial; color:#010101\"> Que contra el anterior pronunciamiento, interpusieron los recursos que aquí se conocen: la licenciada Natalia Sarkis Fernández, fiscal del Ministerio Público; el encartado, mediante escrito autenticado por el licenciado Juan José Picado Herrera y el licenciado Carlos Luis Ibarra García, defensor particular del acusado. </span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:34pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">3. </span><span style=\"font-family:Arial; color:#010101\">Que verificada la deliberación respectiva, una vez celebrada la audiencia oral solicitada, de conformidad con lo dispuesto por el artículo 466 del Código Procesal Penal </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic\">(reformado por leyes Nº 8837 y Nº 9021 y siguiendo la numeración indicada en la Fe de Erratas adoptada mediante acuerdo del directorio legislativo publicado en La Gaceta Nº 51 del 12 de marzo de 2012, que es la que se usará en este texto)</span><span style=\"font-family:Arial; color:#010101\">, el Tribunal se planteó las cuestiones formuladas en las impugnaciones.</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:34pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">4.</span><span style=\"font-family:Arial; color:#010101\"> Que en los procedimientos se han observado las prescripciones legales pertinentes.</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:34pt; line-height:150%\"><span style=\"font-family:Arial; color:#010101\">Redacta la jueza </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">Chinchilla Calderón</span><span style=\"font-family:Arial; color:#010101\">, y;</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:center; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold\">CONSIDERANDO:</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">I.- </span><span style=\"font-family:Arial; color:#010101\">En lo que se denominó </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">primer motivo por la forma</span><span style=\"font-family:Arial; color:#010101\">, el defensor particular del encartado, licenciado Carlos Luis Ibarra,</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\"> </span><span style=\"font-family:Arial; color:#010101\">alegó la violación a la Ley de Traducciones e Interpretaciones Oficiales N° 8142 del 05 de noviembre de 2001, al reglamento de dicha ley, decreto 30167-RE de 25 de enero de 2002 y la desaplicación del numeral 130 del Código Procesal Penal, pues la persona designada como intérprete oficial (no traductora), Nombre03, no lo era. Refiere que si bien antes no se requería intérprete oficial, desde esa ley sí se precisa y, para tener tal carácter, debe estar inscrita, tanto en el Ministerio de Relaciones Exteriores, como en la Dirección Ejecutiva del Poder Judicial, sin que la designada se encuentre en la lista oficial, tal y como dice acreditar con los documentos de folios 1102 y 1103. Por ello considera que la interpretación que ella realizó de las declaraciones de los testigos de la Fiscalía de Nueva York, Nombre04 y Nombre05, no pueden formar parte de la prueba a valorar, pues no fue prueba legal y se ha violado el debido proceso, al ser elementos en inglés. Solicita que se declare la ineficacia de esa prueba. </span><span style=\"font-family:Arial; text-decoration:underline; color:#010101\">Al contestar el recurso</span><span style=\"font-family:Arial; color:#010101\"> en forma oral (pues omitió hacerlo por escrito, al haberse solicitado audiencia ante esta Cámara) la Fiscalía señaló que dicho motivo debía rechazarse porque no hay ningún agravio, dado que no se demostró error en la labor desempeñada por la traductora, aunque ella no estuviera en la lista oficial de intérpretes. </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">Se rechaza el motivo. </span><span style=\"font-family:Arial; color:#010101\">A pesar de que este asunto, por las razones que se dirán en otros acápites, debe ser resuelto por el fondo, es necesario analizar el tema propuesto en este motivo, pues de esto depende el uso, o no, de algún material probatorio en las restantes consideraciones. En tal contexto hay que aceptar que, e fectivamente, mediante ley Nº 8142 del 05 de noviembre 2001, denominada </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Ley de Traducciones e Interpretaciones Oficiales</span><span style=\"font-family:Arial; color:#010101\">, vigente a partir de su publicación el 26 de noviembre de 2001, se reguló el tema de las traducciones e interpretaciones oficiales. Dicha legislación, en su primer numeral, distingue la traducción (que es el traslado de lo </span><span style=\"font-family:Arial; text-decoration:underline; color:#010101\">escrito</span><span style=\"font-family:Arial; color:#010101\"> de un idioma a otro) de la interpretación, que es el mismo proceso pero del lenguaje oral y señala, en el numeral 3, que </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">\"Las instituciones públicas requerirán la traducción </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101\">oficial</span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\"> de todo documento emitido en un idioma diferente del español, con miras a producir efectos legales en Costa Rica...\"</span><span style=\"font-family:Arial; color:#010101\"> (el destacado no es del texto original) encargando, en el numeral 5, a la Dirección Jurídica del Ministerio de Relaciones Exteriores y Culto el autorizar y sancionar a las personas acreditadas como traductoras o intérpretes oficiales, a quienes esa misma normativa les otorga fe pública en los documentos que, en el ejercicio de tales cargos, expidan. Adicionalmente, se señala que el nombramiento de ellas deberá hacerse mediante acuerdo ejecutivo del Ministerio de Relaciones Exteriores y Culto, si cumplen los requisitos del artículo 6 de esa ley, entre los que se menciona el ser costarricense, o residente con un mínimo de cinco años de domicilio continuo en el país; ser mayor de edad; poseer, tanto en español como en la lengua meta, el dominio propio de una persona versada en sus expresiones cultura les ; tener conocimientos actualizados en los idiomas en que solicita el nombramiento; disponer de acceso a los recursos informáticos, los materiales de referencia y las herramientas adecuadas para desempeñar la profesión; contar con un mínimo de cinco años de experiencia continua, en la traducción o interpretación profesional, comprobada en cada uno de los idiomas en que solicita el nombramiento; no estar inhabilitado por el Ministerio de Relaciones Exteriores y Culto; presentar una declaración jurada de que no tiene ninguno de los impedimentos señalados en esa Ley y aportar certificación de haber aprobado el examen para traductor o intérprete que, para los efectos de esta Ley, realice cualquier entidad autorizada por el Ministerio de Relaciones Exteriores y Culto, por medio de su Dirección Jurídica. No obstante, en esa normativa no se previó ninguna sanción administrativa o procesal ante su incumplimiento, sino que solo se reguló el régimen disciplinario de las personas allí inscritas. Asimismo, el único transitorio de esa ley estableció que </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">\"Los traductores oficiales e intérpretes oficiales nombrados antes de la vigencia de esta Ley, conservarán los derechos adquiridos.\" </span><span style=\"font-family:Arial; color:#010101\">El Reglamento a esa normativa se emitió mediante Decreto Ejecutivo Nº 30167-RE de 25 de enero del 2002, publicado en el Diario Oficial La Gaceta N° 43 de 1° de marzo del 2002. Esta última normativa, a la par de la fe pública, reguló el secreto profesional (artículo 7) y, paradójicamente, también el carácter público de la traducción e interpretación oficial (artículo 12), así como una serie de formalidades del acto y puntualizaciones sobre los requisitos, trámites y régimen disciplinario de las personas así designadas. Por su parte, el Código Procesal Penal se ocupa de reiterar la necesidad de traducciones e interpretaciones para las personas que no comprendan el español, o de reiterar que este es el idioma oficial del proceso (ver, a tales fines, los artículos 14, 130, 131), producto de las obligaciones internacionalmente contraídas relacionadas con ese tema y su vínculo con el derecho de defensa (ver artículos 8.2.a de la Convención Americana sobre Derechos Humanos y 14.3.a y f. del Pacto Internacional de Derechos Civiles y Políticos) al punto de no autorizar que se le cobren, al encartado, los honorarios pagados a tal profesional (artículo 265 párrafo final) pero sin hacer regulaciones específicas sobre el tema, salvo la referencia contenida en el numeral 215 párrafo final que señala que, en materia de intérpretes o traductores, por tratarse de saberes ajenos a lo jurídico, se aplicarán analógicamente las reglas de los peritajes.**Res:** **2013-0 337** **Exp:** **11-000066-621-PE (7)** **TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL.** Segundo Circuito Judicial de San José. Goicoechea, at fifteen hours and twenty-five minutes on the nineteenth of February of two thousand thirteen.

**APPEALS** filed in this case against **Name01**, of legal age, [...]; for the crime of **MONEY LAUNDERING (LEGITIMACIÓN DE CAPITALES)** to the detriment of **THE ADMINISTRATION OF JUSTICE**. Judges Rosaura Chinchilla Calderón and Lilliana García Vargas and Judge Edwin Salinas Durán participate in the decision of the appeal. Appearing before this court are licensed attorney Natalia Sarkis Fernández, prosecutor of the Public Ministry; the accused, through a brief authenticated by licensed attorney Juan José Picado Herrera, and licensed attorney Carlos Luis Ibarra García, private defender of the accused, and, **WHEREAS (RESULTANDO):** **1.** That by judgment No. 826-2012 at sixteen hours on the thirtieth of August of two thousand twelve, the Criminal Trial Court (Tribunal Penal) of the First Judicial Circuit of San José, resolved: *"THEREFORE (POR TANTO): Articles 24, 39, 41 and 42 of the Political Constitution; 11 of the Universal Declaration of Human Rights; 8 subsections 2 and 4 of the American Convention on Human Rights, 14, 7 of the International Covenant on Civil and Political Rights; 6 of the United Nations Convention against Transnational Organized Crime; articles 1, 30, 31, 45, 110 of the Penal Code; 1, 11, 45, 136, 142, 258, 324, 341 to 357, 360 to 365 and 367 of the Code of Criminal Procedure (Código Procesal Penal), articles 69, 83 to 92 of Law 8204 on Narcotics, Psychotropic Substances, Unauthorized Use Drugs and Related Activities, Money Laundering and Terrorism Financing and its Reforms; article 92 of Law 9745 Tax Code; it is resolved: 1.- ON CRIMINAL LIABILITY Name01 is declared the responsible author of the crime of MONEY LAUNDERING DERIVING FROM A SERIOUS CRIME (LEGITIMACIÓN DE CAPITALES PROVENIENTES DE DELITO GRAVE) committed to the detriment of the Administration of Justice and the Socio-Economic Order of Costa Rica and in this capacity is imposed a sentence of TWELVE YEARS OF IMPRISONMENT to be served in the place and manner determined by the respective penitentiary regulations, with credit for pre-trial detention suffered, if any. 2.- ON THE PRECAUTIONARY MEASURE OF PRE-TRIAL DETENTION The legal situation of the accused, now convicted, Name01 having changed, in which there exists a judgment of certainty regarding his authorship and responsibility, and in order to guarantee the fulfillment of the action of Justice and the valid conclusion of this process in which a prison sentence has been imposed that far exceeds the granting of any penitentiary or judicial benefit, an EXTENSION OF PRE-TRIAL DETENTION IS ORDERED FOR A PERIOD OF SIX MONTHS counted from today, expiring on the next February 28, 2013, the date on which it will be reviewed again. Should this ruling become final before that date, the convicted person shall be placed at the disposal of the National Institute of Criminology (Instituto Nacional de Criminología) for its corresponding action. 3.- ON THE CONFISCATION (COMISO) OF ASSETS a.- The definitive confiscation (comiso definitivo) in favor of the Costa Rican Drug Institute (Instituto Costarricense sobre Drogas) is ordered for the following assets […]. c.- THE DEFINITIVE CONFISCATION (COMISO DEFINITIVO) IS ORDERED in favor of the Costa Rican Drug Institute of the following FINANCIAL PRODUCTS: of the liquid sums found in account number […] in the name of Name01 at BCR; in the[…].- THE LIFTING OF THE PRECAUTIONARY MEASURES IS ORDERED for the movable assets, immovable assets, and financial products not affected by this judgment. e.- THE RETURN IS ORDERED to the convicted Name01 or his authorized representative of the various documents seized during the search procedures, as well as the cash money found in the home of the convicted Name01, the deposit slips of which appear on folio 234. The interested party is granted a non-extendable period of THREE MONTHS from the finality of the ruling to proceed with the withdrawal of the objects and valuables whose return is being ordered - otherwise - upon expiration of the period, their destruction or confiscation (comiso) shall be carried out. f.- THE RETURN IS ORDERED to the Municipality of Limón of the administrative files in the name of the commercial and personal businesses involving the accused Name01. Communication of this ruling to the National Institute for Criminals (Instituto Nacional de Delincuentes) and the National Institute of Criminology (Instituto Nacional de Criminología) for their corresponding actions is ordered. g.- Costs are the responsibility of the State for having proceeded at the instance of the Public Ministry. It shall be notified by full reading. NOTIFY. Name02. Ricardo Barahona Montero. Linda Casas Zamora"* (sic, folios 835 to 934).

**2.** That against the preceding pronouncement, the appeals known here were filed by: licensed attorney Natalia Sarkis Fernández, prosecutor of the Public Ministry; the accused, through a brief authenticated by licensed attorney Juan José Picado Herrera; and licensed attorney Carlos Luis Ibarra García, private defender of the accused.

**3.** That upon verifying the respective deliberation, after holding the requested oral hearing, in accordance with the provisions of Article 466 of the Code of Criminal Procedure *(reformed by laws No. 8837 and No. 9021 and following the numbering indicated in the Errata adopted by agreement of the legislative directorate published in La Gaceta No. 51 of March 12, 2012, which is the one used in this text)*, the Court considered the issues raised in the appeals.

**4.** That in the proceedings, the pertinent legal prescriptions have been observed.

Judge **Chinchilla Calderón** writes, and; **CONSIDERING (CONSIDERANDO):** **I.-** In what was called the **first ground of appeal on procedural grounds**, the private defender of the accused, licensed attorney Carlos Luis Ibarra, alleged a violation of the Law on Official Translations and Interpretations (Ley de Traducciones e Interpretaciones Oficiales) No. 8142 of November 5, 2001, the regulation of said law, Decree (Decreto) 30167-RE of January 25, 2002, and the misapplication of numeral 130 of the Code of Criminal Procedure, because the person designated as an official interpreter (not translator), Name03, was not one. He states that although an official interpreter was not previously required, it has been necessary since that law, and to have such status, she must be registered with both the Ministry of Foreign Affairs and the Executive Directorate of the Judiciary, but the appointee is not on the official list, as he claims to prove with the documents on folios 1102 and 1103. Therefore, he considers that the interpretation she made of the statements of the witnesses from the New York Prosecutor's Office, Name04 and Name05, cannot form part of the evidence to be evaluated, because it was not legal evidence and due process has been violated, as they were elements in English. He requests that the ineffectiveness of that evidence be declared. *When answering the appeal* orally (as he omitted to do so in writing, a hearing having been requested before this Chamber), the Prosecutor's Office stated that this ground should be rejected because there is no grievance, given that no error was demonstrated in the work performed by the translator, even if she was not on the official list of interpreters. **The ground is rejected.** Although this matter, for the reasons that will be stated in other sections, must be resolved on its merits, it is necessary to analyze the issue proposed in this ground, as the use or non-use of some evidentiary material in the remaining considerations depends on it. In this context, it must be accepted that, effectively, through law No. 8142 of November 5, 2001, called the *Law on Official Translations and Interpretations*, in effect since its publication on November 26, 2001, the subject of official translations and interpretations was regulated. Said legislation, in its first numeral, distinguishes translation (which is the transfer of that which is *written* from one language to another) from interpretation, which is the same process but of oral language, and indicates, in numeral 3, that *"Public institutions shall require the official translation of any document issued in a language other than Spanish, with a view to producing legal effects in Costa Rica..."* (the emphasis is not from the original text), charging, in numeral 5, the Legal Directorate of the Ministry of Foreign Affairs and Worship with authorizing and sanctioning persons accredited as official translators or interpreters, to whom this same regulation grants public faith (fe pública) in the documents they issue in the exercise of such duties. Additionally, it is stated that their appointment must be made through an executive decree of the Ministry of Foreign Affairs and Worship, if they meet the requirements of Article 6 of that law, among which are mentioned: being Costa Rican, or a resident with a minimum of five years of continuous domicile in the country; being of legal age; possessing, in both Spanish and the target language, the proficiency typical of a person versed in their cultural expressions; having up-to-date knowledge of the languages in which they request the appointment; having access to computer resources, reference materials, and the appropriate tools to perform the profession; having a minimum of five years of continuous experience in professional translation or interpretation, proven in each of the languages in which they request the appointment; not being disqualified by the Ministry of Foreign Affairs and Worship; presenting a sworn declaration that they have none of the impediments indicated in said Law; and providing certification of having passed the examination for translator or interpreter that, for the purposes of this Law, is conducted by any entity authorized by the Ministry of Foreign Affairs and Worship, through its Legal Directorate. However, this regulation did not foresee any administrative or procedural sanction for non-compliance, but only regulated the disciplinary regime of the persons registered there. Likewise, the sole transitory provision of that law established that *"Official translators and official interpreters appointed before the effective date of this Law shall retain their acquired rights."* The Regulation to this legislation was issued by Executive Decree (Decreto Ejecutivo) No. 30167-RE of January 25, 2002, published in the Official Gazette (Diario Oficial La Gaceta) No. 43 of March 1, 2002. This latter regulation, alongside public faith (fe pública), regulated professional secrecy (article 7) and, paradoxically, also the public nature of official translation and interpretation (article 12), as well as a series of formalities of the act and specifications on the requirements, procedures, and disciplinary regime of the persons so designated. For its part, the Code of Criminal Procedure (Código Procesal Penal) deals with reiterating the need for translations and interpretations for persons who do not understand Spanish, or reiterating that this is the official language of the process (see, for such purposes, articles 14, 130, 131), as a product of the internationally contracted obligations related to this issue and its link with the right to a defense (see articles 8.2.a of the American Convention on Human Rights and 14.3.a and f. of the International Covenant on Civil and Political Rights), to the point of not authorizing the fees paid to such a professional to be charged to the accused (article 265 final paragraph), but without making specific regulations on the subject, except for the reference contained in numeral 215 final paragraph which states that, in matters of interpreters or translators, as they involve knowledge outside the legal field, the rules for expert reports shall be applied analogically.

Nevertheless, given that the procedural legislation is older (it came into effect in 1998 and dates from 1996) and is general, that other set of rules, being special and later, must prevail over it, such that the referred rules on expert evidence, specifically regarding the form and requirements for appointing the person responsible for translation or interpretation, must be understood as applicable before that legislation came into effect. From this point of view, the appellant is correct because, indeed, in this matter, Ms. Nombre06 served as the translator of the documentary evidence, appointed by the prosecuting authority due to a lack of resources (inopia), given that on the official list provided by the Executive Directorate of the Judicial Branch, no professional was available. This appointment has not been challenged. Likewise, the Court appointed Nombre07 as interpreter for receiving the oral statements (see folio 634), who accepted and swore the oath of office (see folio 637) without any objection from the defense being raised at the time of that appointment or subsequently during her intervention (see folios 658 to 661); on the contrary, the defense conducted its examination of the witnesses using the services of the referred interpreter. It is also recorded at folios 1102 and 1103 that the procedure followed by the Judicial Branch for appointing such professionals, duly published in Judicial Bulletin 134-12 of July 11, 2012, is consistent with those regulations (of higher rank) and that the referred professional is not registered as an interpreter with the Ministry of Foreign Affairs and Worship. However, although the appellant's legal argument is true, the prosecution's objection is equally true, given that, although it is obvious there is a defect (since it was also not proven that the interpreter had been one since before that law came into effect in order to maintain her rights), this was not only not protested in a timely manner (neither when said person was appointed nor when she performed her duties), and instead, the defense used the professional services of the interpreter to formulate its examination, tacitly accepting the act, thereby validating that defect (Article 177 subsection b) of the Code of Criminal Procedure), but also, at this stage, no specific issue has been argued in which it can be determined that said person performed her duties erroneously and that, therefore, what was recorded as said by the English-speaking declarants was not accurate in the linguistic transfer made to Spanish. Article 439 of the Code of Criminal Procedure states that the existence of a grievance is essential for an appeal and that it cannot be alleged by someone who contributed to causing the defect, unless constitutional rights or the legal assistance and representation of the accused are injured, which is also not mentioned, even, in the ground for appeal. Therefore, what is sought is compliance with the rites for their own sake, disregarding the purposes for which they were created, which is nothing other than meaningless formalism, as it does not protect any right, and from that perspective, the allegation must be rejected, which then makes it possible for the rest of this Chamber's decision to be supported by the interpreted statements of the North American declarants.</span></p><p style=\"margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">II.- The accused, in a personal capacity, through a brief authenticated by licensed attorney Juan José Picado Herrera</span><span style=\"font-family:Arial; color:#010101\">, files an appeal against the conviction handed down against him. In </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">the first section</span><span style=\"font-family:Arial; color:#010101\"> of his appeal, he alleges that the principle of innocence was violated as an essential element of due process. He cites constitutional, conventional, and legal provisions; transcribes excerpts from the judgment and states that in the crime attributed to him, of money laundering (legitimación de capitales) of funds introduced through banking channels (and not in sacks or furtively) and originating from the company </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Peace Pipe</span><span style=\"font-family:Arial; color:#010101\"> of New York, it is necessary to prove the pre-existence of another crime (for this matter, cigarette smuggling in the </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Poospatuck</span><span style=\"font-family:Arial; color:#010101\"> Indigenous Reservation by selling them, without taxes, to non-indigenous people, taking advantage of the fact that Nombre01, the wife of the accused's brother, was […]</span><span style=\"font-family:Arial; font-style:italic; color:#010101\">,</span><span style=\"font-family:Arial; color:#010101\"> who can sell cigarettes without taxes to other indigenous people) committed, in this case, by another person (the accused's brother Nombre07) in another country (United States of America). He points out that the presumption of innocence arises from the moment a person is a suspect and is only overturned by a final conviction, and that, during the procedural interim, said presumption becomes a fundamental right, without any legal operator being able to rely on a supposed guilt before it is declared. He considers that in this type of illicit acts, said presumption exists not only in the current proceedings but also in the prior proceedings to prove the pre-existing crime. However, he deems the legal reasoning of the sentencing Court mistaken in drawing an equivalence between detention (of his brother in the United States) and the guilt of both, since they overturned the principle from the moment Nombre07 was detained in the United States on August 2, 2004, whereas it was not until many years later that he was found responsible, to date not final and not for all the acts attributed to him, none of which the accused in this case was in a position to know at the time he received and managed the money. Transcribing parts of the judgment, he states that the jury trial in the United States against his brother began in October 2007 and ended in May 2008, in which he was declared innocent of homicide, robbery, and arson but guilty of illegal weapons possession and illegal sale of cigarettes or smuggling, against which the defense filed various actions. In one of them, Judge Hurley reversed the jury's decision and exonerated him of responsibility for the sale of cigarettes (considering it probable that Nombre01 did not know about the legal prohibition on selling cigarettes without taxes given that the law was not sufficiently clear) and only upheld the charge of illegal weapons possession, all this in January 2010. He points out that this crime allows, in Costa Rica, for a conditional suspension of the proceedings, so it does not necessarily have to result in a sentence, in addition to the fact that, in the United States, acts for which he had been acquitted were taken into account as aggravating factors for the penalty. Lastly, by analogy, in our country that is not a serious crime, besides which it cannot be used as the basis for the necessary pre-existing criminality, as it has no relation to the money. Regarding the sale of cigarettes, the charges disappeared and, therefore, the accused here had no reason to doubt the monies received. Subsequently, the United States Government took that decision to the Court of Appeals, which, in July 2012, reinstated the smuggling charges without, to date, a penalty having been set, but it is on that last date that one can speak, with certainty, of Nombre07's guilt being born into legal existence. Only from then on could the accused here know that the money he was sending was illicit. He points out that with the detention, the only thing he could know was that his brother was facing legal proceedings, but not that he was going to be declared guilty, a decision that had many legal vicissitudes favorable to his brother, as mentioned. He considers it arbitrary and illegal that the sentencing Court based its decision on the date of the brother's detention to ground this judgment, stating that the accused, from that moment, should have known that the monies were illicit. This is why they convict him and decree asset forfeiture (comisos). He requests that this Chamber expressly rule on the legality or otherwise of that decision of the</span><span style=\"font-family:Arial; font-style:italic; color:#010101\"> a quo</span><span style=\"font-family:Arial; color:#010101\">. He adds that he could not know, merely from his brother's detention in New York, the illicit nature of the monies he sent, which were the product of tobacco sales in the United States, an activity he remains convinced was legal and in accordance with the indigenous custom of that country. He adds that the judgment confuses charges filed with charges proven, making speculations without support in the actual decision of the North American courts, which, to date, is not final. He considers that, given this lack of a final decision, the Court attributed to itself a “right” that did not correspond to it, but was solely the concern of the North American Courts, namely, to judge whether the predicate crimes (delitos base) occurred in that nation, arriving, here, at practically a conviction against his brother, violating all procedural, legislative, and jurisdictional mechanisms because the judges overstepped their authority, an action in which they also committed egregious errors, such as taking into account a sworn statement from Ms. Nombre01, sister-in-law of the accused here and, therefore, eligible to abstain from testifying in our jurisdiction, as provided by Article 36 of the Constitution and Article 205 of the procedural law, an issue the judges did not even question. </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">“I believe the Court has exceeded its judging function, as it crosses borders and draws conclusions from a process that has not ended there and over which it has no authority. Nor are we saying that the analysis of the pre-existence of the crime has to be very ‘light’ </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(sic) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">but this must necessarily be based on a verdict of guilt </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; color:#010101\">(…) </span><span style=\"line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101\">And that responsibility is entirely that of the Courts of the sister country and not of the trial court of our country”</span><span style=\"font-family:Arial; color:#010101\"> (folio 1020). He argues that if, as is being dealt with in this matter, much of the tobacco sold was to North American indigenous people and that, therefore, it was tax-exempt, even accepting that some tobacco was sold to non-indigenous people, which did not pay taxes even though it should have, there was no accounting study and, therefore, it is unknown how much of the money sent from that country to ours was legal (product of tax-exempt sales to indigenous people) and how much was not, questions that were no obstacle for the Court to convict and seize everything, so the indication of the money sent is amphibological, generated doubts, and could not support a conviction but rather an acquittal. He states that his intent (dolo) is tangible as of July 2012, not before, and that the Court broke the logical scheme of judicial analysis, as he is convicted before his brother, a pre-existing fact that had to be final, which it is not. He requests his acquittal and that the asset forfeiture (comiso) be reversed, as there is no prior illicit act, since it cannot be determined that the monies received are the product of the illegal (and not the legal) sale of cigarettes and because, furthermore, the assets grew with the dividends and interest generated, which was indeed legal, despite which a blanket asset forfeiture was decreed. In the alternative, he requests a new trial (reenvío). In the </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">second ground</span><span style=\"font-family:Arial; color:#010101\"> the violation of the principle </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">in dubio pro reo</span><span style=\"font-family:Arial; color:#010101\"> and the incorrect assessment of evidence, contrary to the rules of sound criticism (sana crítica), is argued. He points out that he is not a lawyer and does not know US law, so he had no reason to know that if his brother had been sending money legally and regularly, through the national banking system, as of his detention on August 2, 2004, he should even suspect that this money was illicit, when, nevertheless, that decision has not been settled in the US judicial system, to the point that a judge revoked the jury's decision and the local Court is not clear on which monies were legitimate and which were not, nor when the latter were moved, but rather it started from the premise that everything received from the day of the detention, August 2, 2004, was illicit. He states there is no accounting demonstrating the amount of cigarette sales to non-indigenous people (which should have paid taxes) nor the amount of sales to indigenous people (which should not pay taxes and, therefore, were legal sales), nor that everything received in the country was the illegal part, but rather that what was sent to Costa Rica could have been the legal part. He points out that, in this matter, no reference is made to capital that is illegal throughout the entire trafficking process, such as that arising from drug trafficking, but rather it is money obtained from tobacco sales, which are legal if taxes are paid for non-indigenous people and that the transactions were carried out, not in sacks or furtively, but through the banking system of both countries, making it contradictory that Costa Rica decrees the asset forfeiture of goods and not that these be placed at the service of the US government for its tax claims. He adds that the judges practically put his brother on trial, as they deemed the pre-existence of a serious crime proven without the process in North America having concluded, as Nombre01 has still not been sentenced, in order to know if we are facing a serious crime. He requests a new trial (reenvío) or the revocation of the conviction decision, with his immediate release. For his part, </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">licensed attorney Carlos Luis Ibarra, private defense counsel of the accused</span><span style=\"font-family:Arial; color:#010101\">, files an appeal. In what he improperly calls, given the type of appeal now in force, </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">second ground as to form</span><span style=\"font-family:Arial; color:#010101\">, it is alleged that Article 2 of the Code of Criminal Procedure was violated because the sentencing Court, purporting to make correct use of the dual criminality or identity of the norm (according to which, both US and national legislation must contemplate smuggling as a crime), alludes to the penalty to justify this requirement, when what doctrine indicates is that the conduct must be illicit in both countries and, in ours, it is regulated in Article 211 of the General Customs Law (Ley General de Aduanas) and not in the one mentioned by the </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">a quo</span><span style=\"font-family:Arial; color:#010101\">, which put words in his mouth that he did not say (such as that such dual criminality did not exist). However, such a crime is punishable by a penalty of one to five years so, as the minimum penalty for the predicate act is one year, it does not serve as a basis for the crime of money laundering (legitimación de capitales) which, therefore, was not born into legal existence, since numeral 69 of Law No. 8204, before the 2009 amendment, did not define what should be understood as a 'serious crime', nor did any other provision of the legal system, before the United Nations Convention against Transnational Organized Crime or Palermo Convention, which is not applicable to the matter. He points out that the lower limit of the penalty, not the upper one, must be taken to determine when a 'serious crime' is at issue. However, the Court made an analogical interpretation of numeral 92 of the Code of Tax Rules and Procedures (Código de Normas y Procedimientos Tributarios) No. 4755 of May 3, 1971 (a prior and general law) in which the crime of smuggling is not contemplated, which is provided for in a special and later law (General Customs Law No. 7557 of October 20, 1995) that was not applied and to which Article 1 of the Code of Tax Rules and Procedures itself creates an exception and to which numeral 223 of the General Customs Law refers. By proceeding in this way, the judges apply a norm that does have a minimum penalty of more than five years and not the correct law, whose minimum penalty is one year and which would make it impossible for a serious crime to exist as the basis of the conduct judged here. He requests the annulment of the proceedings for a new trial (nueva sustanciación). In the </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">first ground of appeal on the merits </span><span style=\"font-family:Arial; color:#010101\">and with some doctrinal citations, the non-application of Articles 20, 102, and 182 of the Commercial Code is alleged, as corporations (sociedades anónimas) have their own legal personality (personalidad jurídica) and being a shareholder of them does not make said person their owner, nor does it turn the individual into the entire legal entity (persona jurídica), but they remain two subjects with differentiated personality. He deems this important because the money received came from </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Nombre08 </span><span style=\"font-family:Arial; color:#010101\">(a company owned by Nombre01's wife) with the US bank </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Nombre09</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">,</span><span style=\"font-family:Arial; color:#010101\"> without the physical officer or legal representative having to respond personally for the obligations contracted by the companies, despite which, the Court indicated that the money transferred by that company was transferred by Nombre07 and was his, which finds no evidentiary support. In the United States, neither the company nor Nombre01's wife (an indigenous person) were reported, so those precepts are violated if it is considered that the money was his North American brother's, when the latter only acted as a representative of a company, according to the evidence presented at trial. For this reason, the crime of money laundering (legitimación de capitales) was never born into legal existence because there was no predicate crime (delito precedente) by that company or its indigenous owner, but by the accused's brother (who, according to what witness Nombre01 said, was the owner of apartments and condominiums and a shopping center and managed that company, but whose actions are not attributable to him). He considers it impossible to separate the monies received by the accused's brother, in a personal capacity, from others and, for that reason, he requests an acquittal. As a </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">second ground of appeal on the merits </span><span style=\"font-family:Arial; color:#010101\">a broad, analogical, and improper interpretation of Articles 69 of Law No. 8204 and 92 of the Code of Tax Rules and Procedures is reproached because the US authorities found Nombre01 responsible for the crime of smuggling (selling cigarettes to non-indigenous people without paying taxes), conduct that, in Costa Rica, in accordance with dual criminality, corresponds to that established in the General Customs Law (Article 211 called smuggling) and not in the Code of Tax Rules and Procedures, the former prevailing over the latter as indicated by Ruling Number 885-2003 of the Third Chamber. The crime contemplated in the General Customs Law has a minimum penalty of one year, so it cannot be conceptualized as a serious crime, since Article 69 of Law No. 8204, without the 2009 amendment (where it establishes the threshold at four years), did not establish what should be considered as such. He requests the revocation of the judgment and the acquittal of the accused. As a </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">third ground on the merits </span><span style=\"font-family:Arial; color:#010101\">the appellant, after summarizing the arguments outlined in other grounds, points out that the principle of legality may have been violated since, when numeral 69 of Law No. 8204 states </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">“whoever performs any other act,”</span><span style=\"font-family:Arial; color:#010101\"> it transfers to the judge the power to define the criminalized conduct, discarding the requirement of legal reservation in matters of criminal typification, without such proceeding being authorized by the Palermo Convention, which obliges legislating on the matter. He states that this is a blanket criminal law, filled with administrative provisions, and points out that Nombre01 was detained on August 4, 2004, and the Court attributed to the accused having received money from him (which he managed under the figure of mandate (mandato) and was not his, but belonged to a commercial company, which has not been accused of committing a crime, besides the fact that Nombre01 had other activities distinct from managing cigarette sales) starting on August 6, 2004 (a transfer of four million four hundred thousand dollars which, he says, does not appear in the accused's accounting documentation) and during the years 2005 and 2006 (for almost six million dollars), that is, when that person was already in prison, without it being possible to make transfers under such conditions and without that money necessarily having been the product of the crime of smuggling, as this was not proven, but rather the resources in the name of Nombre01 —which fed the redeemed growth fund in dollars and subsequent operations, carried out by the Banco de Costa Rica, at the defendant's request— were transfers made by the company </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Nombre08</span><span style=\"font-family:Arial; color:#010101\"> with Bank </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">Nombre09 </span><span style=\"font-family:Arial; color:#010101\">of New York, which was not accused of any crime and which, in the worst case, could be part of that person's dividends, if she were a partner, without the </span><span style=\"font-family:Arial; font-style:italic; color:#010101\">quantum</span><span style=\"font-family:Arial; color:#010101\"> of these being proven and without it being possible to know if all that money came from the sale of cigarettes without taxes to non-indigenous people or from other activities of Nombre01, none of which is established with certainty. He adds that the judgment attributed to the accused here the acquisition, with that money, of different real estate starting in 2007, but that cannot be an indication of anything, much less of concealing the origin, which was clear, since, for a long time, the money was without movement and only the investment strategy varied, as the assets were always placed in the name of the accused or a company that belongs solely to him, without seeking front men (testaferros), keeping double accounting records, opening accounts under simulated names, or, in any other way, hindering the tracing of those sums. He considers that the prior crime was not proven, that all those monies came from a company legally established in the United States (a place that is not a tax haven but rather is strict in its controls) and that they were subject to verification through the Patriot Act of that country, entering the banking system of that country and ours, without any irregularity being found, a situation that persisted for several years without it then being possible, from one moment to the next, to presume the illicit origin of these funds, which was not proven. He quotes author Nombre10 to point out that, even when the illicit origin of the money is known, if there is no intent to hide or conceal, the crime under discussion does not occur and that the formula “</span><span style=\"font-family:Arial; font-style:italic; color:#010101\">by any act</span><span style=\"font-family:Arial; color:#010101\">” violates the principle of criminal legality. He requests the revocation of the judgment and the acquittal of the defendant. In the </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">fourth ground on the merits </span><span style=\"font-family:Arial; color:#010101\">the violation of numeral 34 of the Criminal Code is alleged, as he argued the existence of a mistake of fact (error de tipo) on the part of the accused (and not a mistake of law (error de prohibición) as he says the judges incorrectly interpreted), in not knowing that the monies received and the purchase of properties in his brother's name made with those funds, were done with illicit resources. He states that Nombre01 was the first person convicted in the United States for the crime of smuggling for selling untaxed cigarettes to non-indigenous people</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> since, as a matter of social policy, in that country, for a long time, such illicit act was not punished, even though there was an express law. He points out that, due to this ambiguous situation on the part of the US authorities, who decided not to apply a law, it could be considered that the sale of tax-free cigarettes in indigenous reservations was something within the legal framework, to the point that it was done, and continues to be done, in plain view and with the patience of the public, which could have confused Nombre01, since the prohibition against claiming ignorance of the laws refers to national ones and not to foreign ones. That is, he could have had a mistake regarding the constitutive facts of the crime of money laundering (legitimación de capitales) and not have knowledge, or intent (dolo), that the money was illicit, and without intent there is no subjective criminal element. He requests the revocation of the conviction and asset forfeiture judgment. In the </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">fifth ground</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">on the merits</span><span style=\"font-family:Arial; color:#010101\">, the improper application of Articles 87 and 89 of Law No. 8204 concerning the asset forfeiture (comiso) of the goods is alleged, as the crime of money laundering (legitimación de capitales) is not proven beyond all doubt, since it was not demonstrated that the received money came from a crime imputed to its owner, the company</span><span style=\"font-family:Arial; font-style:italic; color:#010101\"> Nombre08</span><span style=\"font-family:Arial; color:#010101\"> or to its partner Nombre01. He requests the revocation of what was decided on this point and that the goods be released, being returned to the assets of the accused.

In responding to the appeal, the Prosecutor's Office indicated that the referred appeals should be dismissed because Nombre01's situation in the United States should not be weighed against the principle *in dubio pro reo*; that the four million dollars that the defense claims did not enter the accounts of the accused here do appear in the accounting reports and the expert report, and that, aside from the smuggling situation, it turns out that the serious crime from which the money originated, according to the Prosecutor's Office and the proven facts, were murder for hire and others.

**II.-** Although these are two separate challenge briefs, further divided into several arguments, due to their close interrelation, they have been summarized and will be addressed jointly, **granting them, as will be stated.** First, it should be noted that this Chamber is not competent to determine whether the phrase "*any other act*" contained in numeral 69 of law Nº 8204 violates, or not, the principles of legality and legal reserve, contained in articles 39 and 121(1) of the Constitution, since, in Costa Rica, constitutional review is of a concentrated type and is in the hands of the Constitutional Chamber (cf. articles 4 and 73 of the Law of Constitutional Jurisdiction and 10 of the Political Constitution). Therefore, only that body is competent to issue declarations, *erga omnes*, of unconstitutionality, nor can this Tribunal do so even for the specific case (see, in this regard, the discussion held in the majority opinion, number 1185-95 of the Constitutional Chamber, binding *erga omnes* pursuant to article 9 of the Law of Constitutional Jurisdiction, on the interpretative scope of article 8(1) of the Organic Law of the Judicial Branch). So, if the appellant has such a concern, they may raise it before that instance, following the procedure and formalities required by our Legal System. Second, from the summary provided above, it can be inferred that only two of the arguments from both challengers relate to evidentiary issues, namely, the matter concerning the ownership of the money transferred from the United States to Nombre01 (whether it belonged to Nombre01, his wife, or a company and, in the latter case, whether it had any effect that Nombre01 was merely its legal representative and the one sentenced in the United States) and the issue regarding the wife's right to abstain from testifying, which was not noted, even though incriminating documents were included. However, this Chamber will defer the order of analysis of these claims to —even aside from the correctness, or not, of what was decided on those topics— make a ruling on the merits of the matter, because, as will be indicated, the rest of the arguments require an exhaustive analysis of the crime of money laundering, both in its objective and subjective structure and in its genesis and regulation in Costa Rica, which allows the matter to be resolved without needing to address those issues, that is, even while hypothetically accepting, for argumentative purposes, what the lower court judgment said on that point.

**§1.** The crime of money laundering is defined, by the majority doctrine, as a relational or connecting offense (not as an autonomous crime), meaning it requires a **connection** with a **prior criminal act** (Cfr. Nombre11. *Técnica y política criminal reflexiones sobre el delito de lavado de capitales*. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26 and Nombre12 and BACIGALUPO, Silvina. *Política criminal y blanqueo de capitales*. Nombre13, 2009 and the authors referenced therein). This prior act can be defined by the legislator in very diverse ways (referring to a list of crimes, the severity of the penalties, or, in much broader terms, assuming any other crime is possible) but it is necessary that it exists and this means that —if attributed to a particular individual— that individual must have been tried and found definitively responsible for the crime (unless this was not possible due to personal circumstances excluding penalty, in which case the demonstration of the criminal wrong will suffice, provided it is not incompatible with the specific legislation of each country). Only when such direct attribution is not possible (either because the perpetrator was not identified, because they died, or because the criminal action was extinguished for certain reasons, **excluding** the statute of limitations for the criminal action because the validity of said action in both legislations is necessary for the purposes of that assessment, unless a rule to the contrary exists, which is not the case here), that prior act can be proven within the trial concerning the money laundering, obviously based on the evidentiary rules of the country conducting the trial. As indicated, this is so in general terms and without ignoring that there are modern trends that, to circumvent the evidentiary issue of the prior 'serious crime' (in the singular), prefer to refer, on one hand, to 'criminal activity' (which implies shifting the emphasis from the level of prior accreditation that the different strata of the Theory of Crime must have, according to the system followed), enabling the crime to be committed by the same agent of the preceding event (which is not possible if it is considered a relational crime) and, on the other, to give this crime a nature of an autonomous offense, establishing a differentiated legal interest (which is no longer the administration of justice, as usually occurs in concealment crimes, but the socio-economic order), which, some doctrinal sector has forcefully condemned: "*...this perspective, generally unconfessed openly and camouflaged under the generic formula of protection of the socioeconomic order, has led to legal and interpretative perversions, which have not only led to an abusive application of money laundering offenses, but have also, paradoxically, reduced the effectiveness of criminal provisions in relation to their criminal policy interest. The first perversion of this criminal policy idea consists in the expansion of the predicate crimes of money laundering to any crime, not even serious ones, including tax fraud. The second, related to the previous one and, like the previous one, based on the unconfessed aim of evading evidentiary requirements in criminal procedural law, has to do with the loss of certain contours of the typical element that the perpetrator acts knowing that the assets subject to laundering originate from a crime*" (Cfr. Nombre11. *Técnica y política criminal reflexiones sobre el delito de lavado de capitales*. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the website: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, p. 66). By this, it is intended to state in advance that this Chamber agrees with said author when they point out that: "*...the intent requires, therefore, knowledge of the concrete risk or danger that there is a conviction (sentencia condenatoria), the only thing that can give content to the normative element 'crime' in money laundering offenses. The existence of a prior conviction (sentencia condenatoria) is, therefore, an indispensable part of this normative element of the money laundering offense, however much one might want to ignore it in doctrine and jurisprudence. The best demonstration that this is so is that proof that the assets do not originate from any crime, that is, that there is no conviction (sentencia condenatoria) whatsoever, must imply the acquittal of the alleged launderer for the objective lack of typicality of their conduct*" (*Op. cit*., p. 78). Therefore, it is truly nonsensical that a process was initiated in our country for money laundering originating from a prior activity that is not, *per se*, illicit, when the case that supposedly originated this event (the sale of cigarettes to non-indigenous persons without prior payment of taxes) does not have, to this date (and much less at the date of the accusation), a final judgment (sentencia firme) in the country of origin, since the penalty that Nombre07, brother of the accused here, could face in the United States of America for such conduct is still unknown, and it is not sufficient to resolve this issue (which is a normative element of the crime as previously stated) to hear the testimony of some persons who mention the **probable** penalty that could be imposed, which, incidentally, due to that same national lack of knowledge, they might not have been questioned about and, therefore, might omit all the punitive particularities of the Anglo-Saxon system, such as the minimum extremes of that crime, which will be taken up later. Additionally, it is necessary to point out that, if the countries where the prior act (understood either as 'crime' or 'criminal activity,' which is not just a matter of terminology but, as indicated, has important legal consequences) and the money laundering act being judged were committed are different, **dual identity or dual criminality (doble identidad o doble incriminación)** must exist. That is, the prior act, from which the capital sought to be laundered is said to come, must also be a crime in the country where the said laundering is being judged, and, unless there is express legislation that regulates it otherwise, it must not be time-barred in either of the two. In this regard, the national doctrine states: "*The prior act from which the object of economic interest derives, in turn the material object of the money laundering crime, must be at least* ***typical and unlawful***, *that is, provided for as a crime in a criminal law and not covered by a cause of justification, without it being necessary that it be culpable (limited accessoriness), meaning it does not require the prior act to be culpably committed by the prior perpetrator, nor punishable in general, except for exceptions. §261 of the German StGB explicitly states that the object of economic interest must originate from a* '*rechtwidrige Tat' (unlawful act). *The death of the prior perpetrator of a typical and unlawful act has no influence regarding the prosecution of the money laundering crime. The prior act must be sufficiently specific and determined. The prior act, which is suitable for connecting with the money laundering crime, must be punishable in the Costa Rican jurisdiction and, if it is situated outside the national territory and* (sic) *must also be* (sic) *equally punishable in the foreign jurisdiction.* ***When the prior act has become time-barred, the question arises as to whether prosecution for the money laundering crime is possible. The prior crime must be punishable under Costa Rican criminal law, and a time-barred act, in general, is not.*** *Some German authors consider that if the prior act is time-barred, it is an irrelevant fact for the prosecution of the money laundering crime. However, the majority German doctrine and almost the entirety of Swiss doctrine consider that when the prior act is already time-barred, a conviction for the money laundering crime is not possible. The reason for the above is that the money laundering crime is a connected crime with the prior crime, and if the State waived its prosecution, it is not possible to prosecute the connected crime* (...) *It is not necessary for the perpetrator of the prior act to be known or to be alive* ***or, when it took place abroad, for there to be a final judgment (sentencia firme) convicting on the prior act*** ***or for it to be prosecuted by the competent foreign authorities*** (...) *I believe it is necessary for the Court to determine the existence of the prior act and its typical and unlawful character,* ***without mere suspicion that the object originates from a punishable act being sufficient***. *The establishment of proof of the prior act can be done by final judgment (sentencia firme), if it was heard by a competent authority. If this proof is lacking, the typical and unlawful character of the prior act, which is a normative element of the money laundering offense, can be proven. This proof must be presented by the judge hearing the money laundering crime in the country in accordance with the criteria of freedom of evidence and free evaluation of the evidence. In any case, the establishment of the prior act by the national judge as a normative element of the criminal type of money laundering* (sic) *does not imply issuing a sentence on national soil about the prior act that occurred abroad*" (Nombre14. *El delito de legitimación de capitales*. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 91-94; highlights supplied). This is a thesis that, in principle and except as will be stated, this Chamber shares, with the caveats that, although German legislation may require a criminal wrong for the prior act, this is not unanimous in all legal systems, as many refer to 'crime,' and one must abide by what each regulates, on one hand; and, on the other, that we do consider it necessary that, if the act is deemed to have been committed abroad, a trial has been or is intended to be pursued, and, if there was one, the foreign conviction (sentencia condenatoria extranjera) be provided (which is not a procedural prerequisite but a normative element of the crime), unless, as already advanced, it is impossible to determine the perpetrator or personal causes for the exclusion of punishability have occurred, because otherwise, an illegal trial of the prior act would take place by a non-competent authority. Furthermore, **both crimes**, that is, the base act and the connecting crime, **must have a logical relationship with each other**, because, no matter how criminal a prior act may be in two different legal systems and even if all legal provisions are met to validly consider it as a preceding act (that is, it meets the minimum penalty threshold or is on the list of those declared as such by the legislator), if there is no logical nexus of connection between the prior event and the subsequent one, it would be wrong to attempt to impose any sanction: "*The nature of the link between the asset suitable for laundering and the prior act is another problem to be solved. One doctrinal sector admits that the connection between the two must be causal. This seems logical to the extent that the assets capable of being laundered must have their origin, their cause, in a prior criminal act, derive from it* (...) *it therefore seems necessary to set limits, that is, to determine the criteria that produce the break in the causal link. This way of reasoning leads us to the analysis of a series of criteria, as a result of which an interruption of the causal nexus can occur, determining that the assets can no longer be considered as originating from the prior act. This need for limitation is linked to the fact that the question of origin would justify a regressus ad infinitum, in principle not admissible. An essential part of the legal economy could be considered contaminated within a short period of time as a consequence of an excessively broad interpretation and without limitations of the criterion of origin or source. This situation has been criticized by Swiss doctrine for being contrary to the constitutional guarantee of property acquired in good faith*" (Nombre15, Isidoro. *El delito de blanqueo de capitales*. Aranzadi, 3rd edition, 2012, p. 341). This obliges the establishment of both objective limits prior to the possession of the allegedly laundered object, and subsequent ones, a topic for which the theories of equivalence of conditions, adequacy, and objective imputation have been used to determine, in cases of mixing licit and illicit assets, whether total contamination, total decontamination, partial contamination, etc., applies. For what matters here now, it is clear that, for example, if a millionaire drives drunk in their country and that conduct is punishable by imprisonment, the fact that they transfer millions of dollars to another country, no matter how much they intend to evade the criminal consequences (fine) or civil ones (liability) derived from that driving, could not be considered money laundering, because the money did not **originate** from the crime, but pre-existed, and therefore, the evasion of liability cannot be sanctioned using the crime we are dealing with. On the other hand, by virtue of the principles of innocence and *non bis in ídem*, if the prior act was prosecuted abroad and the accused person was acquitted or the judgment established that the illicit act was not committed, it is not possible for it to serve as a basis for a subsequent money laundering charge, nor is it possible for national courts to re-examine it, with new evidence or by re-evaluating the evidence assessed there differently, because this would affect the principle of material res judicata guaranteed both by our Political Constitution (article 42) and by the international human rights instruments signed by the country (see articles 8.4 of the American Convention on Human Rights and 14.7 of the International Covenant on Civil and Political Rights). This, in general terms, for a specific analysis of the criminal type applicable to the factual species submitted to our knowledge must be carried out to determine whether all these doctrinal criteria are extrapolable to domestic law and whether the selected criminal type contains other important elements (principle of legality). To do this, it is necessary to determine which criminal law is applicable to this matter, given that there have been several that regulate the topic.

**§2. Applicable law to this case and objective elements of the crime: (a)** In Costa Rica, before 1988, there was no crime similar to the one under discussion, neither in name nor in elements; rather, criminal legislation, mostly collected, as it should be, in the Penal Code —and not scattered, as now, in multiple special laws— only provided for some concealment crimes, such as receiving stolen property, receiving goods of suspicious origin, real assistance, and personal assistance (cf. articles 330 to 332 of the Penal Code, renumbered by laws Nº 7732 and 9048 and according to the SINALEVI system).

(b) It is with Law No. 9093, of April 22, 1988 (published in Supplement No. 16 to La Gaceta No. 83 of May 2, 1988), the Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use, and Related Activities (Ley sobre Estupefacientes, Sustancias Psicotrópicas, drogas de uso no autorizado y actividades conexas), that, for the first time, this matter is regulated in a manner very similar to the current one, in Article 15 which stated "A prison term of eight to fifteen years shall be imposed on anyone who carries out any act or contract, real or simulated, of acquisition, possession, transfer, or disposal of assets, aimed at hiding or concealing the origin of economic resources obtained through the illicit trafficking of drugs or crimes related to that activity, independently of the place where the illicit act has been committed. When the act has been committed abroad, its commission may be proven by any means" (emphasis added). Note how this first regulation circumscribed the scope of application of money laundering (legitimación de capitales) to those obtained from activities related to drug trafficking. What should be understood as a drug? Article 1 of that law made reference to substances that cause dependency. However, although there are many substances that cause it (including alcohol, tobacco, some sodas, and even coffee), it was not the medical-cultural criterion that should be used to unravel the meaning of the term, but rather "drugs" is a normative concept, of a legal type, which must be filled in from legal definitions adopted by the country and which, because they exist, are restrictive and prevail over cultural criteria (Article 1 of the Penal Code). Thus, the Single Convention on Narcotic Drugs (Single Convention on Narcotic Drugs) (subscribed by Costa Rica on March 30, 1961, and incorporated into national law through Law No. 4544 of March 11, 1970) established several lists (I, II, III, and IV) of substances subject to state control, among which tobacco was not mentioned, which is what was traded here and from whose sale the profits that are the basis of this proceeding originate. It should be added that this international regulation already alluded to crimes related to drugs and narcotics as "serious crimes" (serious crimes), without this term being defined (see Articles 36.1; 36.2.a.iv). Nothing was expressed regarding tobacco in the Protocol Amending the Single Convention on Narcotic Drugs (Protocol Amending the Single Convention on Narcotic Drugs) (signed by our country on March 25, 1972, and incorporated into national law through Law No. 5168 of December 26, 1972); in the Convention on Psychotropic Substances (Convention on Psychotropic Substances) (subscribed by Costa Rica on May 31, 1972, and incorporated into national law through Law No. 4990 of June 10, 1972); nor, finally, in the United Nations Convention against Illicit Traffic in Narcotic Drugs or Psychotropic Substances (United Nations Convention against Illicit Traffic in Narcotic Drugs or Psychotropic Substances) (subscribed by Costa Rica on April 25, 1989, and incorporated into national law through Law No. 7198 of November 1, 1990). (c) That first law against drug trafficking was reformed by Law No. 7233 (Law on Narcotics, Psychotropic Substances, Drugs of Unauthorized Use, and Related Activities, published on May 21, 1991) which, in its numeral 17, established: "A prison term of eight to twenty years shall be imposed on anyone who intervenes in any type of contract, whether real or simulated, of alienation, investment, pawning, assignment, conversion, transfer, keeping, or concealment of the nature, origin, location, destination, or circulation of the profits, things, values, titles, or assets coming from the criminal acts typified in this law or from the economic benefit obtained from said crimes, provided that they had knowledge of that origin and intend, with these actions, to hide or conceal the origin of the resources or to evade the legal consequences of them, independently of the place where these illicit acts were committed. The personal favoring of the crime established in this article shall be sanctioned with the penalty indicated for the author. When the drug trafficking or the crimes related to that activity, even those referring to the conduct typified in this article, have been executed abroad, their respective demonstration may be proven by any means of evidence, provided that the guarantees established in national legislation and in international conventions accepted by Costa Rica for the protection of the defendant's rights are respected. The banks of the National Banking System must provide the reports related to the conduct typified in this article, which are requested by the Public Ministry or the judges of the Republic, even in the preparatory investigation phase. The judges may also order the delivery of any documentation or means of evidence that the banks have in their possession, when necessary for an investigation. The resolution ordering the foregoing must duly justify the need for the report or the provision of the evidentiary means" (emphasis added). In this legislation, the referenced article no longer referred to a normative-legal concept not contemplated in the rule, but rather, it expressly related the legalization of assets there with the other crimes typified therein, among which, it should be noted, there was none alluding to the tobacco trade or different from drug trafficking. (d) In a similar sense, Law No. 7786 pronounced, in force since its publication on May 15, 1998, which, in its numeral 1, circumscribed the scope of action of said regulation to activities related to the substances described in those international instruments (within which, as already stated, tobacco did not appear) since it stated: "This law regulates the prevention, use, possession, trafficking, and commercialization of narcotics, psychotropics, inhalable substances, and other drugs and pharmaceuticals capable of producing physical or psychological dependence, included in the Single Convention on Narcotic Drugs of the United Nations, of May 30, 1961, approved by Costa Rica through Law No. 4544, of March 18, 1970, amended in turn by the Protocol Amending the Single Convention on Narcotic Drugs, Law No. 5168, of January 8, 1973; as well as in the Vienna Convention on Psychotropic Substances, of February 21, 1971, approved by Costa Rica through Law No. 4990, of June 10, 1972; also, in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, of December 19, 1988, approved by Costa Rica through Law No. 7198, of September 25, 1990; in addition, the regulations on this matter that are approved to be included in the lists that the Ministry of Health must elaborate, keep updated, and publish annually in La Gaceta. Furthermore, the control, inspection, and oversight of activities related to inhalable substances, drugs or pharmaceuticals, and the products, materials, and chemical substances that intervene in the elaboration or production of such substances are regulated; all of the foregoing without prejudice to what is stipulated on this matter in the General Health Law, No. 5395, of October 30, 1973. Likewise, financial activities are prevented and sanctioned, as a way to avoid the penetration of capital coming from the crimes of illicit trafficking and other related crimes and of all the procedures that may serve as means to legitimize capital coming from drug trafficking. It is the State's function, and the adoption of the necessary measures to prevent, control, investigate, avoid, or repress all illicit activity relating to the matter of this law is declared of public interest" and which, in its numeral 72, typified: "Shall be sanctioned with a prison sentence of eight to twenty years, anyone who: a) Converts, transfers, or transports assets of economic interest that proceed, directly or indirectly, from the illicit trafficking of narcotics, psychotropic substances, or related crimes (delitos conexos), to hide or conceal their illicit origin or to help, by means of such conversion, transport, or transfer, any participant in the commission of one of these crimes to evade the legal consequences of their acts. b) Hides or conceals the nature, origin, location, destination, movement, or true ownership of resources, goods, or rights relating to them, with knowledge that they proceed directly or indirectly from the illicit trafficking of narcotics, psychotropic substances, or related crimes. The penalty shall be ten to twenty years when the foregoing acts are committed by employees, officials, directors, owners, or other authorized representatives of financial institutions" (emphasis added). Said law was in force until January 10, 2002. (e) On January 11, 2002, Law No. 8204, called "Integral reform of the Law on narcotics, psychotropic substances, drugs of unauthorized use, money laundering (legitimación de capitales), and related activities" was published in La Gaceta No. 8. This set of articles had the particularity of broadening the criminal spectrum it regulated, since its Article 1, in addition to referring to the substances mentioned in those international conventions accepted by the country, mentions, in the fourth and fifth paragraphs, "Furthermore, financial activities are regulated and sanctioned, with the aim of preventing the penetration of capital coming from serious crimes (delitos graves) and of all the procedures that may serve as means to legitimize said capital. For the purposes of this Law, serious crime shall be understood as conduct that constitutes a crime punishable by a deprivation of liberty of four years, as a minimum, or a more severe penalty" (boldface added). In this situation, numeral 69 stated: "Shall be sanctioned with a prison sentence of eight to twenty years: a) Anyone who acquires, converts, or transmits assets of economic interest, knowing that these originate in a serious crime, or carries out any other act to hide or conceal the illicit origin or to help the person who has participated in the infractions to evade the legal consequences of their acts. b) Anyone who hides or conceals the true nature, origin, location, destination, movement, or rights over the assets or the ownership thereof, knowing that they proceed, directly or indirectly, from a serious crime. The penalty shall be ten to twenty years of prison when the assets of economic interest originate in any of the crimes related to the illicit trafficking of narcotics, psychotropic substances, money laundering, diversion of precursors or essential chemical substances, and related crimes" (emphasis not original). Of course, legislative activism did not stop there, but rather three additional normative changes subsequently occurred that are important to outline: (f) On October 29, 2004, the Law against Corruption and Illicit Enrichment in Public Office (Ley contra la corrupción y el enriquecimiento ilícito en la función pública) No. 8422 of September 14, 2004, was published in La Gaceta No. 212, which, in its Article 47, states: "Receiving, legalizing, or concealing assets. Anyone who hides, secures, transforms, invests, transfers, guards, administers, acquires, or gives the appearance of legitimacy to assets or rights, knowing that they have been the product of illicit enrichment or of criminal activities of a public official, committed on the occasion of their office or by the means and opportunities it provides them, shall be sanctioned with a prison term of one to eight years." That is, a crime of money laundering from assets coming, specifically, from functional crimes was created. (g) Likewise, in Supplement No. 29 to La Gaceta No. 143, on July 24, 2009, the Law against Organized Crime (Ley contra la Delincuencia organizada) No. 8754 was published, in which Article 1 indicated: "Interpretation and application. Organized crime is understood as a structured group of two or more persons that exists for a certain time and acts in concert with the purpose of committing one or more serious crimes. The provisions of this Law shall be applied exclusively to investigations and judicial proceedings in cases of national and transnational organized crime crimes. For everything not regulated by this Law, the Penal Code, Law No. 4573; the Criminal Procedure Code, Law No. 7594, and other concordant laws shall apply. For the entire penal system, a serious crime (delito grave) is one that, within its penalty range, can be sanctioned with a prison term of four years or more" (boldface added). Regarding this regulation, it should be commented that it defined ‘serious crime’ as that punished with a penalty of four years or more, regardless of where in the punitive scale that amount was (minimum or maximum extreme), but rather it was sufficient that the act could be punished with such a sanction. However, the article is contradictory because, on the one hand, it states that this definition is for the entire penal system when, immediately before, it had stated that the provisions of this regulation would only apply to cases of organized crime. This law arose from the obligations assumed by the Costa Rican State upon subscribing to the United Nations Convention against Transnational Organized Crime, known as the Palermo Convention, adopted on November 15, 2000, and approved through Law No. 8302, published in La Gaceta No. 123 of June 27, 2003. This international instrument, in Article 2.b), defined ' serious crime ' in the following manner: "...shall be understood as conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or with a more severe penalty" (the underlining is external), which is a contradiction because if it is a maximum penalty, it cannot be affirmed that it is "at least" or that it may be a higher penalty. In any case, both laws are subsequent to the charge that concerns us here and, as will be seen, they are not more beneficial for the accused, so they cannot be applied retroactively (Articles 11 and 12 of the Penal Code and 34 of the Constitution). Finally, (h) Article 2, point 1, subparagraph a) of the Law for Strengthening Legislation against Terrorism (Ley de Fortalecimiento de la Legislación contra el Terrorismo), No. 8719 of March 4, 2009 (published in La Gaceta No. 52 of March 16, 2009, and in force since then), changed the name of the law that concerns us so that, henceforth, it would be called "Law on narcotics, psychotropic substances, drugs of unauthorized use, related activities, money laundering, and financing of terrorism (financiamiento al terrorismo)", the content of Article 1 being reformed by said law, where the reference and definition of ' serious crime ' was suppressed in order to broadly establish that, with said law: "Furthermore, financial activities are regulated and sanctioned, with the aim of preventing money laundering and actions that may serve to finance terrorist activities, as established in this Law." For its part, in Article 2, point 1, subparagraph b) of the aforementioned Law No. 8719 of March 4, 2009, the content of numeral 69 was modified to read as follows: "Shall be sanctioned with a prison sentence of eight (8) to twenty (20) years: a) Anyone who acquires, converts, or transmits assets of economic interest, knowing that these originate in a crime that, within its penalty range, can be sanctioned with a prison sentence of four (4) years or more, or carries out any other act to hide or conceal the illicit origin, or to help the person who has participated in the infractions to evade the legal consequences of their acts. b) Anyone who hides or conceals the true nature, origin, location, destination, movement, or rights over the assets or the ownership thereof, knowing that they proceed, directly or indirectly, from a crime that, within its penalty range, can be sanctioned with a prison sentence of four (4) years or more. The penalty shall be ten (10) to twenty (20) years of prison when the assets of economic interest originate in any of the crimes related to the illicit trafficking of narcotics, psychotropic substances, money laundering, diversion of precursors, essential chemical substances, and related crimes, conduct typified as terrorist, in accordance with current legislation, or when the purpose is the financing of acts of terrorism and terrorist organizations" (emphasis added). In this last regulation, chain money laundering (proceeding from a crime of that same previous nature) was regulated, unnecessarily given the definition of 'serious crime', and a legislative erratum was needed to correct some internal defects (see publication in La Gaceta No. 63 of March 31, 2009), which says a lot about the criminal policy and criminal technique that it incorporated. It is true that, in addition to the law, in many of the cited international instruments, ratified by the Costa Rican State, the state obligation to repress money laundering or asset laundering was established, but the assumption of an international obligation does not, ipso facto, generate the creation of criminal norms, since these require a formal law, that is, one emanating from the Legislative Assembly, following the procedure established for that purpose by the legal system and the establishment of a specific penalty for conduct, none of which those conventions have, which allude to the need to prevent certain conduct, define it, may recommend punitive frameworks, etc., without fulfilling those requirements derived from the Principle of Legality in Criminal Law.

From the foregoing "legal archaeology," the following can be extracted as initial important conclusions for the matter at hand: (i) In Costa Rica, the crime of money laundering (legitimación de capitales) did not exist until May 2, 1988, because, before that date, what was regulated in the Criminal Code were crimes of concealment (encubrimiento), without foreseeing many of the conducts aimed at diverting the proceeds of crime now listed in other special provisions; (ii) From May 2, 1988, until January 10, 2002, the only money laundering that was penalized was that arising from the trade of drugs, narcotics, or psychotropic substances, substances that do not include all those that generate addiction, but only those listed internationally and among which tobacco was not foreseen; (iii) As of January 11, 2002, the punitive spectrum was expanded to sanction the money laundering of capital from 'serious crimes' (delitos graves) and this term was legally defined (normative-legal element of the criminal offense) as any crime that had a minimum extremity of four years of imprisonment, which was maintained until March 15, 2009, except for assets originating from crimes committed by public officials, taking advantage of their positions, which, from October 29, 2004, to date, came to be regulated in an independent regulation which, incidentally, despite the proclamations set forth in the Statement of Reasons for the bill, rather notably lowered the penalty for this event; (iv) As of March 16, 2009, money laundering can originate from any crime punishable by imprisonment of four years or more (except, as already stated, for functional crimes regulated more leniently in the special regulation), regardless of whether or not that is the minimum or maximum extremity of the sanction, but it suffices that, within the abstract punitive range, this is one of the possible penalties to be imposed. This recount is of special importance in this matter, given the principle contained in Article 11 of the Criminal Code, derived from the old adage nullum crimen nulla poena sine previa lege, according to which "Punishable acts shall be judged in accordance with the laws in force at the time of their commission," except, of course, if subsequent laws more favorable to the accused are enacted (Article 12 of the Criminal Code) which, it should be said at once, does not happen in this case because, as can be seen from the recount made, not only did the subsequent laws maintain the same penalty or increase it, with respect to the previous ones —save for the case of functional crimes, not applicable to the species— but they also expanded the normative spectrum of the prior acts that can give rise to money laundering. Likewise, because, by virtue of the principle of correlation between accusation and sentence (article 365 of the Criminal Procedure Code), only the facts charged could be deemed proven. It was thus that the proven facts of the judgment, keeping the attribution intact, state, in what is of interest: "As proven facts of interest for the resolution of this matter, the Court lists the following: 1) Between 1996 and 2004, Nombre07 -brother of the accused Nombre01- was investigated, significant evidence was gathered against him, and he was accused for activities characteristic of organized crime in New York, United States, among which are the commission of crimes of murder for hire, assault, kidnapping, arson, robbery, extortion, and tax evasion, with the purpose of promoting the commercial activity of his company P, a duty-free cigarette sales business located on the reservation [...] and consequently with the sales limitations imposed by such location. 2) With the execution of the cited criminal acts, the organization led by Nombre07 boosted the commercial activity of company P, thus achieving -in an illicit manner- the obtaining of large sums of money that he subsequently sent by bank transfers to Banco de Costa Rica with the aim of eluding the consequences of such illicit acts of contraband. 3) In the year 2000, the United States Attorney's Office for the Eastern District of New York initiated an investigation against Nombre07 for violations of the Racketeer Influenced and Corrupt Organizations Act (Ley Sobre Organizaciones Corruptas Criminales) based on the illegal sale of duty-free cigarettes outside the described indigenous reservation that operated in Long Island, New York. 4) Between 2000 and 2004, Nombre07, aware of the investigations against him, transferred his income held in Banco Nombre09 of Mastic, New York, United States to the account in his name, number [...] and to account number [...] in the name of the accused Nombre01, both at Banco de Costa Rica. 5) In addition to the sending of money, on October 3, 2000, Nombre07 constituted in our country a Dollar Growth Fund at Sociedad Administradora de Fondos de Inversión del Banco de Costa Rica that, by August 12, 2004, maintained an accumulated fund for the sum of US$10,350,248.00. 6) On July 17, 2000, in San José Centro, before Notary Public Juan José Picado Herrera, Nombre07 and the accused Nombre01 appeared and, by deed one hundred thirty-two of volume twenty-nine of the protocol, Nombre07 conferred Unlimited General Power of Attorney (Poder Generalísimo sin límite de suma) to the accused Nombre01, for all his businesses denoting the trust and closeness between them. 7) On August 2, 2004, Mr. Nombre07 was arrested in New York on the occasion of the said charges and was sentenced to a penalty of 10 years in prison for the crime of possession of a prohibited weapon, which he is currently serving in New York. 8) Between 2002 and 2004, the accused Nombre01 received from Nombre07 and kept in his Banco de Costa Rica savings account number [...] the sum of US$16,783,980.00 (sixteen million seven hundred eighty-three thousand nine hundred eighty US dollars). On August 6, 2004, into said account -knowing of his brother's arrest and the illicit origin- the accused Nombre01 received, to conceal, the sum of $4,400,000.00 (four million four hundred thousand dollars, US currency) transfer made by TMG Nombre16 PARTNERS, a company linked to Nombre07. 9) On August 12, 2004, the accused Nombre01 requested from Sociedad Administradora de Fondos de Inversión (SAFI) of BCR, the redemption for the sum of US$10,350,248.00 (ten million three hundred fifty thousand two hundred forty-eight US dollars) from the Dollar Growth Fund in the name of Nombre07, for which he provided the express request in that regard signed by Nombre07 on August 11, 2004. With such money under his power, the accused Nombre01 deposited it into his savings account [...] to subsequently constitute a Dollar Growth Fund in his name for the said global sum. 10) With such actions, the defendant Nombre01 managed to accumulate the total sum of $14,750,248.00 (fourteen million seven hundred fifty thousand two hundred forty-eight dollars US currency) which he concealed to prevent US authorities from pursuing and seizing the money originating from Nombre07's illicit activity. 11) Once the accused Nombre01 managed to have all the funds transferred by Nombre07 in his name and following his instructions, starting from 2007 he proceeded to dispose of the money of illicit origin, through the acquisition of movable and immovable property located in the province of [...]. 12) The assets acquired by the accused Nombre01 under this criminal modality are (...) 13) The money legitimized by the accused Nombre01 and the acquisition of the movable and immovable property acquired by him, damaged the socio-economic order of the Costa Rican State" (cf. folios 846 to 848; emphasis supplied). Note, then, how three topics of interest arise from the proven facts: 1)- the defendant is accused of receiving money from his brother, money whose origin, according to what was charged, came from activities related to organized crime in New York, United States, among which were the commission of crimes of murder for hire, assault, kidnapping, arson, robbery, extortion, illicit possession of a weapon, and tax evasion. However, of all those charges, it must be said from here, the defendant's brother was convicted, with finality, only for the illicit possession of the weapon (according to the jury verdict of May 1, 2008: see document 897, page 2 of legal assistance file 11-91-1035-PE, folio 348) and although on that same occasion he was convicted by the jury for cigarette tax evasion, upon his appeal, District Judge Denis R. Hurley dismissed the charges on April 16, 2010, and acquitted him, alleging the reasonableness that Nombre07 was unaware of the law's applicability (see documents from folios 352 to 371, legal assistance translation file 11-91-1035-PE, Volume II) and then, a state appeal meant that, as of July 16, 2012 (moments before the commencement of this hearing), the Court of Appeals for the Second Circuit of the United States, composed of judges Guido Calabresi, Denis Chin and Susan L. Carney, reinstated the jury's 2010 verdict (see documents from folios 672 to 726/Volume II), with the setting of the penalty for that act still pending, even to this date, which denotes, prima facie, the debatability of the point in question. The cited doctrine makes a differentiation between "illegal money" also known as "dirty money" ("dinero sucio"), which originates from criminal activities per se and whose subsequent legitimization is called 'recycling' or 'laundering', with the notions of "tainted funds" ("fondos contaminados") or "black money" ("dinero negro") that comes from legitimate productive activities, with the consequent evasion of tax effects and whose legitimization process is referred to as 'money whitening' ('blanqueado de dinero'). Therefore, to situate ourselves immediately, based on the proven facts and the final acquittal of Nombre07 for the crimes of extortion, homicide, arson, etc., whose factual basis cannot be used in another matter without contravening the principle of res judicata, here we are facing 'whitening' operations of 'black' or 'tainted money' and not the first phenomenon. Although the issue of criminal organizations is mentioned, the facts cannot be judged under the national regulations governing organized crime (both in law and through conventional ratification) because this had not been approved by then and, as if that were not enough, the defendant's brother was acquitted, with finality, of the remaining crimes alluding to that topic (see document 904 of Nombre17 from evidence file 3 provided by the defense, official translation, at folio 113). It is important to emphasize this because, even the prosecutor, during the oral hearing held in this office, made reference to the other crimes, which constitutes, at the very least, a regrettable omission on her part, especially considering it was the same prosecutor who attended the hearing and directly observed the evidence, so the duty of objectivity that assists her (Article 63 of the Criminal Procedure Code) would oblige, at the very least, to leave it so stated, which she not only failed to do, but she tried to ignore it with the sole reference to the US prosecutor's indictment; 2)- the defendant was accused of receiving money from him, originating from those activities, and later investing it; 3)- it was proven that Nombre07, the defendant's brother, transferred to the country, between 2002 and 2004, a little over sixteen million dollars, leaving some sums in his name and others in the accounts of the accused here, to whom, on July 17, 2000, he granted unlimited general power of attorney (poder generalísimo sin límite de suma) for the administration and disposal of his assets. With part of that money, on October 3, 2000, a dollar growth fund was constituted at Banco de Costa Rica and, approximately four million dollars of that sum were transferred on August 6, 2004, the date on which the defendant's brother was arrested in the United States. On August 12, 2004, the accused executed the redemption of that fund, transferring the money to accounts in his name, and it was not until after 2007 that Nombre01 began to invest part of that money in the acquisition of various types of movable or immovable property, which he registered both in his name and in the name of companies where he figured as the principal shareholder. Relating the charged and credited facts with the normative recount performed above, it must be said, then, that any event of that accusation, referring to money acquired, managed, and disposed of from the illegal sale of tobacco, attributed to the defendant prior to January 10, 2002, is atypical. In this condition is the period that begins in the year 2000 and up to that date, because he was never accused that this money came from crimes related to drugs or narcotics, the only crimes that, at that time, could form the basis of laundering, but rather the attribution is tobacco activity and its tax-free sale, which is what, ultimately, must be assessed in this case. As already stated, for the remaining crimes, the accused's brother was acquitted with finality, and the illicit act of possession of a single firearm without a permit is not an act capable of generating money laundering, even though it may have a wide punitive range in the country of origin that would allow it to be considered a 'serious crime', as it would lack a causal relationship with the obtaining of the money that is intended to be legitimized. This, it is insisted, in the case of a single weapon, because it could be different if referring to an entire arsenal, which presupposes its subsequent commercialization, which escapes the factual hypothesis of this matter. Likewise, given that the last credited facts occurred in 2007 (when he disposed of the assets), it is not possible to apply the subsequent regulations to the defendant, that is, the reforms introduced by Ley N° 8719 of March 4, 2009, which modified the content of numeral 69 of Ley Nº 8204, and which indicated that money laundering could originate from any crime punishable by imprisonment of four years or more, regardless of whether or not that was the minimum extremity of the sanction, but suffice it to be within the punitive range, because this is a later, more harmful norm. In other words, the law applicable to the facts occurring after January 10, 2002 —all the remaining accused ones— is the one that expressly states that a 'serious crime' is that which has a minimum penalty of four years. Therefore, the statement contained in the trial court's judgment is unacceptable, according to which "...By virtue of the temporality of norms provided for in the Criminal Code, the norm applicable to the facts under examination is the one in force from the year two thousand two to the year two thousand four, that is, the one that links the assets being legitimized with a serious crime, without this concept of seriousness being linked to a penalty" (cf. folio 935; emphasis supplied) because, although the applicable law was correctly selected, it was not analyzed in its entirety, that is, in relation to Article 1 of that same regulation, where the criminal seriousness was indeed linked to a penalty amount that, inclusive, the legislator expressly established must be the minimum extremity of each criminal offense.

Having extracted the two previous conclusions, it must be added that the entire reasoning of the Court, considering tax evasion on cigarettes (and not the possession of a weapon which, it is insisted, lacks a causal link to the matter at hand; nor the other acts for which the defendant's brother was tried and acquitted) as the predicate offense, was based on that: "...in the case of the crime of contraband indicated, whose maximum penalty is five years, it does meet the requirement of having a maximum penalty exceeding four years. In the Court's opinion, the norm that corresponds in our legal system to comply with the Principle of Double Criminality is Article 92 of Law No. 4755 of May 3, 1971, Tax Code of Norms and Procedures (Código de Normas y Procedimientos Tributarios) that sanctions with a penalty that corresponds to the crime attributed in the charges attributed to Nombre07 from the year (sic) that is to say that the money from the cigarette contraband attributed to Nombre07, comes from a serious crime that is also contemplated in the Costa Rican legal system, so the argument of the defense attorney that the Conventional Principle of double criminality is not met is not admissible; and on the contrary, the Court considers it a fact demonstrated certainly that the money remitted to Banco de Costa Rica by Nombre07, originated from a serious crime contemplated by the Costa Rican criminal legal system" (cf. folio 936, emphasis supplied). Note how the female and male trial judges themselves indicate that Nombre07's conduct, in the United States, has its equivalent, in Costa Rican legislation, in that crime, which has a maximum, not minimum, sanction exceeding five years, which would imply that the mentioned requirement is not met because, as will be said, the abstract minimum sanction is less than four years, none of which was mentioned by the a quo. Nor did the trial court conduct any analysis of whether Nombre07's act could be considered 'serious' in US legislation, that is, if it was sanctioned there with an abstract minimum penalty of four years, which was important for the purposes of the referred double criminality. It should be remembered that, due to the national investigative haste, the derivative process advanced more quickly than the base case and, as of the date of this decision, there is no official record that, in the United States of America, a penalty has been imposed on Nombre07 for that act of which it is also unknown if it is a 'serious crime' in the terms defined by our regulations.

To resolve that issue, it is not enough to state that Nombre01, the defendant's brother, while the national process was developing concurrently, specifically on July 16, 2012, was found guilty of the illegal possession —that is, without *prior* payment of taxes— of cigarettes, in the United States, an occasion on which the Court of Appeals for the Second Circuit granted a government appeal against the ruling of Judge Hurley of the District Court for the Eastern District, which, in turn, in January 2010, had dismissed the jury conviction he had received in May 2008. And it is not enough, because the witnesses stated that a sentence has yet to be imposed on him. Although the judgment mentioned that: *"The penalty to be imposed for this crime (…) according to Nombre18 could be* **up to** *20 years in prison"* (see page 897), nothing was said about the **minimum** limits that, under that country's legislation, this sanction—which has not yet been imposed—could have, which is highly relevant, as will be seen. Nor was any evidence provided regarding the scope of the foreign legislation, which, as determined by Article 30 of the Civil Code (applicable to this matter as provided by numeral 14 of that same regulation), which states: *"He who bases his right on foreign laws must prove the existence of these,"* should have been done, as it involves foreign regulations that the party using them is responsible for proving, which, in this case, is the Costa Rican State through the prosecuting entity, given that the defendant is protected by his constitutional state of innocence (Article 39 of the Magna Carta). Furthermore, if one analyzes the statement that served as the basis for that information from the Court, that is, the one given by Nombre19 (see pages 850 to 855), an assistant attorney in the United States, it is found that she stated, specifically, on this topic, the following: *"I am a lawyer's assistant in the United States, I am responsible for representing the Government in civil and criminal cases (...) my position is similar to a prosecutor but at the federal level, we investigate federal crimes, the prosecutor is at the state level (...) Mr. Nombre01 is accused of being part of this organization, he also* **committed violent crimes** *to help in this negotiation (...) the trial lasted (sic) until May 2008, the jury found him guilty of the conspiracy that was based on cigarette smuggling, also of possessing weapons, on the other charges the jury found him not guilty, after the jury gave the verdict, in the American (sic) system the accused can request that the charge be dismissed (...) the judge had dismissed the matter related to the conspiracy (sic), when the sentence was given, the only thing left was the charge for carrying (...) Judge Hurley eliminated (sic) the verdict saying he was not guilty of the smuggling conviction, the United (sic) States took this decision to a higher court, our procedures are carried out in the District Court, the appeal was in the Court of Appeals, in July of this year the Court of Appeals annulled (sic) Judge Hurley's verdict and the decision was obtained in the month of July 2012, the charges against him for smuggling were reinstated,* **he has not yet been given a new sentence, but he will receive this sentence for the smuggling acts***, this judicial decision establishes Nombre01 as guilty of the crime of smuggling, this decision confirmed (sic) the jury's decision, there is no new trial simply what the jury established in May 2008 is reinstated, the sentence has not yet been handed down, what he* **faces is a penalty of** **up to** **twenty years in prison** *(…) In fact, this case is not in New York City, in federal law there is a law that refers to smuggling, it is the CCTA Law, under federal law it is a crime to possess cigarettes that do not pay taxes, at the time of the case it was possessing more than 360,000 cigarettes,* **not paying taxes on cigarettes makes them illegal to possess, the possession of cigarettes that have not paid the tax is smuggling,****the act of smuggling is** up to **5 years***, but in the case of Mr. Nombre01 he was accused (sic)* **of extortion and part of the extortion was the smuggling, for the pending crime the penalty will be for extortion, they are called acts related to the crime** *(...) the crimes where the jury declared (sic) Nombre01 innocent, these cases can no longer be appealed, but I* **think*** Judge Hurley would consider the robbery and the murder as part of the conspiracy, there are laws in the United States and New York for tax evasion"* (emphasis supplied). That is, the witness relies on her own speculation and did not state, as no one inquired about the matter, the punitive limits of the crime of smuggling, mentioning, based on her position within that country's criminal process, two very different punitive amounts: five and up to twenty years, but without indicating the abstract minimum provided for in the law, which is what our law requires, and alluding to facts for which the defendant was acquitted as if he had been convicted, aspects that not only speak to her credibility but also to the impossibility of using her testimony to substantiate what is lacking in our jurisdiction, as it would violate the principle of res judicata (cosa juzgada). Indeed, if it is valid in the United States of America to use the circumstances of a person's acquittal as relevant facts to impose a penalty for another crime, the same cannot be said in Costa Rica, where numeral 8.4 of the American Convention on Human Rights (not signed by that country) states: *"An accused person acquitted by a final judgment shall not be subjected to a new trial for the same acts,"* so the abstract amount of the penalty to be imposed could not consider aggravating factors derived from conduct for which he was acquitted. In any case, the reference made by the judges, as already stated, was only to whether the equivalent act, in Costa Rica, was a serious crime, and they assumed it was, alluding to a maximum penalty of five years. However, this information, underlined above in the transcription, seems to be due to an error by the trial court, since Article 92 of the *Code of Tax Norms and Procedures* (amended by numeral 2 of Law No. 7900 of August 3, 1999, and before the reform by Article 1 of Law No. 9069 of September 10, 2012, *"Law for the Strengthening of Tax Management",* later and more prejudicial), stated: *Article 92.- Inducing error in the Tax Administration. When the amount of the* ***defrauded amount*** *exceeds* ***two hundred base salaries***, *anyone who induces error in the Tax Administration, through data simulation, distortion, or concealment of true information, or any other form of deception suitable to induce it into error, with the purpose of obtaining, for oneself or for a third party, a patrimonial benefit, an exemption, or a refund to the detriment of the Public Treasury, shall be punished with imprisonment of* ***five to ten years***. *For the purposes of the provisions of the preceding paragraph, it must be understood that: a) The defrauded amount* ***shall not include interest***, *fines, or punitive surcharges. b) To determine the mentioned amount, if it concerns taxes whose period is annual,* ***the defrauded quota in that period shall be considered***; *for taxes whose periods are less than twelve months, the defrauded amounts shall be added during the period between January 1 and December 31 of the same year. For other taxes, the amount shall be understood to refer to each of the concepts for which a taxable event is susceptible to determination. The fact that the subject remedies their non-compliance, without any requirement or action by the Tax Administration to obtain the repair, shall be considered an exculpatory legal excuse. For the purposes of the preceding paragraph, an action by the Administration shall be understood as any action carried out with the notification to the taxpayer, leading to verifying compliance with the tax obligations related to the tax and period in question"* (emphasis supplied). That is, this regulation did contemplate, as a minimum penalty, five years of imprisonment, which denotes an error in the reasoning transcribed in the trial judgment (since that amount is mentioned as the maximum penalty) but also an omission, since, as the appellant rightly points out, not only is there no reasoning, but worse still, there is no evidence whatsoever, neither expert nor of any other kind, that indicates **what the amount of the unpaid taxes to the United States Government was**, which is the only illicit aspect of that money (and not the entirety of the income arising from the cigarette sales), without it being possible to presume (against the principle of innocence) that it is all the transferred money, since the sale of tobacco or cigarettes, like any commercial activity, generates some profit, after taxes are paid, in addition to the fact that, as established by the same declaration of Nombre19 (see page 854) and Nombre20 (page 872), the money transferred by Nombre01 also came from various other activities he had in that country. Having reached this point, it is necessary to point out how controversial it is, in comparative law, to consider **tax evasion as a predicate offense (delito previo)**. In this regard, it has been stated: *“The fiscal voracity of developed States, especially European ones, has imposed a gradual and perverse shift of the crime of money laundering from its original strict meaning, that is, from the intent to criminally prosecute the legitimization of assets originating from certain criminal activities –drug trafficking, corruption, and organized crime, above all– to serving as an instrument of tax control and collection (…) it has reached the point of admitting that for the crime of money laundering to be committed it is sufficient that the assets originate from any crime –which does not even have to be serious– (…) and, furthermore, that it is not necessary for the assets to come from a prior criminal activity that acts as the cause or source of their obtaining, but rather it is sufficient that they have not been subject to the corresponding taxation to be able to subject them to the criminal regime of money laundering. This way of understanding the crime (…) is politically and criminally incoherent and technically inconsistent, because (…) it not only ignores the political-criminal reason for these crimes and converts a large part of the population into money launderers, thus confirming, incidentally, the preventive ineffectiveness of these criminal types, but it is also* **based on an interpretation contra legem of the typical requirements that the crimes subject to laundering have a criminal****origin*** *(…) The technical and political-criminal basis of money laundering types is that the typical element* **'assets originating from a crime'** *(…)* **means that the cause for obtaining the assets is a prior crime, that is, prior to their obtaining and that, therefore, laundering does not target assets that, once lawfully obtained, are simply withdrawn from compliance with their tax obligations***, because these assets do not ‘originate from a crime’ and, moreover, are usually patrimonially indistinguishable from those that have been subject to taxation. The technically and politically-criminally decisive element for the typicity of laundering is, therefore, that the origin of the assets, that is, the cause of their obtaining, are predicate offenses (delitos base) –drug trafficking, bribery, kidnapping…– distinct from tax fraud, because tax fraud in itself does not generate the assets, it is not the origin of the assets, but rather, simply conceals lawfully obtained assets from the Public Treasury”* (Cf. Nombre11. *Technical and political-criminal reflections on the crime of money laundering*. Cuadernos de Política Criminal No. 91, 2007, pp. 72 and 74. Also at the following electronic address of Universidad Externado de Colombia: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98). A discussion that is captured by national doctrine in the following terms: *"...the legislations of some countries like Spain [In Spain the 2010 law (...) expressly admits that the defrauded tax* *quota may constitute the material object of money laundering] and Germany expressly declare that profits generated by a tax crime can be a preceding act for the crime of money laundering. In France, Belgium, and Italy it has been jurisprudence that has stated that a tax crime can be a preceding act in laundering. In Switzerland it has been doctrine (...) Part of the Spanish doctrine [Nombre11 (...) Cobo del Rosal/Zabala López Gómez (...) Quintero Olivares] believes that the crime of tax fraud cannot be a prior act for the crime of capital legitimization, because* **the quota to be paid for tax purposes does not originate, nor does it have its origin, in a crime***, but rather the taxes were lawfully acquired by the perpetrator (...) Nombre21 adds that the crime of tax fraud is a crime of omission, given that crimes of omission cannot be prior acts (...) because a causal relationship cannot be established between the omitted action (payment of taxes) and the assets already incorporated into the subject's patrimony by virtue of a prior, non-criminal act. According to this author, one could not resort to* **hypothetical causality in the sense of considering them illicit due to the circumstance that if they had carried out the required action (payment of taxes), the part of the patrimony affected by compliance with the obligation would not form part of the active subject's patrimony. According to this thesis, the profit (sic) from a licit activity does not become illicit by the mere circumstance of not paying taxes on it*** or because it is hidden to avoid paying taxes (...) Article 174 of the Russian Penal Code (in force since 1996), based on the thesis that the person obliged to pay taxes has lawfully earned their resources, considers that there is no money laundering in the case where the prior act is tax fraud, because there are no resources coming from a crime"* (Nombre14. *The crime of capital legitimization*. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 83-85; emphasis supplied). The last author addresses the issue, for national legislation, considering that a distinction must be made between tax fraud and the withholding of taxes collected and not delivered to the Treasury, but concludes by stating: *"The amount of the defrauded taxes is an amount of money that is a proportion applied to the tax base (levy). It is true that the agent, as a product of their fraud, receives nothing, but rather fails to pay the corresponding tax quota. But this tax quota not paid by virtue of the tax fraud, which is measured in money, is a suitable object for the crime of laundering"* (Nombre14. *The crime of capital legitimization*. Editorial Jurídica Continental, San José, 2012, 1st edition, p. 87). From these positions, it is evident that the solution is not, therefore, settled and was absolutely overlooked in the trial court's ruling, despite the fact that the national typical formula is very similar to those discussed by foreign authors in providing that the assets "…**originate** *in a serious crime*," without, then, the obtaining of the assets being the tax crime, but rather the tobacco sales activity, even if the profits from it were magnified by the non-payment of those taxes, which is a different matter.

Notwithstanding the foregoing, even if it were accepted that a tax crime can be a 'predicate offense' for money laundering, it would always be required not only that the tax crime has, in Costa Rica, an abstract minimum penalty of four years (according to the legislation we are applying, which is not the same as that commented on by the Costa Rican professor) but also that, in such a situation, it be specified whether the tax liability, left unpaid in each fiscal period, exceeds the amount of base salaries that make that penalty possible. In the view of this Tribunal, without entirely discarding the profound dogmatic objections referred to above, what prior tax crimes pose as a basis for money laundering are other issues: on the one hand, of an evidentiary nature, to distinguish the net flow of capital transmitted, mostly originating from a licit activity, from the —illicit— portion that should have been taxed, a distinction that was not made in this case, and, on the other hand, regarding the manner in which the intent (dolo) of the active subject is reconstructed, a posteriori, given the general licit activity that originates the capital on which the taxes were not paid: "The problem (…) is not so much the origin or the criminal provenance of the assets, but rather the difficulty of specifying and individualizing them within the taxpayer's patrimony (something that, in principle, will occur in all cases where what is obtained is money, the fungible good par excellence). The taxpayer is liable for the tax debt with all the assets of his/her patrimony (as in punishable insolvencies), but it is practically impossible to determine which assets are those that become tainted. What is inadmissible is the theory of total contagion, according to which the taxpayer's entire patrimony becomes tainted. That would be excessive and disproportionate. Anyone conducting business with him/her would be committing a crime of money laundering, if all its elements concurred, especially the subjective ones (knowledge of the origin, or recklessness at the time of receipt). In every causal relationship, the cause must precede the result; in this case, it is required that the tax crime precede in time the tax liability that constitutes the material object of the money laundering crime. There is no problem when the moment of commission of the crime that generates the laundered assets can be determined with certainty; for example, if it involves drug trafficking in which the moment of sale and the amount obtained can be determined. However, tax crime presents peculiarities that can generate practical difficulties that are hard to resolve. The moment of tainting of the assets making up the defrauded tax liability will occur when the administrative deadlines established for declaring them to the Tax Administration expire. Until those deadlines end, there is a period of time during which it is not possible to determine whether it exists or not. So indicates Nombre22, "Lavado de dinero y delito fiscal. Posibilidad de que delito fiscal sea el delito precedente al de blanqueo," La Ley: Revista jurídica española de doctrina, jurisprudencia y bibliografía, Nº 5, 2005, pp. 1402-1410. In the same vein, Nombre23, Blanqueo de capitales, cit., pg. 163 (…) Nombre24, "Geldwäsche," cit., nm. 28. Thus Nombre25, "Delito fiscal y blanqueo: dos sanciones para una actuación," cit., pg. 5." (Cfr. Nombre15. El delito fiscal como actividad delictiva previa del blanqueo de capitales. In: Revista Electrónica de Ciencia Penal y Criminológica. 13-01, 2011. Also at the following internet page: http://criminet.ugr.es/recpc/13/recpc13-01.pdf). In this matter, it has already been said that there was no evidence establishing the specific years in which each sum of money was produced and in which the payment of the tax was omitted, which was necessary because our criminal statute refers to base salaries, which change annually, and it was therefore necessary to determine the year of each monetary flow and what portion of it was exclusively from the evasion (i.e., excluding the licit profits), in order to make the parallel statutory classification, something that was neither done in the trial court judgment nor, even worse, proven. Furthermore, the Tribunal took all the money brought into the country, without making any division by period, which caused it to account for amounts brought in when that conduct was not a crime, i.e., before 2002, as it stated: "...the money sent by Nombre07 from the year two thousand to his accounts at Banco de Costa Rica and in August 2004 to the account at that same bank of the accused Nombre01 was the product of the sale of untaxed cigarettes, which is a federal crime in that country" (cfr. folio 936). On another note, what was brought in before January 10, 2002, should first have been separated out, since all that money could not be considered the product of money laundering, even if it originated from a crime, considering that, until that date in our country, only assets, in a broad sense, originating from drug trafficking could be classified as that conduct, and it has already been seen that this was not the case. Then, of all the money brought in from the year 2002 onwards, it was necessary to establish how much came in during each annual period, as this was necessary for the purposes of determining the annual changes in the amount to carry out the statutory classification for that crime, and thus determine if it exceeded the referenced base salaries and, finally, to prove, undoubtedly, the proportion of that money that was the product of tax evasion, and which was not, in order to see if the former exceeded the Costa Rican statutory requirement that they amount to a certain sum given that it was only that proportion that allowed the statutory classification. None of this was elaborated in the judgment and, much less, is there evidence of the amount left unpaid in taxes: "…the tax crime differs considerably from other predicate crimes of money laundering (for example, drug trafficking). Its peculiarities will require very intense evidentiary activity, so that the existence of an unpaid tax liability exceeding the amount established in the Penal Code can be affirmed. Unlike what the jurisprudence considers regarding drug trafficking crimes, in a tax crime it will be necessary to prove the specific criminal act that generates the laundered assets. This is because the commission of a tax crime requires proving, in a specific manner, various statutory elements of a temporal and personal nature. Let us remember that the existence of the defrauded tax liability must be verified within strictly established temporal deadlines (…) Proving these temporal periods is essential for the existence of the tax crime. And it must be done clearly because, as we know, the amount must be determined with regard to each tax and tax period, without the possibility of adding different amounts that are below the minimum (…) to turn what are merely administrative infractions into a crime…" (Cfr. Nombre15, Isidoro. El delito de blanqueo de capitales. Aranzadi, Spain, 2012, pp. 426-427). But, as if the foregoing were not enough, it turns out that, as the appellants rightly point out, it was not contemplated that it was not that law that allowed dual criminality to be established. The Código de Normas y Procedimientos Tributarios, in its Article 1, states: "Campo de aplicación. Las disposiciones de este Código son aplicables a todos los tributos y las relaciones jurídicas derivadas de ellos, excepto lo regulado por la legislación especial" (bold added). The prior acts imputed to Nombre01, in the United States, allude to smuggling, i.e., having come into illicit possession of cigarettes, without paying the prior taxes. In this regard, the trial court judgment states: "In the year 2000, the District Attorney's Office for the Eastern District of New York initiated a formal investigation against Nombre07, for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Law), based on an illegal sale of cigarettes, which were sold without the prior payment of taxes (...) Nombre01 is being prosecuted for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Law), arising from his control over a tax-free cigarette distribution business, which operates on an indigenous reservation located on the Poospatuck Reservation, in the Town of Mastic, State of New York. At that location, company P is situated, which sells large volumes of tax-free cigarettes, nationally and through the website www.smokersden.com. It is also indicated that the indigenous reservation is home to the Unkechaug Tribe, recognized by the State of New York, although not by the Federal Government, and since Nombre01 is the wife of Nombre07, a Native American member of the Unkechaug Tribe, and living on the Reservation […], she has the right to operate the cigarette store within the Reservation, but Nombre01 does not (...) This information, moreover, is cross-referenced and coincides with the document identified as 'Introduction of all charges' (...) In said document, the Federal Government establishes how Nombre08 was a company formed under the laws of the State of New York, with a principal place located at 9 Squaw Lane, Mastic, New York, and was a company that sold cartons and packs of cigarettes that do not evidence the payment of taxes and duties applied by the State of New York; it also operated through the website smokersden.com, the above coinciding with the information provided by the United States Department of Justice to the Government of Costa Rica (...) the significance of Nombre08 regarding the criminal activity of Nombre01. Thus, as the witness indicated, Nombre08 was a company dedicated to the sale of untaxed cigarettes, an exemption from the payment of taxes whose limitation was that the cigarettes could only be sold inside the reservation, to indigenous subjects, for their personal consumption, and not for resale. Furthermore, the company could only be operated by an indigenous person, and Nombre01, wife of Nombre07, being a member of that indigenous community, was therefore the person authorized for the sale of cigarettes. For his part, witness Nombre20, declared how (sic) on behalf of the City he filed a civil claim against Nombre07 and Nombre01, since the store Nombre08 sold cigarettes that had not paid state taxes, for this reason they were very cheap cigarettes, to the point that people came from New York City (125 miles from the reservation), bought the untaxed cigarettes, loaded them into their vehicles, and took them back to New York, to later resell them in grocery stores, which generated significant losses for the City due to uncollected taxes. He also explained, how (sic) Nombre01's business advertised on the internet, through newspapers, and shipments of cigarettes were made by mail, where even following up on the company, it was determined how Nombre08 purchased millions of cartons of cigarettes per year, which had not paid the taxes, and were resold under identical conditions, that is, without the payment of taxes required by the State (...) Nombre08 was a company that sold that product without taxes, according to Nombre20 (sic) protected by a law that the Government issued—a non-existent law—and where the cigarette cartons were purchased directly from the distributor without the tax stamp, then taken to the reservation, and sold through Nombre08 without the payment of taxes, an absolutely illegal sales activity under federal and state law, since the commercialization of that product, in any case, was not only inside the reservation, or to members of the indigenous community, but rather, and this is understood from Nombre20's testimony, it was a national sale (...) What was explained by Nombre20 will be seen to be endorsed in the ruling of the Court of Appeals, thus, for the Court of Appeals, the CCTA defines that any person who intentionally ships, transports, receives, possesses, sells, distributes, or buys contraband cigarettes violates the law. Contraband cigarettes are defined as a quantity exceeding sixty thousand cigarettes that has no evidence of the payment of taxes. For its part, this Court analyzes New York Tax Law 471, indicating that a tax must be paid on all cigarettes possessed for sale, and it must be assumed that all cigarettes within the State are subject to taxes. Also, the Court analyzes how, over the years, the State of New York has been involved in a dialogue with Native American retailers, and with the Federal Courts, regarding the possibilities of the State of New York imposing taxes on cigarette sales on reservations, which has generated significant conflicts; however, the tribe's immunity prevented the State from suing Native Americans who refused to pay the tax, even when the State attempted to adopt drastic measures to achieve the payment of taxes, such as intercepting and seizing the cigarette shipments bound for the indigenous reservations, the Native Americans resisted, engaging in acts of violence and civil disturbances on New York highways, which, and this is inferred from the entirety of this resolution, fostered a policy of tolerance regarding the payment of tax on cigarettes sold on the reservations. However, the Court of Appeals is clear and categorical, establishing that the regulation contained in New York Tax Law 471 always remained in effect. For the Court, the policy of tolerance in no way signified (sic) the State of New York's choice not to apply its tax laws, but rather represented a concession by a besieged State given the difficult and dangerous application of state law, given the complex jurisdictional and political problems surrounding cigarette sales on the reservations, and how volatile prosecutions for smuggling would be" (cfr. folios 888 et seq.). That is, the accusation is not (only) for having sold cigarettes and not paying taxes on the sales, but for having obtained shipments of cigarettes without the stamp (prior to those sales) indicating that, in turn, the distributors had paid the prior taxes. This means that, for dual criminality, we are not talking about what in our system would be an evasion of the sales tax, but rather about coming into possession of the object, without the payment, prior to the subsequent sale, of taxes. It is the equivalent, in our context, of import or customs taxes. That conduct is provided for, in Costa Rica, in a special law that, therefore, prevails over that general regulation, even if they concur with other tax violations relating to the sales tax. This is the Ley General de Aduanas Nº 7557 of October 20, 1995 (published in La Gaceta 212 of November 8, 1995, and in force on the date of the accused acts) which establishes: "ARTICULO 1.- Ámbito de aplicación. La presente ley regula las entradas y las salidas, del territorio nacional, de mercancías, vehículos y unidades de transporte; también el despacho aduanero y los hechos y actos que deriven de él o de las entradas y salidas, de conformidad con las normas comunitarias e internacionales, cuya aplicación esté a cargo del Servicio Nacional de Aduanas" (bold added), with numeral 223 adding: "Relación con delitos tipificados en otras normas tributarias. Si las conductas tipificadas en esta ley configuran también un delito o una contravención establecidos en la legislación tributaria, se aplicarán las disposiciones especiales de la presente ley siempre que esas conductas se relacionen con el incumplimiento de obligaciones tributarias aduaneras o los deberes frente a la autoridad aduanera" (emphasis added). This legislation established customs crimes: at an initial stage, from its entry into force in 1995 until the year 2003, and subsequently from that date, when a reform was enacted, until the present. Since the accused here was improperly attributed with having received money from his brother, from the year 2002, which has already been said to be atypical conduct given that the capital arose from alleged crimes unrelated to drug trafficking, the legislative changes made in customs legislation must again be considered. Thus, in 2002 and up to 2003, the original Ley General de Aduanas was applicable, and from that date until 2007 (when the cycle of the accused acts closes), the regulation currently in force would govern. The first regulatory version (applicable for the period January 2002–August 2003) provided: "ARTÍCULO 214.- Delito básico. Será penado con prisión de uno a tres años y multa equivalente a dos veces el monto de los tributos dejados de percibir, con sus intereses y recargos, quien, mediante simulación, maniobra o cualquier otra forma de engaño, eluda o evada total o parcialmente el pago de la obligación tributaria aduanera, siempre que el valor aduanero de las mercancías supere los cinco mil pesos centroamericanos. ARTÍCULO 215.- Casos específicos de defraudación fiscal aduanera. Incurrirá en las penas señaladas en el artículo anterior, siempre que el valor aduanero de las mercancías supere los cinco mil pesos centroamericanos: a) Quien, sin autorización del órgano competente, dé un fin distinto del dispuesto en la norma autorizante, a mercancías beneficiadas con exención o franquicia o que hayan ingresado libres de tributos. b) Quien, utilizando o declarando información falsa, solicite u obtenga un tratamiento aduanero preferencial. c) Quien, utilizando o declarando información falsa, justifique el cumplimiento de sus deberes, obligaciones o requisitos en su condición de beneficiario o usuario de un régimen o modalidad aduanera, para solicitar u obtener un tratamiento aduanero preferencial. d) Quien, simule, total o parcialmente, una operación de exportación o importación de mercancías o altere la descripción de algunas, con el fin de obtener en forma ilícita un incentivo de carácter aduanero o un beneficio económico. e) El funcionario, el empleado público o el funcionario de la fe pública, que falsamente certifique o haga constar que se satisfizo total o parcialmente un tributo. ARTÍCULO 216.- Agravantes. La pena será de tres a cinco años y la multa equivalente a tres veces el monto de los tributos dejados de percibir, con sus intereses y recargos, cuando, en alguno de los dos artículos anteriores concurra alguna de las siguientes circunstancias: a) Intervengan en el hecho tres o más personas, en calidad de autoras.

• b)A public official participates as the perpetrator, instigator, or accomplice, in the exercise of their functions, on the occasion of them, or through abuse of their office" (the bold text is not part of the original text). But Article 1 of Law No. 8373 of August 18, 2003, modified that regulation, so the law in force during the other period of the charged acts (August 2003 to 2007) stated the following: "Article 214.— Customs Tax Fraud. Whoever, using cunning, deceit, or trickery, the simulation of false facts, or the distortion or concealment of true facts, used to obtain a financial benefit for themselves or for a third party, totally or partially eludes or evades the payment of taxes, shall be punished with a fine of twice the amount of the uncollected taxes plus their interest and a prison sentence, in accordance with the following: a) From six months to three years, when the amount of the uncollected taxes exceeds five thousand Central American pesos and does not exceed fifteen thousand Central American pesos. b) From one to five years, when the amount of the uncollected taxes exceeds fifteen thousand Central American pesos. The amount of the uncollected taxes shall be determined in court through expert assistance, in accordance with the applicable regulations. Article 216.— Aggravating Circumstances. The penalty shall be from five to nine years of imprisonment and a fine equivalent to two times the amount of the uncollected taxes plus their interest, when in any of the circumstances set forth in Article 214 of this Law, at least one of the following conducts or situations concurs: a) Two or more persons participate in the criminal act as perpetrators. b) A public official or an auxiliary of the public customs service participates, as perpetrator, accomplice, or instigator, in the exercise of their functions, on the occasion of them, or through abuse of their office. c) Non-existent natural or legal persons are listed as consignees in the documents relating to the dispatch of the goods. d) It is perpetrated, facilitated, or its discovery is avoided, through the use of violence or intimidation. Article 220-bis.— False Customs Declaration and other customs-related crimes. Shall be punished with imprisonment from two months to three years: a) Whoever introduces goods into the national customs territory through a false declaration related to the regime, classification, quality, value, weight, quantity, and/or measurement of such goods or through a lower payment of taxes than those legally owed, or both. b) Whoever clandestinely brings in goods in transit, without paying the corresponding taxes. c) Whoever transports, stores, acquires, sells, donates, conceals, uses, gives or receives in deposit, destroys or transforms, goods introduced into the country evading customs control. d) Whoever substitutes goods from the customs warehouse, transport units, transient parking areas, or port zones." Note that under none of those laws, the earlier or the later one, and under none of the simple criminal modalities, would the requirement of the prior serious crime be met because, in our law, none of those conducts had, on the date of the charged acts, a minimum abstract penalty of four years. The only exception is the aggravated conduct contemplated in numeral 216 of the last cited customs legislation, but the framing of dual criminality under that criminal type could not be made because Nombre01 was accused and sentenced for an individual activity, without it being accredited that he acted jointly, with violence, or using non-existent legal persons. Rather, when he was accused in this way, he was definitively acquitted, this judgment being the only one that has value, as in our legal system, dismissed conducts cannot be contemplated for punitive purposes of other crimes. To continue with the chain of omissions, both probative and analytical, the Trial Court also failed to consider, when analyzing the issue of dual criminality (even under the regulations it did), the matter of the statute of limitations for the criminal action in these crimes, which was necessary because, as already advanced, the validity of the criminal action is inherent to dual criminality: “In the opinion of a sector of the doctrine, the statute of limitations for the prior act from which the assets originate produces the rupture of the connection between the asset and the act that originates it. At the moment when a crime can no longer be prosecuted due to its statute of limitations, all assets originating from it will be decontaminated. It is not reasonable, it is argued, to prolong the criminal origin beyond the period in which the crime is prosecutable. It is not correct to sanction a person for the laundering of assets proceeding from an already time-barred crime, whose responsible parties cannot be criminally sanctioned. Otherwise, there would be a disproportionate extension of the time during which the assets have a contaminated character, so that if a limit is not set, such as the statute of limitations of the prior crime, they would continue to maintain that character indefinitely” (Cfr. Nombre15. El delito de blanqueo de capitales. Aranzadi, Spain, 2012, pp. 428-429). And, regarding this issue, tax legislation has special rules, different from the rest of ordinary procedural legislation. Thus, in the Código de Normas y Procedimientos Tributarios (legislation under which the Trial Court framed the dual criminality), the statute of limitations period for the criminal action is set at three years in most cases and at five years if the case is based on false data in tax declarations, adding: Article 52.- Computation of terms. The statute of limitations term must be counted from January first of the calendar year following the one in which the tax must be paid. (...) Article 91.— Statute of limitations rules. The statute of limitations for tax crimes shall be governed by the general provisions of the Código Penal and those of the Código Procesal Penal. (Ref. by Ley 7900 of August 3, 1999)” (the highlighting is not from the original text). On the other hand, in the Ley General de Aduanas the statute of limitations period for the criminal action is four years, according to numeral 62. From this perspective, if Nombre26 was arrested on August 2, 2004, and has been attributed with sending money to Nombre01 since long before (although the latter used it later), the analysis of each monetary flow and the annual evaded quota was essential, for purposes of both objective criminality (tipicidad objetiva) and the validity of the criminal action according to the computation of the statute of limitations periods, none of which was done in the trial court's resolution nor, due to the lack of annual accounting data, can it be done now. It has also been stated that no evidence was provided regarding the legal rules of punishment, much less those of the statute of limitations, for that event in North America. That would be sufficient to, even under the first typical framing made by the Trial Court, which was said to be incorrect, resolve the merits of the matter which, with greater reason, can be done with the other framing referred to. Ultimately, without making further analysis and accepting, inclusively, the proven facts and the probative and legal analysis carried out in the trial court's judgment (which, it is insisted, is not entirely correct and, much less, complete), objective criminality (tipicidad objetiva) would not exist, and this implies that the appeals must be accepted and the accused must be acquitted from this venue, since a remand would lead nowhere, given that the foregoing arises from a legal analysis and absence of proof that cannot be brought at this procedural stage.

§3. Subjective Elements of the Type: On the other hand, when numeral 69 of the Ley de Psicotrópicos, applicable to the facts, provided: "Shall be punished with a prison sentence of eight to twenty years: a) Whoever acquires, converts, or transmits assets of economic interest, knowing that these originate from a serious crime (delito grave), or performs any other act to conceal or cover up the illicit origin or to help the person who has participated in the infractions to elude the legal consequences of their acts. b) Whoever conceals or covers up the true nature, origin, location, destination, movement, or rights over the assets or the property thereof, knowing that they proceed, directly or indirectly, from a serious crime (delito grave). The penalty shall be ten to twenty years of imprisonment when the assets of economic interest originate from any of the crimes related to the illicit trafficking of narcotic drugs, psychotropic substances, money laundering (legitimación de capitales), diversion of precursors or essential chemical substances, and related crimes" (the highlighting is supplied), it was demanding direct intent (dolo directo) of the first degree. It is known that there are three types of intent (dolo): direct of the first degree; indirect or direct of the second degree, also known as of necessary consequences; and eventual intent (dolo eventual). In principle, any intentional act can be committed through any of these forms of intent, unless the legislation expressly establishes the contrary. Thus, the legislative use of the forms ‘knowing’ or ‘knowingly’ implies that direct intent is required: "When the legislator uses expressions such as 'knowingly', it accentuates the cognitive side of intent and implies, with respect to the specific element for which it requires direct intent of the second degree (sic), a renunciation of punishment for eventual intent. Articles 69 of the Ley de Psicotrópicos (...) require 'the knowledge' that the object of economic interest comes from a specific crime (...) It is enough that the agent knows the factual circumstances that characterize the prior act. It is not necessary that they know the particularities of the prior act…" (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 125-126, bold text supplied). In the Court's opinion, there may be, in the text transcribed before, some confusion in the denomination of that emphasis on the 'knowledge' element (since it is pointed out that it is a direct intent of the second degree, when it is of the first, because the second degree is the so-called 'intent of necessary consequences' where knowledge is not of as much interest, but rather will predominates, cfr. Nombre14. El dolo. Editorial Juritexto. San José, 1999, pp. 268-270). Despite that terminological difference, we agree with that author, and with an important doctrinal sector cited in previous references, that the expression excludes other forms of intent (e.g., eventual intent) and admits only direct intent, which definitively is not a mere suspicion: “…the cognitive element of intent is not a mere suspicion about the concurrence of the objective elements of the type, nor, at the opposite pole, does it require certainty in this regard (...) It is not, therefore, necessary to describe intent (...) to resort to affirmations incompatible with legal certainty and with the criminal concept of intent, such as the very frequent one in doctrine and jurisprudence that it is sufficient to have knowledge that the assets 'proceed from a criminal activity in a generic way' as if our criminal law were about the perpetrator and not the act (...) intent in the crime of money laundering (blanqueo de capitales) always targets crimes and not generic criminal activities” (Cfr. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the following website: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pp. 76-77). With that warning, the doctrine indicates that, being a normative element, this intent has two substrates, one factual and one evaluative: “The factual substrate is composed of the facts constituting a criminal activity. The perpetrator must know those factual circumstances perceptible by the senses, which must serve as a basis for assessing their criminal nature. It is, as with the descriptive elements of the type, a matter of knowledge of the factual circumstances (...) The perpetrator of the crime of money laundering (blanqueo) must carry out an assessment of the facts they have perceived. From such an assessment, it must be derived that such facts constitute criminal conduct” (Cfr. Nombre15. El delito de blanqueo de capitales. Aranzadi, Spain, 2012, pp. 660-661). This is important because, from the factual substrate, the activity carried out by Nombre01 in the United States, of selling tax-free tobacco to non-indigenous people, was done publicly, advertising through an internet page, with deliveries to various parts of the Union through that country's postal mail, there were multiple businesses of the same type on the same indigenous reservation, and no person had even been prosecuted for such activity, as unanimously derived from the oral evidence received at trial. Ergo, from the factual substrate, Nombre01, who had gone to work with Nombre01 in that business, had no element to even doubt that a criminal activity was being carried out, especially since the remittance shipments were made through banks, both in the United States and through a state bank in Costa Rica, which imply important controls to prevent the movement of illicit money. From the evaluative substrate, no additional data arise either, because if the original activity was apparently lawful, there was no reason to question its unlawfulness. Moreover, the doctrine insists that this intent must exist at the moment of acquiring the asset, that is, it must be current (actual), and it is insufficient for it to exist at other moments: “The perpetrator must know the origin of the object at the moment of obtaining it. Subsequent knowledge ('dolus subsequens') is not criminally relevant ('dolus subsequens non nocet') nor does it generate a guarantor position, according to article 18 of the penal code. Acquiring the object without knowing its illicit origin implies acquiring possession in good faith, which excludes the crime of money laundering (legitimación de capitales) (...) they are not permanent crimes" (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 125-126, bold text supplied). “Dolo must be antecedent or concurrent with the action. Subsequent dolo is irrelevant…” (Nombre27. El marco jurídico del blanqueo de capitales: aspectos penales y administrativos. At the following electronic address: http://www.datadiar.com/actual/novedades_05/penal/blanqueo/d_may_02c.htm). “Dolo must exist during the performance of the behavior, that is, during its execution. Therefore, dolus antecedents, that is, a dolo prior to the commission, is not sufficient (...) just like dolus antecedents, it is accepted that dolus subsequens or dolo subsequent to the act, is not dolo in the sense of Criminal Law. From the requirement that the knowledge corresponding to dolo be current, it follows that knowledge subsequent to the performance of the conduct has no criminal legal consequence (...) This is a mention expressly contained in the Vienna Convention of 1988 which, in its article 3.c).i), refers to 'the acquisition, possession or use of property, knowing, at the time of receipt, that such property proceeds from one or more of the typified offences…' The same reference is contained in the Palermo Conventions (art. 6.1.b.i) (...) It is irrelevant from a criminal point of view if the knowledge of the criminal origin of the assets is obtained after carrying out the money laundering (blanqueo de capitales) actions. The principle dolus superveniens non nocet is fully in force (...) " (Cfr. Nombre15. El delito de blanqueo de capitales. Aranzadi, Spain, 2012, pp. 662-663). Therefore, it is not acceptable that the Trial Court stated: "Although in the fifth fact of the accusation, the Public Ministry includes the remittance from Nombre08's account from the United States of the sum of Sixteen million seven hundred ninety-three thousand, nine hundred eighty dollars, to the dollar savings account in the Banco de Costa Rica of Nombre01. These shipments, as can be seen in Appendix No. 4 of Report No. 212-DEF-R-140-11 from the Section of Economic and Financial Crimes of the O.I.J., began in October of the year two thousand and extended without any interruption during the years, two thousand one, two thousand two, two thousand three until March 19, 2004. It must be taken into account that on that date Nombre07 had not been arrested in the United States, on the charge of cigarette smuggling, and therefore it could not be affirmed with certainty that his brother Nombre01 knew of the illegality of that business that generated -in its entirety- the funds remitted to Banco de Costa Rica. Because knowledge of the illicit origin of the laundered funds is necessary, for purposes of the criminality (tipicidad) of the crime, the Court should have considered that knowledge in relation to those money shipments arises from the arrest of Nombre07 in New York, on August 2, 2004, so only one deposit, the one made on August sixth of that same year and received in Nombre01's account, can be considered tainted by the knowledge of the illegality of its origin. It should be noted, as it is of interest at this point, that this last deposit has different conditions in relation to all the previous deposits that can be seen in Appendix 3 cited, namely: the amount of four million four hundred thousand dollars far exceeds the previous ones whose figures usually range between two hundred and three hundred thousand dollars -with the exception of a deposit made by the fund operator Lloyd of two million five hundred thousand dollars in November of two thousand two- and represents a quarter of all deposits made over three years and ten months in that savings account. It differs from the preceding deposits in that the money is not remitted by Nombre08, but by TMG Nombre16 Partners." The explanation for this change in the remitter stems from the timing of the deposit, four days after the illicit nature of his commercial activity carried out through Nombre08 "becomes official" with the arrest of Nombre01. However, the identity of Nombre01 is also present in this deposit, since his initials Nombre16., which according to witness Nombre20, Nombre01 imposed on all his belongings and businesses so they would be identified with him, are in the depositor's name, so it cannot be denied that its origin is related to Nombre01 and his illicit activity, known at that time by the accused Nombre01. The Court also considers that <span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">at the moment of making the redemption of the funds deposited by Nombre01 in the Banco de Costa Rica, ten days after the arrest of Nombre01, the accused Nombre01 knows the origin of the funds</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> and with that knowledge agrees to erase all trace of his brother's investments and banking activity in the Banco de Costa Rica, since as indicated in Report No. 212-DEF-R-140-11 of the Economic and Financial Crimes Section of the O.I.J., and can be seen at</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> folio 356 verso of the main case file, up to the sum of five thousand eight hundred dollars deposited in an account of Nombre01 were deposited, together with the fund for ten million three hundred fifty thousand two hundred forty-eight dollars in the savings account of Nombre01 to then establish a new Growth Fund in dollars in the name of Nombre01 at the Banco de Costa Rica. To conclude then that all the funds remitted by Nombre01 to his account and</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> that constituted the monies of the Fund in whose redemption both Nombre26 and Nombre01 participated and the four million four hundred thousand dollars that were remitted after the arrest of Nombre01 came from the illicit activity of cigarette smuggling by Nombre01, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">a situation that was known by Nombre01 at the moment of receiving and </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">maintaining in his account those funds and upon participating in the redemption</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> of the Fund</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> Growth in dollars of the Banco de Costa Rica</span><span style="line-height:150%; font-family:Arial; font-size:11pt">" </span><span style="font-family:Arial">(cf. folios 938-939, emphasis supplied). Note that although the trial judges initially stated that it could not be considered that the defendant knew that all the money he received from his brother, before the latter's arrest in the United States, came from a crime, immediately afterwards they make the knowledge of intent arise, no longer in the acquisition but in the maintenance, in his account, of those remittances, through the redemption of the Fund and in the subsequent investments, by which they mean that although the defendant, upon receiving the money, did not have intent (knowledge of the predicate crime), he later acquired said knowledge and it is for that supervening circumstance that they make the reproach, stated thus, retroactive, which is nothing other than applying the issue of subsequent intent (dolo subsecuente) which, as stated above, is not acceptable. It is true that the commented article establishes: "</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">a) Whoever acquires, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">converts or transfers</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> assets of economic interest, knowing that these originate from a serious crime, or performs any other act to conceal or cover up the illicit origin or to help the person who has participated in the offenses to evade the legal consequences of their acts. b) Whoever conceals or covers up the true nature, origin, location, destination, movement or rights over the assets or their ownership, knowing that they come, directly or indirectly, from a serious crime..." </span><span style="font-family:Arial; color:#010101">so it could be said that intent can be at three moments: that of acquisition, that of conversion, and that of transfer and that, in this matter, the trial judges considered that, for one sum, it existed from the acquisition (since it was transferred after the arrest of Nombre01) and, for the remainder, from the conversion and transfer. However, the actions cannot be artificially separated because, as has been demonstrated with the cited doctrine, the international instruments from which those three moments arise are emphatic in requiring that </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101">the knowledge of the perpetrator be at the moment of receiving the assets</span><span style="font-family:Arial; color:#010101">, not in the remaining moments. </span><span style="font-family:Arial">Thus, in the </span><span style="font-family:Arial; font-style:italic">UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances </span><span style="font-family:Arial">(approved by the UN at the session held on December 19, 1988 in Vienna, Austria, and ratified by Costa Rica in 1990), Article 3.1.c.i provides: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">"Article 3 OFFENCES AND SANCTIONS. 1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally: c) Subject to its constitutional principles and the fundamental concepts of its legal system: i) The acquisition, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">possession or use of property, knowing, at the time of receipt,</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> that such property is derived from any offence or offences established in accordance with subparagraph a) of this paragraph or from an act of participation in such offence or offences" </span><span style="font-family:Arial">(emphasis supplied). The Palermo Convention pronounces in the same sense, stating: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">"Article 6. Criminalization of the laundering of proceeds of crime 1. Each State Party shall adopt, in accordance with the fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: b) Subject to the basic concepts of its legal system: i) The acquisition, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">possession or use of property, knowing, at the time of its receipt,</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> that such property is the proceeds of crime" </span><span style="font-family:Arial">(bold emphasis supplied). It has already been said that this instrument is not applicable here, as it is a later law, but it is mentioned for the purpose of demonstrating how, despite being extremely broad in its regulations, it limits the intent, of the subsequent possession, to it having been present at the time of receiving the good or object, so both regulations become interpretive limits of the law enacted as a result of subscribing to that international obligation.</span><span style="font-family:Arial; color:#010101"> Ergo, the three verbs allude to acts where there is initial intent in the reception, without it being possible for an act carried out without intent, without knowledge or will to commit the objective elements, that is, in good faith, to later become, by the mere passage of time, an illicit act since, in such cases, the conversion and transfer are acts inherent in the exercise of ownership and possession rights (originally in good faith). In other words, it would be a legal absurdity to consider that if the person received in good faith, without intent, and subsequently learns of the illicit nature of the fact from which the money came, they are required either to deliver the item to the State or to perform no possessory act with it. Now then, this would lead to making a differentiation (both for purposes of the objective elements and intent, as well as for confiscation (comiso)) between the monies received by Nombre01 before his brother's arrest (received without intent, and therefore, not constituting the criminal offense at issue) and that received afterwards. That is, it would be necessary to establish the total amount received by the defendant. From this, subtract what was received before January 10, 2002 (when there was no objective criminality (tipicidad objetiva) for the act). From what remains, subtract what was received before August 2, 2004 (date of Nombre01's arrest in the United States, which the Court fixes as the date from which intent arises), those sums that were received without intent by the defendant and, therefore, not susceptible, from the subjective criminality, to being criminal. From what remains, that is, approximately four million dollars, what was unpaid in taxes must be extracted for each annual period (for the purposes of dual criminality (doble incriminación) for tax offenses), since only this (and not the rest of the profit) is what would constitute the crime. For that resulting sum, it would need to be demonstrated in which periods it was obtained, to see if it is possible to subsume it under the objective elements of the crime in Costa Rica, obviously without taking into account interest or other gains generated in the country, but only the resulting original amount. None of that was done, and the choice was made to refer, in bulk, to all the money, its interest, and everything else, both for the purposes of the conviction and, subsequently, for the general confiscation. To do the latter, the Court (overlooking the anachronism it incurs by pointing out that the paragraph it will apply, from Law No. 8204, is inspired by numeral 6 of the Palermo Convention, see folio 940, when it has already been seen that the law applicable to this matter is the 2002 one and that this Convention, although adopted by the United Nations in the year 2000, was not ratified by the country until 2003) chooses to point out that it is not those first verbs that apply but rather: "</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">The accused facts, in the Court's opinion, do not find a match in the first part of the cited Article 69 'Whoever acquires, converts or transfers assets of economic interest </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">' but rather in the one that reads 'or whoever performs any other act to conceal the illicit origin or to help the person who has participated in the offenses to evade the legal consequences of their acts</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> (knowing that these originate from a serious crime)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">'</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> we will proceed to break down the elements of the crime </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> with the intention of linking each part of the crime with the defendant's conduct and the circumstances of the case </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline">Analysis of the Objective Elements (Tipicidad Objetiva). Article 69 first paragraph: "</span><span style="line-height:150%; font-family:Arial; font-size:11pt">(...)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> whoever performs any</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> other act to conceal the illicit origin or to help the person who has participated in the offenses to evade the legal consequences of their acts.' A.- Whoever performs any other act.- The verb that defines the typical action is to perform any other act, in allusion to the fact that it is not the </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">actions 'acquires, converts or transfers' that precede this part of the first paragraph of Article 69. The Court opts for this verb form because the conducts of Mr. Nombre01, which have been held as proven in the corresponding section of this judgment, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline">are not contained in those verb forms</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, but rather are of a banking nature in some cases and in others are dispositive acts based on those monies received through transnational banking operations. The analysis of the acts performed must begin with the first ones that occurred chronologically. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">i.- </span><span style="line-height:150%; font-family:Arial; font-size:11pt; text-decoration:underline">Receive and maintain</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> in his dollar account No. 230-0042636-9 at Banco de Costa Rica money from the illicit commerce of cigarettes by Nombre07 in the Indigenous Reserve […]. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">On August 6, 2004, a transfer was sent from the United States from TGM Nombre16 Partners, for the sum of four million four hundred thousand dollars to the aforementioned account, and Mr. Nombre01 </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">received and maintained</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> them deposited in his name, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">knowing</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> that they came from the criminal activity for which his brother had been arrested four days earlier in New York. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">ii.- The Redemption of the Dollar Growth Fund and subsequent operations. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">Five days after the aforementioned deposit was received in the account of Mr. Nombre01,</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> that is, on August 11, two thousand four, Nombre07 sends to 'Nombre05', his trusted executive at Banco de Costa Rica, who turns out to be the defense witness Nombre05, the document that can be seen on folio 28 of the Main Case File, where he authorizes him to transfer all, in uppercase, bold, and underlined, the funds from his investment account, and indicates that if </span><span style="line-height:150%; font-family:Arial; font-size:11pt">(sic) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">he has any doubt to contact Nombre01's mobile phone number, which he includes in the communication. In this concise expression of Nombre01's will, the urgency and imminent risk in which the permanence of that money in his patrimony and without restrictions finds itself is evident, a situation to which his brother Nombre01 responds efficiently, quickly, and faithfully, who one day later, on August 12, directs a communication to Mr. Nombre05, who has managed up to that moment the investments of Nombre01 and his own at Banco de Costa Rica, for the redemption of those funds and their deposit in Mr. Nombre01's dollar savings account, which is scrupulously carried out by the Bank. Once the more than ten million dollars are deposited in his account, Mr. Nombre01 establishes another growth fund—this time in his own name—for the indicated sum to which five thousand eight hundred dollars that still remained deposited in Nombre01's savings account at Banco de Costa Rica are added, so that Nombre01's design that no money remain in his name at Banco de Costa Rica and therefore be susceptible to being frozen by the federal authorities who had arrested him nine days earlier in New York is fulfilled. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">iii.- Purchase of</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic"> real estate and movable property.- </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">In File 1 of the evidence offered by the Public Prosecutor's Office, all the notarial and registry information concerning the transactions by virtue of which, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">starting in the year two thousand seven and until November two thousand ten, Mr. Nombre01, in his personal capacity or in the name of the company Nombre01 del Caribe S.A. in which he had a majority interest, acquired movable and immovable property with the money</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> sent by Nombre07 is included. The Report of the Economic and Financial Crimes Section of the O.I.J. No. 212-DEF-R-140-11, from folio 343 through folio 346 verso of the Main File of this case, describes all the immovable properties that were acquired by Nombre01, who appears in his personal capacity and takes ownership of those properties, and in the section of the study dedicated to Company H, established by Mr. Nombre01 and his wife Nombre28, it is indicated that this company purchased five properties in the Province of Limón. Regarding the value of those acquisitions, the referenced Opinion states that the value of the immovable properties amounts to the astronomical sum of one billion nine hundred eighty-two million six hundred fifty-three thousand seven hundred</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> fifty-six colones. Regarding the movable property, their description and notarial and registry information can be seen in Evidence File one and in the Report of the Economic and Financial Crimes Section, in Annexes No. 1 and No. 2, the description of those assets is recorded and their value is set at the sum of one hundred sixty-five million, seven hundred forty thousand colones, those of the first annex, and in the second annex concerning vessels, a value of Sixty-four million two hundred eighty thousand, two hundred fifty-one colones is recorded, which total, in sum, two hundred thirty million, twenty thousand two hundred fifty-one colones. It should be mentioned that the time in which the acquisition of immovable property is made, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">between 2007 and 2010</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">, is not coincidental, but rather must be related to the situation of the judicial process followed by the federal criminal authorities of the United States, because according to witness Nombre29 in that case, the Trial against Nombre01 began in the year two thousand seven, in October, and continued until May 2008, and </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic">the properties begin to be purchased in July 2007</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">. The Court concludes from this temporal proximity between the trial and the acquisitions of immovable property that the change in Nombre01's procedural situation, which leads him to face a federal trial, imposes the need not to limit the concealment to banking operations but to diversify through real estate investment to distance Nombre01's assets even further from their illicit origin; it is a legitimization—to put it some way—of a second degree, in which</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> the legitimized money is converted into properties, thereby diluting the trail of the money, which is no longer only at Banco de Costa Rica but in various real estate investments" </span><span style="font-family:Arial">(cf. folios 940 to 942; the bold emphasis does not belong to the original text). But, even if what is attributed to him is having maintained those monies in his possession, redeeming the funds, and then making the investments, it turns out that the intent had to be at the moment of receiving the money, since that is what is privileged, as has been indicated, by the different conventional instruments, even those subsequent and of broader scope than the legislation applicable to this matter, even if it is not the acquisition that is being penalized, but the subsequent acts. It is also evident that there is no evidence in the case file that allows establishing, neither in this instance nor through a remand, those items or distinguishing them from the amounts received before the dual criminality requirement was met (to also weigh the issue of the statute of limitations for criminal prosecution) so as to differentiate between one and the other, but rather this would require a new investigation or the production of new evidence which, as will be stated, is not possible. Now then, without dwelling on those evidentiary problems regarding the sum received by the defendant after his brother's arrest (from which, it is insisted, it is not determined what amount of it, whether all or not, comes from tax evasion and which, from the legal profits of that activity) it turns out that the construction of the</span><span style="font-family:Arial; color:#010101"> knowledge of intent based on the fact of that arrest is not something this Chamber endorses either. Note that the prior fact with a causal relationship (the sale of cigarettes; not the possession of a weapon which has no relationship with the capital or the facts for which he was acquitted) was an element that was, inclusively, widely discussed and controversial in the same US justice system, to the point that a judge of that country dismissed the charges, citing the ambiguity of the applied laws and the possibility that Nombre01 was unaware of the illicit nature of what he was doing. That is, the dismissal of charges by a judge was based on the possibility that Nombre01 incurred in what, in our system, would be the equivalent of an invincible mistake of law (error de prohibición invencible). Although that decision was later reversed by other jurists, it is important, for purposes of the mistake of fact (error de tipo) alleged by the defense in this specific case because... if in the eyes of a US jurisdictional authority, with broad knowledge of that country's laws, it was reasonable for Nombre01 to doubt the tax issue of the matter at hand (sale of cigarettes in the indigenous reserve to which his wife belonged)... is it not more valid that Nombre01 himself, a man not versed in law, who had gone to the United States and worked in the commercial establishment, which was open to the public and widely advertised in that country through mass media including the internet, and whose tobacco cigarettes were sent by Nombre09 using even that country's postal service, would doubt it? was it not more expectable that Nombre01, who had been receiving money from his brother for more than four years (as of August 2, 2004), would doubt whether the origin of that further sum was licit or not? It is true that, as the trial judgment correctly says, quoting a foreign author: </span><span style="font-family:Arial; font-style:italic; color:#010101">"</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">'</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">In any case, the use of the banking and financial system to recycle the benefits obtained from different criminal activities has been a widespread and unpunished practice for many years, practically all over the world. Starting from a certain complicity</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> of the financial system, said system has been used for the transformation of capital of illicit origin, coming from the commission of serious crimes, into money free of suspicion. Without a doubt, all of this would not have been possible if banking entities and financial intermediaries had exercised a little diligence and collaboration, detecting transactions of unclear origin. But some financial entities have decided to ignore the illicit origin of the capital, to the extent that they obtained significant economic benefits. The free movement of capital in Europe requires improving</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic">&#xa0;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic"> the inspections of said capital at origin, without this intervention policy being able to be interpreted as an obstacle to its free circulation. For this reason, successive directives regulating banking, credit, and professional activities that affect the transformation of capital and assets have been approved.' Ferré Olivé, J, op. cit. p. 168.

Contrary to the idea existing in common knowledge that the remittance of funds through banking channels inherently excludes the crime of Money Laundering, as has occurred in the case under review, banking and financial entities can be used to launder money, so that they can actively contribute to the production of the harmful results of this criminal activity in the socioeconomic order" (cf. folios 932-933, emphasis supplied). However, although the banking system can be and has been used in other cases and in different latitudes for money laundering purposes, it is clear that this element must be weighed, together with others, to extract intent (dolo), since it is not the same for someone to send a flow of money covertly ("in sacks," as the appellant refers to it) compared to someone who does so using banking institutions of two countries, both of which, although one more than the other, are notable for their not insignificant controls over monetary origins. Nor should the evidence be treated the same if the generating activity is illicit *per se* (goods obtained from drug trafficking, for example) as opposed to if it comes from tax evasion where there is a lawful origin of the money, even though tax payment is subsequently omitted. Therefore, if in the specific case, Nombre01 had been transferring sums of money for years (sometimes for several million dollars, as was reviewed earlier in a transfer for more than two million, before the four million dollar transfer at issue) using U.S. and national banks, to which he reported the origin of those monies to the point that, in Costa Rica, banking authorities went to make a visit to the referred business, confirming its existence and the publicity of its operations, that is important to consider for the purposes of the intent (dolo) alleged here... could his brother's arrest have changed his conception? In the opinion of this Chamber, no, because that arrest occurred attributing to him a series of charges (homicide, arson, extortion, weapon possession) that had no direct relation to the origin of those monies. This on one hand but, on the other, as well stated by the appellants, for this type of relationship crime it was necessary that, because a process had been initiated in that country, said process had concluded with a final conviction to generate knowledge, which is not potential, probable, but must be certain and current. Therefore, this Court asks itself... what would have happened if the trial of Nombre01 had taken place in parallel, or immediately after, the moment in which U.S. Judge Hurley excluded the smuggling charges against Nombre01 and before the decision of the Court of Appeals? If this had proceeded that way, that element would have generated the reasonable probability of doubt regarding the intent (dolo) of the defendant. Moreover... if Nombre01 had been acquitted in the United States of those acts, could the sentence's affirmation that his arrest was enough for Nombre01 to know the illicit nature of his acts be maintained? It is obvious that not. What is meant to be indicated is that, depending on the stages of the U.S. process at which this had been carried out, the answer to the question about the intent (dolo) of the defendant here would have been different, which is neither reasonable nor acceptable. It is not legitimate, consequently, to give a variable solution, according to the stages of a foreign process, to the same question (of whether there is intent (dolo) of the defendant). That makes the "inference" of intent (dolo) that the Court makes from a procedural act (the arrest of Nombre01) invalid when he was acquitted of the majority of the charges; convicted of one without causal significance with the flow of money and for another, his case widely discussed in that country, before jurisdictional authorities that, even, came to exonerate him, temporarily, from responsibility. Therefore, the allegation of error made by the defense is valid when considering a joint series of situations: **a)-** the transfer for years; **b)-** the use of banking institutions of both countries; **c)-** the declaration of the origin of the goods; **d)-** the prior non-prosecution of any person for such acts in the United States, Nombre01 being the first sentenced for such conduct; **e)-** the public and publicized activity of his company; **f)-** the type of business, sale of tobacco cigarettes, which is not an activity, *per se*, illicit. For this Court, based on all these elements, the defendant Nombre01 had no reason to know that the money came from a serious crime (which, we have seen, was not such) and, even if his error of type (error de tipo) was avoidable, there is no parallel regulation for negligent acts of that nature in our legal system, so that, concerning, effectively, as the defender points out, an error of type and not one of prohibition, the exclusion of intent (dolo) made his behavior atypical: “The ignorance or defective knowledge of any constitutive fact of the criminal offense excludes intent (dolo), and gives rise to an error of type. In the crime of money laundering, the exclusion of intent (dolo) can occur as a consequence of ignorance or defective knowledge of the typical action or the material object (…) More problematic is the question relating to the ignorance that falls upon the material object, fundamentally because the criminal regulations relating to money laundering employ normative elements in the offense description to describe suitable objects (…) the doctrine does not consider sufficient, for the purposes of typical intent (dolo), merely knowing the configurational facts of the normative element's factual assumption. It is required that the author carry out a parallel valuation in the layperson's sphere that allows him to understand the content of the social meaning of the assumption” (Cf. Nombre15. *El delito de blanqueo de capitales*. Aranzadi, Spain, 2012, pp. 763 and 765). It must be clarified, on this topic, that the court of first instance assessed this allegation as if it were an error of prohibition, when stating: "...the technical defense of Mr. Nombre01 argued that he acted under an error of prohibition because **he had no way of knowing that the money sent was related to an illicit activity**. The Court cannot admit this argument of the Defense because, in accordance with the provisions of Article 35 of the Criminal Code, **error of law (error de derecho) supposes that the author of the conduct believes -by virtue of an invincible error- that the act he carries out is not subject to penalty**. In this case, after the arrest of Nombre01 in the United States, on August second, two thousand four, his brother Nombre01 does not act -by participating in the **redemption of the Growth Fund** and the constitution of a new one in his name **and by maintaining sums of money for millions of dollars in his dollar savings accounts**- being the victim of an invincible error, because he knows that the conduct different from that which Nombre01 had been carrying out -depositing the illicit monies from Nombre08's account and **maintaining** the Growth Fund in dollars in his name at the Banco de Costa Rica- changes as of August sixth and the only origin of the change is the arrest of Nombre01 under diverse criminal charges, among which is cigarette smuggling, with which Mr. Nombre01 acquires the certainty -which excludes invincible error- that **all the money** remitted from New York is linked to the illicit activity to the detriment of U.S. justice and that the acts subsequent to that knowledge have the purpose of removing from possible immobilization and/or seizure by those authorities, the money coming from the alluded crime that was not paid to the U.S. treasury which ceased to receive millionaire sums for the taxes that were not collected by Nombre01 in his business, according to what witnesses Nombre08 and Nombre19 said in the Trial. As a consequence of the reasoning set forth, it is concluded that Mr. Nombre01 did not act under an invincible error in the terms of Article 35 of the Criminal Code- because the origin of the money is revealed undoubtedly illicit, for Mr. Nombre01, as of the arrest of Nombre01 on August 2, 2004, in the United States" (cf. folios 939-940, emphases supplied). Note that, on one hand, it alludes, again, to a subsequent intent (dolo subsecuente): not for the reception but for maintaining the money and making the redemption of the Fund, which, additionally, was being nourished with monies that, we have already said, did not arise from an activity that generated double criminality (doble incriminación) until a certain date (2002) or the same court *a quo* affirmed were received without intent (dolo) until another date (August 02, 2004) and that, ultimately, the tax amount left unpaid is not determined. But, in what matters most, the Court started from the premise that the allegation concerned an error of prohibition, which is incorrect reasoning because what was alleged was that Nombre01 did not know that the monies came from a 'serious crime' and, this being a normative concept of the offense type, ignorance of an objective element of the offense type was being alleged and, therefore, the allegation effectively corresponded to an error of type, in which the consequences regarding the avoidability, or not, of the error, we well know, are different. In any case, it is fitting to reiterate the position that this Chamber, with a panel partially similar to the current one (Nombre30 and Nombre31), has outlined in similar cases, where the criminal offense type is constructed by the legislator with normative legal elements, cases in which it has been indicated: "**(1) On the nature of the invoked error.** In principle, there is not much confusion when error of type is defined as that which falls upon the objective elements of the criminal offense type nor when alluding to error of prohibition as that which occurs both when the agent ignores the norm, considers it not in force, or interprets it incorrectly (direct) and when he is mistaken about the existence or limits of justifications (error of permission or indirect prohibition) (...) What is necessary, however, is **to determine the nature of the error involved when the criminal offense type is constructed in such a way that, in its objective elements, it introduces terms such as "illicitly," "illegitimately," "illegally," "unlawfully (antijurídicamente)," etc., since these terms then become normative elements of a legal nature which, by integrating the offense type, would eventually mean that the error alleged regarding them would no longer be one of prohibition but of type** . On this matter, the doctrine states: ¬"...it was Nombre32 himself who realized the novelty that the normative elements of the offense type discovered by him posed in general terms; put succinctly: despite being components of unlawfulness (antijuridicidad), as they do not cease to be elements of the type, they would fall, for this author, under the rule of error regarding circumstances of fact (...) that is to say, **they would require -contrary to unlawfulness (antijuridicidad)- to be encompassed by the subject's intent (dolo)** , since they would form part of the factual assumption upon which the value judgment of unlawfulness (antijuridicidad) falls, so that the error about a normative element of the type would be what we today call an error of type, or if preferred, with more neutral terminology, an error excluding intent (dolo)." Nombre33, Nombre12. El error sobre elementos normativos del tipo penal. La Ley, 1st edition, Madrid, 2008, p. 42. Thus understood, **the intent (dolo) of the active subject must also encompass that normative-legal element** (...) If, as has been said, the vicissitudes of the permit are normative elements of the type, errors about the scope of said permit constitute, then, errors of type. That is to say, in this specific case, the active subject must know not only that he does not have a permit for carrying but, in addition, be clear that said permit is needed. Any false representation about the scope of those situations where said permit is not needed, which is precisely what is raised in the specific case, means that one is faced with an error of type. Therefore, the error invoked in this case is not an error of prohibition (which would imply the general ignorance that carrying a weapon is a crime in Costa Rica, a topic that is not the one raised) but one of type, that is to say, the false assumption that the active subject alleges that he did not require the permit because he was not carrying a weapon, but transporting it (as the gunsmith distinguished), and that to do the latter it was enough to comply with the requirements established in the directive issued by the Ministry of Public Security, transcribed below." Court of Criminal Cassation, decision number 2010-641, emphases supplied. If in this matter it is alleged that the defendant received the money unaware that it came from a ‘serious crime’ and this is a normative-legal element of the criminal offense type, the error alleged is of type, and not of prohibition, the distinction being relevant because the avoidability of the error, in the first case, excludes the crime if there is no, as there is not in this matter, parallel negligent offense type, while, in the second, it only reduces the penalty. Therefore, the arrest of Nombre01 in the United States on August 02, 2004, at most could have produced an alert about the possibility of the illicitness of the conduct from which the funds originated, a probability that does not have the firmness to be certainty, given the elements mentioned earlier. But if, from what has been indicated up to here, important doubts can be inferred regarding the configuration of a ‘serious crime’ (because, due to evidentiary issues, the amount evaded in the United States regarding what was transferred is unknown; a financial analysis of what was received in each period was not made and, due to the date of the facts, many of the transferred monies were transferred before the regulation applicable to this matter, in addition to the issue of double criminality (doble incriminación) regarding the minimum penalty and the statute of limitations of the criminal action) as a precedent element and, furthermore, there are ample and well-founded reasons to doubt the knowledge of that material object of the crime by the defendant here, it happens, as if that were not enough, that the analysis of the matter cannot be exhausted in such aspects, since the criminal offense type so often cited contains subjective elements different from intent (dolo), which must be analyzed next.

§4. Other subjective elements of the type, different from intent (dolo): "Alongside the cognitive element there must exist in the offense of Money Laundering a will to hide or conceal the origin, location, etc. of the goods that the agent knows are coming from a crime. Whoever receives, transfers, converts objects that he knows come from a crime to hide or conceal their location, their destination, their ownership, etc. acts with the required intent of danger (dolo de peligro) (...) The intent (dolo) must extend to the elements of the objective offense type..." (Nombre14. *El delito de legitimación de capitales*. Editorial Jurídica Continental, San José, 2012, 1st edition, pp. 127-128). Does that happen in the present case? While the money was received at the Banco de Costa Rica, it was declared that it came from that cigarette sale, to the point that the national banking authorities visited the company and gave a report on it. A record was made of the fund transfers to the account of Nombre01 and that he acquired properties or goods in his name or in the name of companies where he is the sole or majority partner. Even, those assets were identified with a stamp that Nombre01 used and the people who worked for each business used a uniform with his logo, according to what Nombre34 and Nombre05 related at trial (see folios 861 to 870). Nombre01, in the United States, declared the existence of such goods for the purpose of offering them as collateral as part of the bail for his freedom he was requesting, as also appears in the documentary evidence coming from that country and in the statements of its governmental officers who testified at trial… then… is there a desire to conceal? In the opinion of this Chamber, no, because the trail was easily verifiable, without the indications that, certainly not necessarily, are usually present in these cases: “…the usual way of proving that knowledge is circumstantial evidence (…) among which the jurisprudence usually highlights a series of irregular or atypical acts in the habitual financial or commercial operation, such as the knowledge of the use of fictitious identities, the use of companies without capacity or without real economic activity, the non-existence of known economic activity, unjustified patrimonial increase, etc. But none of these indications can disregard that or those that evidence, even via circumstantial evidence, the causal connection between the goods…” (Cf. Nombre11. *Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales*. Cuadernos de Política Criminal No. 91, 2007, pp. 5-26. Also on the website of the Universidad Externado de Colombia: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, p. 81). Therefore, this is an additional reason to accept the appeals and modify the sentence that came on appeal.

§ 5. On the confiscation (comiso): Regarding the confiscation (comiso), the Court made no separation between the monies obtained given the atypical nature of the facts (2002) and those obtained later; between those that, judging by the *a quo*'s criterion, were obtained without intent (dolo), for being prior to the arrest of Nombre01 in 2004 and those afterward; nor between the fruits obtained with some and with others. This would have been sufficient for that part of the resolution not to be able to survive. In any case, having indicated above the multiple reasons why there are well-founded doubts that the facts are typical, both objectively and subjectively, doubts that cannot be remedied since they arise from the evidentiary deficit of the Prosecutor's Office, the appropriate course is to reject the confiscation (comiso) of all the goods, revoking the sentence also in this regard.

§ 6. In summary.

The defensive argument is valid that in this case it did not involve money coming from <span style="font-family:Arial; font-style:italic; color:#010101">per se</span><span style="font-family:Arial; color:#010101"> an illicit activity, as would be the case with some prohibited object; the object (sale of cigarettes) was not illicit, but rather, eventually, the non-payment of taxes was. However, in this matter a conviction is not possible because: </span><span style="font-family:Arial; font-weight:bold; color:#010101">1)</span><span style="font-family:Arial; color:#010101"> dual criminality is not satisfied, since when fitting the acts into national legislation, the acts committed by Nombre01 (the material object from which they originated) had a prescribed minimum penalty of less than four years, which was the amount in force under the law applicable to this matter; </span><span style="font-family:Arial; font-weight:bold; color:#010101">2</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">)</span><span style="font-family:Arial; color:#010101"> Nombre01 has not yet been sentenced in the United States, so the specific penalty that may be imposed is unknown and whether it fits the national definition of 'serious crime' according to the referenced applicable national law; </span><span style="font-family:Arial; font-weight:bold; color:#010101">3</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">) </span><span style="font-family:Arial; color:#010101">the amount of the tax liability left unpaid in each year, in which the criminal offense varies, was not individualized, and a cumulative calculation cannot be made; </span><span style="font-family:Arial; font-weight:bold; color:#010101">4</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">)</span><span style="font-family:Arial; color:#010101"> the accused was not aware that the money came from a 'serious crime' since the activity from which the funds originated was licit (tobacco sales), although the payment of taxes was not, an aspect regarding which there is no proof that the accused knew; </span><span style="font-family:Arial; font-weight:bold; color:#010101">5</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">)</span><span style="font-family:Arial; color:#010101"> neither was it his purpose to conceal the activity from which it came; </span><span style="font-family:Arial; font-weight:bold; color:#010101">6</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">)</span><span style="font-family:Arial; color:#010101"> the matter of the statute of limitations for the criminal action in both countries based on the annual amounts received was not analyzed. In summary, despite the fact that the lower court's judgment is an important legal document that, with diligence and exhaustiveness, addressed the matter at hand, this Court does not concur with the conclusions reached, nor does it endorse the omission of aspects that are indispensable and affect the substance of what was decided, without detracting from the form, since the judgment does contain the reasoning required for its validity and such omissions arise from the prosecutorial investigation itself, which cannot be supplemented with new evidence and which mark the difference in criteria and outcome between that decision and this one. However, the objective effort of the Court (to the point of rejecting prosecutorial claims and pointing out to that body its abuses, including that relating to the police deployment for the arrest of the accused: see folio 970) is not in vain, since, in addition to respecting the opinion expressed therein, it has allowed this Chamber to rule from this instance, without ordering any remand, given that the errors and omissions noted cannot be corrected at instance, as this would require new evidence or reopening the investigation, which is not possible in the face of an appeal filed (to such extremes) solely in favor of the accused (see Article 447 of the Code of Criminal Procedure) as this would violate the principle of prohibition of reformatio in peius. Therefore, both challenges must be upheld in the referenced extremes and what is appropriate is to partially overturn the conviction handed down in the record, as well as the decision on forfeiture (comiso) of assets and, in its place, to acquit Nombre01 of all penalty and responsibility for the crime of money laundering (legitimación de capitales) that has been attributed to him, ordering the full restitution of the assets seized, impounded, or annotated, the forfeiture of which is rejected; as well as his immediate freedom and the cessation of any precautionary measure issued against him, if no other cause prevents it, and it is resolved without special ruling on costs. </span></p><p style="margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:31.2pt; line-height:150%"><span style="font-family:Arial; font-weight:bold; color:#010101">IV.-</span><span style="font-family:Arial; color:#010101"> The prosecutor from the Public Ministry (Ministerio Público), Licenciada Natalia Sarkis Fernández, filed an appeal against the judgment, alleging, in its three sections, the incorrect exoneration of some assets from the measure of forfeiture. In </span><span style="font-family:Arial; font-weight:bold; color:#010101">the first ground</span><span style="font-family:Arial; color:#010101"> she points out that Article 110 of the Penal Code and numerals 83, 87, 93, and 94 of the Law on Narcotic Drugs were violated, since it was proven that the accused obtained assets and incorporated companies as of August 2004 to launder money coming from Nombre01 and illegitimately acquired by him, despite which the forfeiture of some of them was not ordered because the formal procedure of notifying the legal representatives or resident agents of various companies was not completed. She cites excerpts from the judgment and considers it erroneous not to have ordered said measure against the registered properties number […] in the name of Nombre35. She indicates that although the accused here was not notified in his capacity as representative of said company, Article 11 of the Law on Notifications states that one may be deemed notified if one has become aware of the proceeding, and the accused here appeared in the record on June 2, 2011, from which point he became aware of the entire case file, including the annotation regarding such assets, which was reaffirmed by the accusation, in the preliminary hearing and in the trial debate, therefore, having appeared in the proceeding, he was able to exercise the defense of his interests. She requests ordering the forfeiture of such assets in favor of the Costa Rican Drug Institute (Instituto Costarricense sobre Drogas). In the </span><span style="font-family:Arial; font-weight:bold; color:#010101">second ground</span><span style="font-family:Arial; color:#010101"> she alleges, again, that the decision of the lower Court not to order the forfeiture of some assets was incorrect, this time, those acquired by the accused in his personal capacity and consisting of registered properties number […], stating that although it was proven that the money for their acquisition came from the crime committed by Nombre01 and that the intent was to integrate and place it in the Costa Rican financial system to conceal the illicit activity of his brother, the forfeiture was not ordered because the mortgage creditors of those assets were not notified to assert their rights. She points out that, even though such communication was not made, that was not a reason to exclude them from said measure, because the rights of others over them could be claimed regardless of who the owner was. She cites in support of her thesis Voto 1216-2005 from the Third Chamber (Sala Tercera) and Voto 2011-1054 from the Criminal Appeals Court of Goicoechea. Finally, in the </span><span style="font-family:Arial; font-weight:bold; color:#010101">third ground</span><span style="font-family:Arial; color:#010101"> she alleges the incorrect application of the same normative provisions relating to forfeiture, this time regarding the money found in the home of Nombre01 […] during the search, totaling approximately seventeen million colones and ten thousand dollars. She states that it was held as proven that all the commercial activities of the accused began as a result of his criminal actions and that this money, which was hidden in his house, was the profits of the commercial businesses he had undertaken, as they were cash reports from one of the companies and, because of a previous robbery, he did not leave it in the business but in his home, but the Court did not order its forfeiture because this money was not included in the charged acts and because it was apparently the product of the commercial activities of the accused's businesses, which she considers erroneous. She requests the forfeiture of this money in favor of the ICD. </span><span style="font-family:Arial; text-decoration:underline; color:#010101">The defense did not respond to this appeal</span><span style="font-family:Arial; color:#010101">. </span><span style="font-family:Arial; font-weight:bold; color:#010101">The challenge is rejected. </span><span style="font-family:Arial; color:#010101">As already indicated, for this Chamber, what is appropriate is to acquit the accused of all penalty and responsibility for the acts that have been attributed to him and, therefore, there is no legal basis to order the forfeiture of the assets exempted from that measure by the lower court (tribunal </span><span style="font-family:Arial; font-style:italic; color:#010101">a quo</span><span style="font-family:Arial; color:#010101">), rather, said measure must be lifted on the assets for which it was ordered, as indicated in the previous section. Regarding the legal nature, characteristics, and principles governing the forfeiture measure, this Chamber, under the name of Criminal Appeals Court and with the current composition, has stated, for example in Voto 2010-1009: “ ... </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">the first thing that must be done to determine the legal nature of forfeiture is to establish the characteristics, effects, and cases in which it applies. According to the cited Article 110, forfeiture requires, for its applicability: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.1) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">that a </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">crime (delito)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> be under investigation, not a misdemeanor or infraction, this is so because the numeral begins by stating "Every crime" and that expression, in a restrictive sense (Article 2 of the Code of Criminal Procedure) can only be understood as referring to the acts classified as such by the legislator (Book II of the Penal Code or special laws) who made the distinction with misdemeanors that have a different location in the normative body (Book III); </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.2)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> that this crime be intentional. The norm does not expressly state this, but it indicates that what is lost are the instruments with which the illicit act was committed and the things resulting from its execution. Experts in the field have stated, in our view according to a restrictive interpretation consistent with the principle of legality, that the intentional nature of the measure is derived from the provision of "instruments" contemplated by the law, since these: "...for the generality of the doctrine are those that have been 'intentionally' used to commit the crime (...) thereby excluding, of course, those (...) of a negligent crime" (Nombre36. Criminal Law. General Part. Editorial Astrea, 3rd edition, Buenos Aires, p. 519. In the same sense: Nombre37, Eugenio Raúl; Nombre38, Nombre39 and Nombre40, Nombre39. Manual of Criminal Law. General Part. Ediar, Buenos Aires, 1st edition, 2005, p. 734; Nombre41. Forfeiture: systematic analysis and precautionary implementation. Editorial Universidad del Rosario, 1st edition, Bogotá, 2007, pp. 59 and 64 and others cited in Nombre42. Asset Forfeiture. IJSA, San José, 1st edition, 2006, pp. 70-73); </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.3) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">it would be applicable, </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#010101">in principle</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">, to any intentional crime, as it is an institution regulated in the general part of the Penal Code, which is characterized, precisely, by having an impact on codified criminal offenses or those in special laws;</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101"> C.4) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">it can affect third parties provided they are given notice in the proceeding. This is not established by the norm which, if interpreted in isolation, would lead to ignoring this requirement that arises from a systematic interpretation of the legal system and which places Constitutional Law as what it is, the foundation of the rest of the normative hierarchy (see, in this regard, Votos 712-2006 from the Third Chamber and 637-2010 from the Criminal Appeals Court of San José); </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.5) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">forfeiture does not affect the rights of the victim or third parties acting in good faith, but rather these prevail over the state's interest (in this sense, Votos from the Criminal Appeals Court of San José, numbers 2000-76, 2000-323, 2003-383 and 2004-101 and those from the Third Chamber, numbers 512-2001 and 1273-2005, among others); </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.6) the effects arise from the crime, which is why it is normatively provided that forfeiture be ordered upon a conviction</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> (Article 367 of the Code of Criminal Procedure). Is 'crime' to be understood as a typical, unlawful, and culpable act or as the abstract stipulation of illegality referred to by the legislator? National case law, in general terms, has understood it as a legislative provision, without a specific declaration of responsibility, to the point that it has foreseen the possibility of forfeiture with dismissals, prosecutorial archives, final dismissal orders, even due to the statute of limitations for the criminal action, acquittals, with alternative measures such as conciliations, conditional suspensions of the proceeding, full reparation of the damage and payment of a fine, among others (see the recount of Votos made by Nombre42. Asset Forfeiture. IJSA, San José, 1st edition, 2006, pp. 230-263); </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.7)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> it lacks compensation, since it arises from a prior illegality, so it is an exception to the state's inability to assume ownership of property without paying the value of the asset (Article 45 of the Political Constitution); </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.8)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> it is a public order measure, so no request from a party is required, but it can be ordered ex officio; </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.9)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> as a measure arising from the sovereign power of the State, it must be provided for by law (Third Chamber, Voto 1217-1999), issued with a statement of reasons or grounds, and there having been prior demonstration of the link or nexus between the object and the criminal act, so it is not a strict liability (Third Chamber, Voto 505-99); </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.10)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">principles such as the presumption of innocence,</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> due process, and the right of defense govern, so the burden of proof falls on the State; </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.11)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> in Costa Rica, the forfeiture of goods used in the preparatory phase that does not become executive is not normatively regulated; </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">C.12)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> the destination of the assets, once their ownership is obtained by the State, is expressly fixed by law (cfr.: Law on Distribution of Confiscated Assets or Assets Subject to Forfeiture, its regulation and manual). </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">D)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> Based on similar considerations in comparative law, attempts have been made to explain the figure under discussion by indicating that it is an </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">accessory penalty</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">, a </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">security measure</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">, a </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">civil consequence of the crime</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> or rather a </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">sui generis legal consequence</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> of the crime (this includes those who consider it a third class of sanction in criminal law along with penalties and security measures but, in reality, it would be a fourth avenue, since reparation has already been accepted as the third). We will analyze each of these options: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">D.1)</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">Forfeiture as an accessory penalty: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">It has been said that forfeiture is an accessory penalty (in this sense Votos from the Criminal Appeals Court of Cartago, numbers 2010-236 and 2010-265). However, the main criticism that has been made against granting this legal nature is that forfeiture does not respond to the essential purpose of the sanction accepted by our constituent and legislator, which is positive special prevention or resocialization (Articles 51 of the Penal Code and 5.6 of the American Convention on Human Rights) insofar as it conforms more to retributive functions or negative general prevention (as is accepted, even, by the Criminal Appeals Court of Cartago in Votos numbers 2010-236 and 2010-265 by defining it as an accessory criminal sanction with a purpose of general prevention). Forfeiture would also not respond, from this perspective, to the principle of culpability which requires not</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> only culpability to be imposed (that is, a sanction could not be imposed without culpability, so it could not be imposed in the absence of a principal penalty nor in cases where the perpetrator is not sanctioned, even if there was a criminal wrong) but considers that this culpability is gradable, which clashes with the rigid nature of the figure. Likewise, if it were a penalty, it would violate the principle referring to its highly personal nature since forfeiture is permissible even against third parties, provided they are given a hearing in the respective proceeding and the assets, with their consent, have been used in the commission of crimes</span><span style="font-family:Arial; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...)</span><span style="font-family:Arial; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">Forfeiture is also not provided for, as an accessory penalty, in Article 50.2 of the Penal Code, which regulates as such only the special disqualification (inhabilitación especial) defined in numeral 58 ibidem as the deprivation or restriction of one or more rights. This objection is both systematic (regarding the location of the figure), and in light of constitutional principles, since it would clash with the principle of legality by overstepping the catalog of accessory penalties that the Penal Code expressly contemplates and the regulations that pertain to them. The difficulty could be overcome by stating that there is a prior law that provides for it for all crimes (Article 110 of the Penal Code); that there are other special norms that designate it as penalties (for example the Wildlife Conservation Law) and that the figure contemplates the deprivation of a right: property. However, the same numeral 58 of the Penal Code states that the accessory penalties provided for as such by the legislator have a term, which is the same as absolute disqualification and ranges from 6 months to 12 years (Article 57), which is incompatible with the loss of ownership of the asset, which is definitive. Also, against any penalty, principal or accessory, it is possible to file for review, which the Constitutional Chamber has indicated is incompatible with the res judicata derived from forfeiture (see Voto 2001-8565). Finally, it should not be forgotten that according to Article 110 of the Penal Code: "...the weighing of forfeiture shall be made once the civil liabilities arising from the crime are satisfied </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...) </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">undoubtedly if forfeiture retained the character of a penalty it would not be admissible for the imposition of the penalty to depend on the satisfaction of civil liability." QUINTERO OLIVARES, Nombre43, Nombre44 and DE LLERA SUÁREZ-BÁRCENA, Nombre45. Civil liability ex delicto. Aranzadi, Navarra, 2002, pp. 45, 47. Therefore, either forfeiture is not an accessory penalty or, if it were, it would be unconstitutional for violating the cited precepts, making it necessary to evaluate other possibilities. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">D.2) Forfeiture as a security measure: </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">Based on these questions, the doctrine pointed out that, in reality, it was not that the measure was unconstitutional but that it should not be seen as a penalty and, in trying to explain it, it was thought that its nature was that of a security measure, thereby overcoming the objection that it responded to a principle of culpability since this escapes security measures whose basis is, rather, the dangerousness of the active subject. Forfeiture and security measures also had in common the fact that they responded more to special prevention criteria assumed in international instruments than to general prevention criteria. But criticisms arose again. First, because dangerousness in security measures arises from the existence of a wrong that may not be present in forfeiture, which is based on a presumed objective dangerousness of the thing per se (in the case of instruments used for the commission of the crime and particularly for some types of them, such as weapons). Furthermore, because this explanation did not overcome the highly personal nature that security measures also have and which escapes the figure of forfeiture</span><span style="font-family:Arial; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; color:#010101">(...)</span><span style="font-family:Arial; color:#010101"> </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101">Furthermore, in Costa Rican criminal law, the Constitutional Chamber declared security measures for criminally liable persons unconstitutional, leaving only curative security measures (see Article 98 subsections 3, 4 and 5 and Votos numbers 88-92 and 1588-98 of the Constitutional Chamber) and forfeiture, most of the time, is annexed to a declaration of sanction for criminally liable persons and is not mentioned as a security measure (Articles 101 and 102 of the Penal Code) which are also governed by the principle of specificity and the prohibition of creation by analogy (Articles 97 and 2 of the Penal Code), in addition to which they also have the possibility of cessation (Articles 100 of the Penal Code and 478 of the Code of Criminal Procedure) incompatible with forfeiture. Given this, another option was proposed. </span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; color:#010101">D.3) Forfeiture as a civil consequence or remedial measure derived from the crime:</span><span style="line-height:150%; font-family:Arial; font-size:11pt; font-style:italic; color:#010101"> although the Constitutional Chamber has referred to the figure from this perspective (as in Voto 2001-8565: "forfeiture is one of the civil consequences of the punishable act, together with restitution and the reparation and compensation for damages"), which has also been accepted by some case law from the Court of Cassation (see, for example and among others, Voto 787-2006 from the Third Chamber), the truth is that, technically, forfeiture cannot be considered to be a civil consequence. First because, as was said, in Costa Rica it can be ordered ex officio, which is alien to the party presentation and congruence principle of civil matters. Second, because it does not have a remedial, restitutionary, or compensatory nature, to the point that Article 103 of the Penal Code lists it outside those purposes, which are characteristic of the consequences derived from crime. Third because "Civil liability ex delicto constitutes a matter of essentially civil nature, regardless of whether it is examined in the criminal proceeding, which explains why there is no obstacle to its consideration being deferred, where appropriate, to the civil jurisdiction. And while the crime, with respect to the arising of this liability, is a necessary prerequisite, it is not sufficient, as the production of damage is also required, an indispensable element for the arising of all civil liability, whether or not the act that caused it is defined in the Penal Code" (Nombre46. Criminal-legal analysis of the figure of forfeiture. Editorial Comares, Granada, 2004, p. 29), without it being possible to file, in the civil avenue, an isolated claim for forfeiture.

Furthermore, because "Civil liability is transmitted to the heirs (... ) but that cannot be sustained equally with respect to the heirs of the person responsible for the act. In cases where the accused or defendant dies without having reached a forfeiture (comiso) order, it is not possible to apply..." (QUINTERO OLIVARES, Nombre43, Nombre44 and DE LLERA SUÁREZ-BÁRCENA, Nombre45. La responsabilidad civil ex delicto. Aranzadi, Navarra, 2002, p. 46). National doctrine adds to this that its effects are not of a private law nature but rather in favor of the State, despite the fact that Costa Rica did not follow the recommendations discussed in the drafting of the Model Penal Code for Latin America and placed the figure within the civil consequences. This, as stated, does not affect its true legal nature and what can be derived is that the provision was erroneously placed, without this affecting its effects, concluding that "forfeiture (comiso) cannot be an effect of civil liability ex delicto; in its essence, it is not a civil sanction" (ABDELNOUR GRANADOS, Nombre03. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, p. 376). Based on these reflections, another possibility was raised. D.4) forfeiture (comiso) as a complex act, an accessory, legal, mixed consequence or sui generis consequence of the crime: There are consequences derived from the crime that are so by provision of law, without sharing the nature of those figures. In Costa Rican law, these include the matter of costs against the losing party (article 267 of the Code of Criminal Procedure); the publication of the judgment in crimes against honor (article 155 of the Penal Code); the reconstruction, suppression, reform, restitution, or registry rectification derived from the falsification of public instruments (article 483 of the Code of Criminal Procedure); the registration of certain types of rulings (articles 30 subsections Nombre05 and k, 25 first paragraph, 36 ninth and tenth paragraphs of the Code of Criminal Procedure and the Law of the Judicial Registry and Archives) and forfeiture (comiso). This has been regulated in countries like Germany and Spain and is accepted by the majority of the doctrine, although without agreeing on the appropriate name to use, but making it clear that it does not share the characteristics of the institutions indicated in previous sections: "...Nombre47 criticizes the unitary positions (...) pointing out that (...) forfeiture (comiso) is a phenomenon of a complex nature with a very broad functional scope, since it not only fulfills a punitive task, but also restitution, compensation, policing, and assurance tasks, and even procedural tasks of an evidentiary and precautionary type (...) In the same sense, Nombre48 and Nombre49 are of the opinion of the complex nature of forfeiture (comiso) (...) Nombre50 (...) González Navarro raises the mixed character of the institution (...) In contrast to penalties or security measures, accessory consequences are coercive acts or sanctions of their own nature, legally linked to the imposition of a penalty for an intentional crime or misdemeanor or may be linked to it by judicial pronouncement in certain cases. Thus, the placement of forfeiture (comiso) (...) as an accessory consequence implies that its foundation is neither the guilt nor the dangerousness of the active subject of the crime." Nombre41, Nombre41. El comiso: análisis sistemático e instrumentación cautelar. Editorial Universidad del Rosario, 1st edition, Bogotá, 2007, pp. 59-60 and 62. Indeed, our legislation arises from the Model Penal Code for Latin America, where the issue of the legal nature and correct placement of forfeiture (comiso) was widely discussed: "Ultimately, the opinion prevailed to place forfeiture (comiso) with a penal character, but not as a penalty, and outside the civil consequences of the punishable act, rejecting the idea of this phenomenon as a procedural measure (...) One of the agreements of the Fourth Plenary Meeting held in Caracas, Venezuela from January 20 to 30, 1969, No. 89, was to include a text on forfeiture (comiso), but with the understanding that it did not have the character of a penalty or an effect of civil liability (...) Why, then, when ordering the regulations of that Code, was (...) forfeiture (comiso) included under the Title (...) relating to 'Civil liability derived from the crime'? (Nombre51, Nombre03. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, pp. 369-370). G) That said, this Tribunal considers that, in effect, Costa Rican forfeiture (comiso) is, simply, a consequence stipulated by the legislator for the crime (for certain types of crimes, as stated and will be revisited) that, although it has penal features (legality, burden of proof, innocence, link to the act), civil features (it proceeds against third parties), and administrative features (state coerciveness and ex officio action), does not precisely fit any of them and, therefore, principles specific to the penalty (such as culpability or temporality), to security measures (such as personal nature), or to reparation (such as the dispositive principle) cannot be applied to it. Hence, it is valid for the legislator to regulate it to be applied ex officio, establishing the loss of ownership as definitive, etc. However, this does not mean that, as a measure that ultimately deprives rights, it is not subject to principles such as legality and proportionality, which are inherent, indeed, to any sanctioning matter, including the area of administrative law, as they are the sole limiters of the State's imperium power, as will be addressed in greater detail below" (emphases added). In the present case, there is no typical, unlawful, and culpable act to decree such a measure, nor can any factual or legal basis be deduced to consider that the movable or immovable property of the accused should receive said measure, since not only has the existence of any (criminal) crime not been demonstrated, but neither have civil or administrative debts or illicit acts, or the breach of regulations of any other nature, been under discussion, in order to make that decision. Therefore, it is not necessary to delve into the prosecutor's appeal, which presupposes the illegality of the conduct, an illegality that this Chamber does not share according to the reasons extensively outlined above.

POR TANTO:

The appeal filed by the accused personally and with the legal representation of attorney Juan José Picado Herrera is granted, and the appeal initiated by his private defender Carlos Luis Ibarra García is partially granted. The prosecutor's appeal is declared without merit. Consequently, the conviction judgment decreed in the proceedings is reversed, as well as the decision of forfeiture (comiso) of property decreed, and, instead, Nombre01 is ACQUITTED of all penalty and liability for the crime of LEGITIMACIÓN DE CAPITALES that has been attributed to him, ordering the full restitution of the confiscated, seized, or annotated property, for which forfeiture (comiso) is rejected; his immediate freedom and the cessation of any precautionary measure issued against him, unless another cause prevents it. The matter is resolved without special ruling on costs. In all other respects, that is, insofar as the judgment rejects additional forfeitures, orders the lifting of precautionary measures, and the return of other property and case files, the decision remains unchanged. NOTIFY.

Rosaura Chinchilla Calderón Lilliana García Vargas Edwin Salinas Durán Judges (Juezas y juez) Contra : Nombre01 Delito : Legitimación de capitales Ofendido : Sistema financiero y otros

Res: 2013-0 337 TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL. Segundo Circuito Judicial de San José. Goicoechea, a las quince horas con veinticinco minutos del diecinueve de febrero de dos mil trece.

RECURSOS interpuestos en la presente causa seguida contra Nombre01, mayor de edad, [...]; por el delito de LEGITIMACIÓN DE CAPITALES en perjuicio de LA ADMINISTRACIÓN DE JUSTICIA. Intervienen en la decisión del recurso, las juezas Rosaura Chinchilla Calderón y Lilliana García Vargas y el juez Edwin Salinas Durán. Se apersonaron en esta sede, la licenciada Natalia Sarkis Fernández, fiscal del Ministerio Público; el encartado, mediante escrito autenticado por el licenciado Juan José Picado Herrera y el licenciado Carlos Luis Ibarra García, defensor particular del acusado y,

RESULTANDO:

1. Que mediante sentencia Nº 826-2012 de las dieciséis horas del treinta de agosto de dos mil doce, el Tribunal Penal del Primer Circuito Judicial de San José, resolvió: "POR TANTO: Artículos 24, 39, 41 y 42 de la Constitución Política; 11 de la Declaración Universal de Derechos Humanos; 8 incisos 2 y 4 de la Convención Americana de Derechos Humanos, 14, 7 del Pacto Internacional de Derechos Civiles y Políticos; 6 de la Convención de las Naciones Unidas contra la Delincuencia Organizada; artículos 1, 30, 31, 45, 110 del Código Penal; 1, 11, 45, 136, 142, 258, 324, 341 a 357 ,360 a 365 y 367 del Código Procesal Penal, artículos 69, 83 a 92 de la Ley 8204 sobre Estupefacientes, Sustancias Psicotrópicas, Drogas de Uso no Autorizado y Actividades Conexas, Legitimación de Capitales y Financiamiento al Terrorismo y sus Reformas; artículo 92 de la Ley 9745 Código Tributario; se resuelve: 1.- SOBRE LA RESPONSABILIDAD PENAL Se declara a Nombre01 autor responsable del delito de LEGITIMACIÓN DE CAPITALES PROVENIENTES DE DELITO GRAVE cometido en perjuicio de la Administración de Justicia y el Orden Socio-Económico de Costa Rica y en tal carácter se le impone el tanto de DOCE AÑOS DE PRISIÓN que deberá cumplir en el lugar y forma que determinen los respectivos reglamentos carcelarios previo abono de la preventiva sufrida si la hubiere. 2.- SOBRE LA MEDIDA CAUTELAR DE LA PRISIÓN PREVENTIVA Habiendo variado la situación jurídica del acusado y ahora condenado Nombre01 en la que existe un juicio de certeza sobre su autoría y responsabilidad y a efecto de garantizar el cumplimiento de la acción de la Justicia y la válida terminación de este proceso en la que se ha impuesto una pena de prisión que excede en mucho la concesión de algún beneficio penitenciario o judicial se ORDENA PRÓRROGA DE LA PRISIÓN PREVENTIVA POR EL PLAZO DE SEIS MESES contados a partir del día de hoy, con vencimiento el próximo 28 de febrero 2013 fecha en que será revisada nuevamente. De haber adquirido firmeza este fallo antes de esa fecha se pondrá al condenado a la orden del Instituto Nacional de Criminología para lo de su cargo. 3.- SOBRE EL COMISO DE LOS BIENES a.- Se ordena el comiso definitivo a favor del Instituto Costarricense sobre Drogas de los siguientes bienes […]. c.- SE ORDENA EL COMISO DEFINITIVO a favor del Instituto Costarricense sobre Drogas de los siguientes PRODUCTOS FINANCIEROS: de las sumas líquidas que se encuentran en la cuenta número […] a nombre de Nombre01 en el BCR; en la[…].- SE ORDENA EL LEVANTAMIENTO DE LAS MEDIDAS CAUTELARES que pesan sobre los bienes muebles, inmuebles y productos financieros que no se afecten con esta sentencia. e.- SE ORDENA LA DEVOLUCIÓN al condenado Nombre01 o quien autorice de los documentos variados que se incautaron en las diligencias de allanamiento, así como del dinero efectivo encontrado en la vivienda del condenado Nombre01 cuyas boletas de depósito se lucen al folio 234. Se concede a la parte interesada el plazo improrrogable de TRES MESES contados a partir de la firmeza del fallo para proceder al retiro de los objetos y valores cuya devolución se está ordenando -caso contrario- vencido el plazo se procederá a su destrucción o comiso. f.- SE ORDENA LA DEVOLUCIÓN a la Municipalidad de Limón de los expedientes administrativos a nombre de los negocios comerciales y personales que involucran al acusado Nombre01. Se ordena la comunicación de este fallo al Instituto Nacional de Delincuentes y al Instituto Nacional de Criminología para lo de su cargo. g.- Son las costas a cargo del Estado por haberse procedido a instancia del Ministerio Público. Se notificará por lectura íntegra. NOTIFÍQUESE. Nombre02. Ricardo Barahona Montero. Linda Casas Zamora" (sic, folios 835 a 934).

2. Que contra el anterior pronunciamiento, interpusieron los recursos que aquí se conocen: la licenciada Natalia Sarkis Fernández, fiscal del Ministerio Público; el encartado, mediante escrito autenticado por el licenciado Juan José Picado Herrera y el licenciado Carlos Luis Ibarra García, defensor particular del acusado.

3. Que verificada la deliberación respectiva, una vez celebrada la audiencia oral solicitada, de conformidad con lo dispuesto por el artículo 466 del Código Procesal Penal (reformado por leyes Nº 8837 y Nº 9021 y siguiendo la numeración indicada en la Fe de Erratas adoptada mediante acuerdo del directorio legislativo publicado en La Gaceta Nº 51 del 12 de marzo de 2012, que es la que se usará en este texto), el Tribunal se planteó las cuestiones formuladas en las impugnaciones.

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

Redacta la jueza Chinchilla Calderón, y;

CONSIDERANDO:

I.- En lo que se denominó primer motivo por la forma, el defensor particular del encartado, licenciado Carlos Luis Ibarra, alegó la violación a la Ley de Traducciones e Interpretaciones Oficiales N° 8142 del 05 de noviembre de 2001, al reglamento de dicha ley, decreto 30167-RE de 25 de enero de 2002 y la desaplicación del numeral 130 del Código Procesal Penal, pues la persona designada como intérprete oficial (no traductora), Nombre03, no lo era. Refiere que si bien antes no se requería intérprete oficial, desde esa ley sí se precisa y, para tener tal carácter, debe estar inscrita, tanto en el Ministerio de Relaciones Exteriores, como en la Dirección Ejecutiva del Poder Judicial, sin que la designada se encuentre en la lista oficial, tal y como dice acreditar con los documentos de folios 1102 y 1103. Por ello considera que la interpretación que ella realizó de las declaraciones de los testigos de la Fiscalía de Nueva York, Nombre04 y Nombre05, no pueden formar parte de la prueba a valorar, pues no fue prueba legal y se ha violado el debido proceso, al ser elementos en inglés. Solicita que se declare la ineficacia de esa prueba. Al contestar el recurso en forma oral (pues omitió hacerlo por escrito, al haberse solicitado audiencia ante esta Cámara) la Fiscalía señaló que dicho motivo debía rechazarse porque no hay ningún agravio, dado que no se demostró error en la labor desempeñada por la traductora, aunque ella no estuviera en la lista oficial de intérpretes. Se rechaza el motivo. A pesar de que este asunto, por las razones que se dirán en otros acápites, debe ser resuelto por el fondo, es necesario analizar el tema propuesto en este motivo, pues de esto depende el uso, o no, de algún material probatorio en las restantes consideraciones. En tal contexto hay que aceptar que, e fectivamente, mediante ley Nº 8142 del 05 de noviembre 2001, denominada Ley de Traducciones e Interpretaciones Oficiales, vigente a partir de su publicación el 26 de noviembre de 2001, se reguló el tema de las traducciones e interpretaciones oficiales. Dicha legislación, en su primer numeral, distingue la traducción (que es el traslado de lo escrito de un idioma a otro) de la interpretación, que es el mismo proceso pero del lenguaje oral y señala, en el numeral 3, que "Las instituciones públicas requerirán la traducción oficial de todo documento emitido en un idioma diferente del español, con miras a producir efectos legales en Costa Rica..." (el destacado no es del texto original) encargando, en el numeral 5, a la Dirección Jurídica del Ministerio de Relaciones Exteriores y Culto el autorizar y sancionar a las personas acreditadas como traductoras o intérpretes oficiales, a quienes esa misma normativa les otorga fe pública en los documentos que, en el ejercicio de tales cargos, expidan. Adicionalmente, se señala que el nombramiento de ellas deberá hacerse mediante acuerdo ejecutivo del Ministerio de Relaciones Exteriores y Culto, si cumplen los requisitos del artículo 6 de esa ley, entre los que se menciona el ser costarricense, o residente con un mínimo de cinco años de domicilio continuo en el país; ser mayor de edad; poseer, tanto en español como en la lengua meta, el dominio propio de una persona versada en sus expresiones cultura les ; tener conocimientos actualizados en los idiomas en que solicita el nombramiento; disponer de acceso a los recursos informáticos, los materiales de referencia y las herramientas adecuadas para desempeñar la profesión; contar con un mínimo de cinco años de experiencia continua, en la traducción o interpretación profesional, comprobada en cada uno de los idiomas en que solicita el nombramiento; no estar inhabilitado por el Ministerio de Relaciones Exteriores y Culto; presentar una declaración jurada de que no tiene ninguno de los impedimentos señalados en esa Ley y aportar certificación de haber aprobado el examen para traductor o intérprete que, para los efectos de esta Ley, realice cualquier entidad autorizada por el Ministerio de Relaciones Exteriores y Culto, por medio de su Dirección Jurídica. No obstante, en esa normativa no se previó ninguna sanción administrativa o procesal ante su incumplimiento, sino que solo se reguló el régimen disciplinario de las personas allí inscritas. Asimismo, el único transitorio de esa ley estableció que "Los traductores oficiales e intérpretes oficiales nombrados antes de la vigencia de esta Ley, conservarán los derechos adquiridos." El Reglamento a esa normativa se emitió mediante Decreto Ejecutivo Nº 30167-RE de 25 de enero del 2002, publicado en el Diario Oficial La Gaceta N° 43 de 1° de marzo del 2002. Esta última normativa, a la par de la fe pública, reguló el secreto profesional (artículo 7) y, paradójicamente, también el carácter público de la traducción e interpretación oficial (artículo 12), así como una serie de formalidades del acto y puntualizaciones sobre los requisitos, trámites y régimen disciplinario de las personas así designadas. Por su parte, el Código Procesal Penal se ocupa de reiterar la necesidad de traducciones e interpretaciones para las personas que no comprendan el español, o de reiterar que este es el idioma oficial del proceso (ver, a tales fines, los artículos 14, 130, 131), producto de las obligaciones internacionalmente contraídas relacionadas con ese tema y su vínculo con el derecho de defensa (ver artículos 8.2.a de la Convención Americana sobre Derechos Humanos y 14.3.a y f. del Pacto Internacional de Derechos Civiles y Políticos) al punto de no autorizar que se le cobren, al encartado, los honorarios pagados a tal profesional (artículo 265 párrafo final) pero sin hacer regulaciones específicas sobre el tema, salvo la referencia contenida en el numeral 215 párrafo final que señala que, en materia de intérpretes o traductores, por tratarse de saberes ajenos a lo jurídico, se aplicarán analógicamente las reglas de los peritajes. No obstante, dado que la legislación procesal es anterior (entró en vigencia en 1998 y data de 1996) y es general, aquella normativa, especial y posterior, ha de predominar por sobre ella, de modo que las referidas reglas del peritaje, específicamente en lo referente a la forma y requisitos para designación de la persona encargada de la traducción o interpretación, han de entenderse aplicables antes de la vigencia de esa normativa. Desde este punto de vista, lleva razón el impugnante pues, en efecto, en este asunto sirvió como traductora de la prueba documental la señora Nombre06, nombrada por el ente fiscal por inopia, dado que en la lista oficial, dada por la Dirección Ejecutiva del Poder Judicial, no había ninguna profesional disponible. Este nombramiento no ha sido cuestionado. Asimismo, el Tribunal nombró como intérprete para la recepción de las declaraciones orales, a Nombre07 (ver folio 634), la que aceptó y juró el cargo (ver folio 637) sin que, ni al momento de ese nombramiento ni, posteriormente, en su intervención (ver folios 658 a 661) se efectuara alguna oposición de la defensa que, por el contrario, desplegó su interrogatorio a los testigos usando el servicio de la referida intérprete. Consta, asimismo, a folios 1102 y 1103 que el procedimiento seguido por el Poder Judicial para la designación de tales profesionales, debidamente publicado en el Boletín Judicial 134-12 del 11 de julio de 2012, es acorde con aquella normativa (de mayor rango) y que la referida profesional no está inscrita, como intérprete, en el Ministerio de Relaciones Exteriores y Culto. Empero, aunque la argumentación jurídica del impugnante es cierta, no lo es menos la objeción fiscal, dado que, aunque es obvio que hay un vicio (desde que tampoco se acreditó que la intérprete lo fuera desde antes de la vigencia de esa ley para mantener sus derechos), este no solo no fue protestado oportunamente (ni al nombrarse a dicha persona ni al efectuar su labor) y, más bien, la defensa usó sus servicios profesionales de la intérprete para formular su interrogatorio, aceptando tácitamente el acto, con lo que aquel vicio se convalidó (artículo 177 inciso b) del Código Procesal Penal) sino que, ya en esta sede, no se argumente ningún tema específico en el que pueda determinarse que dicha persona hizo, de forma errónea, su labor y que, entonces, lo que se consignara que dijeron los declarantes que hablaban inglés, no fuera exacto al traslado lingüístico que se hizo al español. El artículo 439 del Código Procesal Penal señala que es imprescindible la existencia de un agravio para impugnar y que éste no puede ser alegado por quien haya contribuido a provocar el vicio, salvo que se lesionen derechos constitucionales o la asistencia y representación del encartado lo que, tampoco, se menciona, siquiera, en el motivo. Entonces, lo que se busca es el cumplimiento de los ritos por sí mismos considerados, prescindiendo de los fines para los que éstos fueron creados, lo que no es otra cosa que un formalismo sin sentido, al no tutelar derecho alguno y, desde esa perspectiva, debe rechazarse el alegato lo que, entonces, posibilita que, inclusive el resto de la decisión de esta Cámara, se pueda apoyar en las declaraciones, interpretadas, de los declarantes norteamericanos.

II.- El encartado, a título personal, mediante escrito autenticado por el licenciado Juan José Picado Herrera, plantea recurso de apelación contra la sentencia condenatoria dictada en su contra. En el primer acápite de su recurso, alega que se vulneró el principio de inocencia como elemento esencial del debido proceso. Cita disposiciones constitucionales, convencionales y legales; transcribe extractos de la sentencia y refiere que en el delito que se le atribuye, de legitimación de capitales introducidos por vías bancarias (y no en sacos o de forma furtiva) y provenientes de la empresa Peace Pipe de New York, es necesario acreditar la preexistencia de otro delito (para este asunto, contrabando de cigarrillos en la Reserva Indígena Poospatuck al venderlos, sin impuestos, a no indígenas, aprovechándose de que Nombre01, esposa del hermano del encartado, era […], quienes pueden vender cigarrillos sin impuestos a otros indígenas) cometido, en este caso, por otra persona (el hermano del encartado Nombre07) en otro país (Estados Unidos de Norteamérica). Señala que la presunción de inocencia nace desde que una persona es sospechosa y se derriba solo con una sentencia condenatoria firme, siendo que, en el ínterin procesal, dicha presunción pasa a convertirse en un derecho fundamental, sin que ningún operador del derecho pueda apoyarse en una supuesta culpabilidad antes de ser declarada. Considera que en este tipo de ilícitos, dicha presunción existe no solo en el proceso que nos ocupa sino, inclusive, en el proceso previo para demostrar el delito preexistente. Sin embargo, estima desacertada la inteligencia jurídica del Tribunal sentenciador al hacer una equivalencia entre detención (de su hermano en Estados Unidos) y la culpabilidad de ambos, pues derribaron el principio a partir del momento en que a Nombre07 se le detuvo en Estados Unidos el 02 de agosto de 2004 cuando, no es sino muchos años después, en que se le encuentra responsable, a la fecha sin firmeza y no por todos los hechos que se le atribuían, nada de lo cual estaba en capacidad de conocer el encartado en esta causa para el momento en que recibió y administró el dinero. Transcribiendo partes de la sentencia, refiere que el juicio con jurado en Estados Unidos, seguido contra su hermano, inició en octubre de 2007 y finalizó en mayo de 2008 en que se le declaró inocente de homicidio, robo e incendio pero culpable de portación ilegal de arma y venta ilegal de cigarrillos o contrabando, ante lo que la defensa interpuso diversas gestiones. En una de ellas, el juez Hurley revirtió la decisión del jurado y lo exoneró de responsabilidad por la venta de cigarrillos (al considerar, como probable, que Nombre01 no conociera acerca de la prohibición legal de vender cigarrillos sin impuestos dado que la ley no era suficientemente clara) y solo mantuvo el cargo de la posesión ilegal de arma, todo ello en enero de 2010. Señala que este delito admite, en Costa Rica, suspensión del proceso a prueba, por lo que no tiene necesariamente que ser sentenciado, a más de que, en Estados Unidos, se tomaron en cuenta como agravantes de la pena hechos por los que él había sido absuelto. Por último, por analogía, en nuestro país ese no es un delito grave, a más de que no puede tomarse como base de la necesaria preexistencia delictiva, al no tener relación con el dinero. En cuanto a la venta de cigarrillos, los cargos desaparecieron y, entonces, el aquí imputado no tenía por qué dudar de los dineros ingresados. Luego, el Gobierno norteamericano llevó esa decisión a la Corte de Apelaciones la que, en julio de 2012, reinstauró los cargos de contrabando sin que, a la fecha, se le haya fijado pena, pero siendo en esa última data en que se puede hablar, con certeza, de que nació a la vida jurídica la culpabilidad de Nombre07. Solo a partir de entonces podía, el aquí imputado, saber que el dinero que aquel enviaba era ilícito. Señala que con la detención lo único que él podía saber era que su hermano se enfrentaba a un proceso legal, pero no que iba a ser declarado culpable, decisión que tuvo muchas vicisitudes jurídicas favorables para su hermano, como se mencionó. Considera arbitrario e ilegal que el Tribunal sentenciador se bas ara en la fecha de detención del hermano para fundamentar esta sentencia, al decir que el encartado, a partir de ese momento, debía saber que los dineros eran ilícitos. Por ello lo condenan y decretan comisos. Solicita que esta Cámara, expresamente, se pronuncie sobre la legalidad o no de esa decisión del a quo. Agrega que él no podía saber, con la sola detención de su hermano en Nueva York, la ilicitud de los dineros que él enviaba producto de la venta de tabaco en Estados Unidos, actividad de la que él sigue convencido que era legal y conforme a la costumbre indígena de dicho país. Añade que la sentencia confunde cargos acusados con cargos probados, haciendo especulaciones sin sustento en la decisión misma de los tribunales norteamericanos que, a la fecha, no se encuentra firme. Considera que, ante esa falta de decisión firme, el Tribunal se auto-atribuyó un “derecho” que no le correspondía, sino que era solo de incumbencia de los Tribunales norteamericanos, a saber, juzgar si los delitos base se dieron en dicha nación, arribándose, aquí, prácticamente a una condena contra su hermano, vulnerando todos los mecanismos procesales, legislativos y de jurisdicción pues los jueces se extralimit aron , acción en la que, además, incurrieron en acciones garrafales, como la de tomar en cuenta una declaración jurada de la señora Nombre01, cuñada del aquí encartado y, por lo tanto, susceptible de abstenerse de declarar en nuestro medio, conforme lo disponen los artículos 36 constitucional y 205 de la ley procesal, tema que los jueces ni siquiera se cuestionaron. “Creo que el Tribunal se ha excedido en su función de juzgar, pues traspasa fronteras y concluye de un proceso que allá no ha terminado y que no tiene injerencia. Tampoco es que estamos diciendo que el análisis sobre la preexistencia del delito tenga que se (r, sic) muy ‘ligero’ (sic) pero este tiene necesariamente que ser sobre una sentencia de culpabilidad (…) Y esa responsabilidad es completamente de los Tribunales del hermano país y no del tribunal de juicio de nuestro país” (folio 1020). Argumenta que si, como se trata en este asunto, mucho del tabaco vendido lo fue a personas indígenas norteamericanas y que, por ende, estaba exento de impuestos, aun aceptando que hubiera algún tabaco vendido a no indígenas, que no pagara impuestos pese a que sí debía pagarlos, no hubo estudio contable y, entonces, se desconoce cuánto dinero del enviado desde ese país al nuestro era legal (producto de ventas exentas de impuestos a indígenas) y cuánto no, preguntas que no fueron obstáculo para que el Tribunal condenara y comisara todo, por lo que el indicio del dinero enviado es anfibológico, generaba dudas y no podía sustentar una condena sino la absolutoria. Refiere que su dolo es tangible a partir de julio de 2012, no antes y que el Tribunal rompió el esquema lógico de análisis judicial, pues primero se le condena a él que a su hermano, hecho preexistente que debía estar firme, sin que lo esté. Pide su absolutoria y se revierta el comiso, al no existir hecho previo ilícito, pues no se puede determinar que los dineros ingresados sean producto de la venta ilegal (y no de la legal) de cigarrillos y porque, además, el patrimonio se fue acrecentando con los dividendos e intereses generados, lo que sí era legal, pese a lo cual se decretó el comiso generalizado. En su defecto pide el reenvío. En el segundo motivo se argumenta la violación al principio in dubio pro reo y la incorrecta valoración de la prueba, contraria a las reglas de la sana crítica. Señala que él no es abogado y no conoce la ley norteamericana, por lo que no tenía por qué saber que si su hermano venía enviando dinero de forma legal y regular, a través del sistema bancario nacional, a partir de su detención el 02 de agosto de 2004, debía sospechar siquiera que ese dinero era ilícito, cuando, sin embargo, esa decisión no ha sido pacífica en el sistema judicial norteamericano, al punto que un juez revocó la decisión del jurado y el Tribunal local no tiene claros cuáles dineros fueron legítimos y cuáles no, ni cuándo se movieron estos últimos, sino que se partió de que todo lo ingresado desde el día de la detención, el 02 de agosto de 2004, lo era. Refiere que no hay contabilidad que demuestre a cuánto ascienden las ventas de cigarrillos a no indígenas (que debían pagar impuestos) ni cuánto las efectuadas a indígenas (que no los debían pagar y, por ende, eran ventas legales) ni que todo lo ingresado al país haya sido lo ilegal, sino que lo enviado a Costa Rica pudo ser lo legal. Señala que, en este asunto, no se alude a capitales que, en todo el trasiego, sean ilegales, como los surgidos del narcotráfico, sino que son dineros obtenidos de ventas de tabaco, que son legales si se pagan impuestos para no indígenas y que las transacciones se hicieron, no en sacos o de forma furtiva, sino a través del sistema bancario de ambos países, siendo contradictorio que Costa Rica decrete el comiso de bienes y no que estos se pongan al servicio del gobierno norteamericano, por sus reclamos de impuestos. Agrega que los jueces casi le hicieron un juicio a su hermano, pues tuvieron por probada la preexistencia de un delito grave sin haber terminado el proceso en Norteamérica, pues a Nombre01 no se le ha impuesto pena aún, para saber si estamos frente a un delito grave. Solicita el reenvío o la revocatoria de la decisión de condena, con su inmediata libertad. Por su parte, el licenciado Carlos Luis Ibarra, defensor particular del encartado, plantea recurso de apelación. En lo que denomina, impropiamente dado el tipo de impugnación ahora vigente, segundo motivo por la forma se alega el quebranto del artículo 2 del Código Procesal Penal pues el Tribunal sentenciador, pretendiendo hacer un uso correcto de la doble imputación o identidad de la norma (según el cual, tanto la legislación norteamericana como la nacional deben contemplar, como delito, el contrabando), hace alusión a la pena para justificar este requisito, cuando lo que la doctrina señala es que la conducta debe ser ilícita en ambos países y, en el nuestro, está regulada en el artículo 211 de la Ley General de Aduanas y no en la mencionada por el a quo, el cual puso palabras en su boca que no dijo (como que no se daba esa doble incriminación). Sin embargo, tal delito está sancionado con pena de uno a cinco años por lo que, al ser la sanción mínima del hecho precedente, de un año, no sirve como base para el delito de legitimación de capitales que, entonces, no ha nacido a la vida jurídica, pues el numeral 69 de la ley N° 8204, antes de la reforma de 2009, no definía qué debía entenderse por 'delito grave', como tampoco lo hacía otra disposición del ordenamiento, antes de la Convención de las Naciones Unidas contra la Delincuencia Organizada o Convención de Palermo, que no es aplicable al asunto. Señala que debe tomarse el extremo inferior de la sanción, no el superior, para saber cuándo se está ante un 'delito grave'. Empero, el Tribunal hizo una interpretación analógica del numeral 92 del Código de Normas y Procedimientos Tributarios Nº 4755 del 03 de mayo de 1971 (ley anterior y general) en donde no se contempla el delito de contrabando, que está previsto en una ley especial y posterior (Ley General de Aduanas N° 7557 del 20 de octubre de 1995) que fue inaplicado y al que el mismo artículo 1 del Código de Normas y Procedimientos Tributarios excepciona y al que remite el numeral 223 de la Ley General de Aduanas. Con tal proceder los jueces aplican una norma que sí tiene una pena mínima superior a cinco años y no la ley correcta, cuya pena mínima es de un año y que haría imposible que existiera un delito grave como base de la conducta aquí juzgada. Solicita la nulidad de lo actuado para nueva sustanciación. En el primer motivo de apelación por el fondo y con algunas citas doctrinales, se alega la inaplicación de los artículos 20, 102 y 182 del Código de Comercio pues las sociedades anónimas tienen personalidad jurídica propia y el ser socio de ellas no hace, a dicha persona, su dueña, ni convierte al individuo en toda la persona jurídica, sino que siguen siendo dos sujetos con personalidad diferenciada. Eso lo estima importante porque el dinero recibido provenía de Nombre08 (empresa propiedad de la esposa de Nombre01) con el banco norteamericano Nombre09 , sin que el personero físico o representante legal , deba responder personalmente por las obligaciones contraídas por las empresas, pese a lo cual, el Tribunal señaló que el dinero transferido por aquella empresa lo fue por Nombre07 y que era de él, lo que no encuentra apoyo probatorio. En Estados Unidos, ni la empresa, ni la esposa de Nombre01 (indígena), fueron denunciadas, por lo que se violan esos preceptos si se estima que el dinero era de su hermano norteamericano, cuando éste solo actuaba como representante de una empresa, según la prueba aportada en el juicio. Por ello, el delito de legitimación de capitales nunca nació a la vida jurídica pues no hubo un delito precedente de esa empresa o de su propietaria indígena, sino del hermano del encartado (quien, según dijo el testigo Nombre01, era propietario de apartamentos y condominios y de un centro comercial y administraba esa empresa, pero cuyos efectos no le son imputables). Considera imposible hacer una división de los dineros recibidos por el hermano del encartado, a título personal, de otros y, por eso, pide el dictado de una sentencia absolutoria. Como segundo motivo de apelación por el fondo se reprocha una interpretación ampliativa, analógica e indebida de los artículos 69 de la Ley N° 8204 y 92 del Código de Normas y Procedimientos Tributarios pues las autoridades norteamericanas encontraron responsable a Nombre01 del delito de contrabando (vender cigarrillos a no indígenas sin pagar impuestos), conducta que, en Costa Rica, conforme a la doble incriminación, corresponde a la establecida en la Ley General de Aduanas (artículo 211 denominado contrabando) y no en el Código de Normas y Procedimientos Tributarios, predominando aquella sobre éste según lo indicara el voto número 885-2003 de la Sala Tercera. El delito contemplado en la Ley General de Aduanas tiene prevista una pena mínima de un año, por lo que no puede conceptualizarse como delito grave, pues el artículo 69 de la Ley N° 8204, sin la reforma de 2009 (en donde establece el tope en cuatro años), no establecía qué debía contemplarse por tal. Pide la revocatoria de la sentencia y la absolutoria del encartado. Como tercer motivo por el fondo el recurrente, luego de hacer un resumen de los argumentos esbozados en otros motivos, señala que se pudo violentar el principio de legalidad ya que , cuando el numeral 69 de la Ley N° 8204 señala “quien realice cualquier otro acto”, traslada a poder del juez el definir la conducta tipificada, echando por la borda la reserva legal en materia de tipificación delictual, sin que tal proceder lo autorice la Convención de Palermo, que obliga a legislar sobre el tema. Refiere que esa es una ley penal en blanco, llenada con disposiciones administrativas y señala que Nombre01 fue detenido el 04 de agosto de 2004 y el Tribunal le atribuyó al encartado haber recibido dinero de él (que administraba bajo la figura del mandato y no era suyo, sino de una sociedad comercial, la cual no ha sido acusada de cometer delito, a más de que Nombre01 tenía otras actividades distintas a gerenciar la venta de cigarrillos) a partir del 06 de agosto de 2004 (transferencia por cuatro millones cuatrocientos mil dólares que, dice, no aparece en la documentación contable del encartado) y durante los años 2005 y 2006 (por casi seis millones de dólares) es decir, cuando ya estaba aquel estaba en prisión, sin que sea posible hacer transferencias en tales condiciones y sin que, necesariamente, ese dinero haya sido producto del delito de contrabando, pues esto no se comprobó, sino que los recursos a nombre de Nombre01 —que alimentaron el fondo redimido de crecimiento en dólares y operaciones subsecuentes, efectuado por el Banco de Costa Rica, a petición del imputado— eran transferencias hechas por la sociedad Nombre08 con el Banco Nombre09 de Nueva York, que no fue acusada de delito y que, en el peor de los casos, podrían ser parte de los dividendos de dicha persona, si fuera socia, sin comprobarse el quantum de estos y sin que pueda saberse si todo ese dinero provenía de la venta de cigarrillos sin impuestos a no indígenas o de otras actividades de Nombre01, nada de lo cual consta con certeza. Agrega que la sentencia le atribuyó al aquí encartado adquirir, con aquel dinero, diferentes inmuebles a partir de 2007, pero eso no puede ser indicio de nada, menos de encubrir el origen, que era claro, desde que, durante mucho tiempo, el dinero estuvo sin movimiento y solo varió la estrategia de inversiones, pues los bienes siempre fueron puestos a nombre del encartado o de una compañía que le pertenece únicamente a él, sin que se buscaran testaferros, se llevaran dobles contabilidades, se abrieran cuentas bajo nombres simulados o, de cualquier otra forma, se dificultara el rastreo de esas sumas. Considera que el delito previo no se acreditó, que todos esos dineros provenían de una empresa legalmente establecida en Estados Unidos (lugar que no es un paraíso fiscal sino que es estricto en sus controles) y que estuvieron sometidos a verificación a través de la Ley Patriótica de ese país, incorporándose al sistema bancario de ese país y del nuestro, sin que se encontrara ninguna irregularidad, lo que se mantuvo por varios años sin que, entonces, pudiera, de un momento a otro, presumirse el origen ilícito de estos, que no se acreditó. Cita al autor Nombre10 para señalar que, aun cuando se sepa el origen ilícito del dinero, si no hay afán de ocultar o encubrir, no se da el delito en comentario y que la fórmula “por cualquier acto” atenta contra el principio de legalidad criminal. Solicita la revocatoria de la sentencia y la absolución del endilgado. En el cuarto motivo de fondo se alega la violación del numeral 34 del Código Penal pues él argumentó la existencia de un error de tipo por parte del encartado (y no de prohibición como dice que, incorrectamente, interpretaron los jueces), al desconocer que los dineros recibidos y la compra de propiedades a nombre de su hermano efectuada con esos fondos, se hiciera con recursos ilícitos. Refiere que Nombre01 ha sido la primera persona condenada, en Estados Unidos, por el delito de contrabando por venta de cigarrillos sin impuestos a no indígenas ya que, por política social, en ese país, durante mucho tiempo, no se castigó tal ilícito, aun cuando había ley expresa. Señala que, por esa situación ambigua de las autoridades norteamericanas, que decidieron no aplicar una ley, podía considerarse que la venta de cigarrillos libres de impuestos en las reservaciones indígenas, era algo que estaba dentro del marco legal, al punto que se hacía, y sigue haciéndose, a la vista y paciencia del público, lo que pudo haber confundido a Nombre01, pues la prohibición de alegar ignorancia a las leyes se refiere a las nacionales y no a las extranjeras. Es decir, él pudo tener un error sobre hechos integradores del delito de legitimación de capitales y no tener conocimiento, o dolo, de que el dinero fuera ilícito y sin dolo no hay tipo penal subjetivo. Solicita la revocatoria de la sentencia condenatoria y confiscatoria de bienes. En el quinto motivo por el fondo se alega la aplicación indebida de los artículos 87 y 89 de la ley N° 8204 referentes al comiso de los bienes pues el delito de legitimación de capitales no está probado más allá de toda duda, ya que el dinero recibido no se demostró que proviniera de un delito imputado a su dueña, la empresa Nombre08 o a su socia Nombre01. Pide la revocatoria de lo resuelto sobre este extremo y que se liberen los bienes, reintegrándose al patrimonio del encartado. Al contestar el recurso, la Fiscalía señaló que, los referidos recursos, debían declararse sin lugar porque no debe ponderarse la situación de Nombre01 en Estados Unidos con el principio in dubio pro reo; que los cuatro millones de dólares que la defensa dice que no ingresaron a las cuentas del aquí encartado, sí constan en los informes contables y en el peritaje y que, al margen de la situación del contrabando, resulta que el delito grave del que provenían los dineros, según la Fiscalía y los hechos probados, eran los de homicidio por encargo y otros.

II.- Aunque se trata de dos memoriales impugnativos, divididos, a su vez, en varios argumentos, por tener estrecha relación entre sí, se han resumido y se conocerán en forma conjunta, declarándolos con lugar, en lo que se dirá. En primer término, cabe advertir que esta Cámara no es competente para determinar si la frase "quien realice cualquier otro acto" contenida en el numeral 69 de la ley Nº 8204 violenta, o no, los principios de legalidad y reserva legal, contenidos en los artículos 39 y 121 inciso 1 constitucional, toda vez que, en Costa Rica, el contralor de constitucionalidad es de tipo concentrado y está en manos de la Sala Constitucional (cfr. artículos 4 y 73 de la Ley de la Jurisdicción Constitucional y 10 de la Constitución Política) por lo que solo a ese órgano compete hacer declaratorias, erga omnes, de inconstitucionalidad sin que, tampoco, lo pueda hacer este Tribunal ni aún para el caso concreto (ver, al efecto, la discusión efectuada en el voto, de mayoría, núm ero 1185-95 de la S ala Constitucional, vinculante erga omnes al tenor del artículo 9 de la Ley de la Jurisdicción Constitucional, sobre los alcances interpretativos del artículo 8 inciso 1 de la Ley Orgánica del Poder Judicial). De modo que si el recurrente tiene tal inquietud puede plantearla ante esa instancia, siguiendo el procedimiento y formalidades requeridas por nuestro Ordenamiento. En segundo término, del resumen efectuado atrás se puede colegir que solo dos de los argumentos de ambos impugnantes tienen relación con temas probatorios, a saber lo referente a la titularidad del dinero transferido desde Estados Unidos a Nombre01 (si era de Nombre01, de su esposa o de una empresa y, en este último caso, si afectaba en algo el que Nombre01 fuera solo su personero y el sentenciado en Estados Unidos) y lo concerniente al derecho de abstención de la esposa de aquel , no advertido, pese a que se incorporaron documentos incriminatorios. No obstante, esta Cámara va a diferir el orden de análisis de los alegatos para —aún al margen de la corrección, o no, de lo resuelto sobre esos tópicos— hacer pronunciamiento sobre el fondo del asunto pues, como se indicará, el resto de los planteamientos exige un análisis exhaustivo del delito de legitimación de capitales, tanto en su estructura objetiva y subjetiva como en su génesis y regulación en Costa Rica , que permiten resolver el asunto, sin necesidad de abarcar aquellos temas, es decir, aun manteniendo como hipotéticamente aceptable, para efectos argumentativos, lo que sobre el particular dijera la sentencia de instancia.

§1. El delito de legitimación de capitales es definido, por la doctrina mayoritaria, como un delito de relación o de enlace (no como un delito autónomo), es decir, que requiere la conexión con un hecho delictivo previo (Cfr. Nombre11 . Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26 y Nombre12 y BACIGALUPO, Silvina. Política criminal y blanqueo de capitales. Nombre13, 2009 y los autores allí referidos). Este hecho previo puede ser definido por el legislador de muy diversas maneras (aludiendo a un listado de delitos, a la gravedad de las sanciones o, en términos mucho más amplios, asumiendo como posible cualquier otro delito) pero es necesario que exista y eso significa que —de atribuírsele a un sujeto en particular— éste haya sido juzgado y encontrado responsable, en firme, del delito (salvo que ello no haya sido posible por circunstancias personales, eximentes de pena , en cuyo caso bastará la demostración del injusto penal, siempre y cuando ello no sea incompatible con la legislación específica de cada país). Solo cuando no sea posible esa imputación directa (ya sea porque no se identificó al autor, porque éste falleció o porque la acción penal se extinguió por ciertos motivos, excluida la prescripción de la acción penal porque es necesaria la vigencia de dicha acción en ambas legislaciones, a los efectos de esa valoración, salvo norma en contrario, que aquí no la hay), dicho hecho previo puede ser demostrado, dentro del juicio referente a la legitimación de capitales, obviamente a partir de las reglas probatorias del país que juzga. Como se ha indicado, esto es así en términos generales y sin desconocer que hay tendencias modernas que, para soslayar el tema probatorio del ' delito grave ' previo (en singular), prefieren aludir, por un lado, a ' actividad delictiva ' ( lo que implica desplazar el acento en el nivel de acreditación previ a que han de tener los diferentes estratos de la Teoría del Delito, según el sistema que se siga ) , posibilitando que el delito sea cometido por el mismo agente del evento precedente (lo que no es posible de considerarse delito de relación) y, por el otro, a darle a este delito una naturaleza de ilícito autónomo, estableciendo un bien jurídico diferenciado (que ya no es la administración de justicia como suele suceder en los delitos de encubrimiento sino el orden socio-económico) lo cual, algún sector doctrinal ha condenado en forma contundente: "...esta perspectiva generalmente inconfesada abiertamente y camuflada bajo la fórmula genérica de la protección al orden socioeconómico, ha conducido a perversiones legales e interpretativas, que no solo han llevado a una aplicación abusiva de los tipos de lavado de capitales, sino que, además y paradójicamente, han restado eficacia a los tipos penales con relación a su interés político criminal. La primera perversión de esta idea político criminal consiste en la ampliación de los delitos base del lavado de capitales a cualquier delito, ni siquiera grave e incluido el fraude fiscal. La segunda, relacionada con la anterior y, al igual que la anterior, basada en la inconfesada pretensión de eludir las exigencias de la prueba en Derecho procesal penal, tiene que ver con la pérdida de contornos seguros del elemento típico de que el autor actúe con conocimiento de que los bienes objeto del lavado tienen su origen en un delito" (Cfr. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26. También en el sitio web: www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pág. 66). Con esto se quiere adelantar, desde ya, que esta Cámara concuerda con tal autor cuando señala que: "...el dolo requiere, pues, el conocimiento del riesgo concreto o peligro de que exista una sentencia condenatoria, única que puede dar contenido al elemento normativo 'delito' en los tipos de lavado de capitales. La existencia de sentencia condenatoria previa es, pues, parte imprescindible de este elemento normativo del tipo de lavado de capitales, por mucho que se quiera ignorar en la doctrina y en la jurisprudencia. La mejor demostración de que esto es así es que la prueba de que los bienes no proceden de delito alguno, es decir, de que no hay sentencia condenatoria alguna, debe implicar la absolución del supuesto blanqueador por atipicidad objetiva de su conducta" (Op. cit., pág. 78) por lo cual resulta un verdadero sinsentido que se haya iniciado en nuestro país un proceso por legitimación de capitales provenientes de una actividad previa que no es, per se, ilícita, cuando la causa que supuestamente originó ese evento (la venta de cigarrillos, a personas no indígenas, sin el pago previo de impuestos) no tiene, a esta fecha (y mucho menos a la data de la acusación) sentencia firme en el país de origen, desde que aún se desconoce la pena que podría llegar a imponérsele a Nombre07, hermano del aquí acusado, en Estados Unidos de Norteamérica por tal conducta y sin que sea suficiente, para solventar ese tema (que es un elemento normativo del tipo según se adelantó), el testimonio de algunas personas que mencionan la pena probable que se le puede imponer que, dicho sea de paso, por ese mismo desconocimiento nacional, pudieron no haber sido interrogados y, por ende, omitir sobre todas las particularidades punitivas del sistema anglosajón, como los extremos mínimos de ese delito, lo que se retomará luego. Adicionalmente, es preciso señalar que, de ser diferentes los países en los que se cometió el hecho previo (entiéndase 'delito' o 'actividad delictiva' lo que no es solo cuestión de terminología sino que , como se indicó, tiene importantes consecuencias jurídicas) y el hecho de legitimación juzgado, debe darse la doble identidad o doble incriminación, es decir, que el hecho previo, del que se dice proviene el capital que se busca legitimar, debe ser delito también en aquel país en donde se juzga la referida legitimación y, salvo que haya legislación expresa que lo regule de otro modo, no debe estar prescrito en ninguno de los dos. Al respecto señala la doctrina nacional: "El hecho previo del cual deriva el objeto de interés económico, a su vez objeto material del delito de legitimación de capitales, debe ser al menos típico y antijurídico, es decir, previsto como delito en una ley penal y que no esté amparado a una causa de justificación, sin que sea necesario que sea culpable (accesoriedad limitada), es decir, que no requiere que el hecho sea cometido culpablemente por el autor previo ni que sea punible en general, salvo excepciones. El §261 StGB alemán dice explícitamente que el objeto de interés económico debe provenir de un "rechtwidrige Tat" (hecho antijurídico). La muerte del autor previo, típico y antijurídico, no tiene influencia con relación a (sic) la persecución del delito de legitimación de capitales. El hecho previo debe ser lo suficientemente concretizado y determinado. El hecho previo, que es apto para conectarse con el delito de legitimación de capitales debe ser punible en la jurisdicción costarricense y si se sitúa fuera del territorio nacional y (sic) tiene que se (sic) punible igualmente en la jurisdicción extranjera. Cuando el hecho previo prescribió se plantea la pregunta de si es posible la persecución por el delito de legitimación de capitales. El delito previo debe ser punible en el Derecho penal costarricense y un hecho prescrito en general no lo es. Algunos autores alemanes consideran que si el hecho previo está prescrito es un hecho irrelevante para la persecución por el delito de legitimación de capitales. Sin embargo, la doctrina mayoritaria alemana y la casi totalidad de la doctrina suiza consideran que cuando el hecho previo ya está prescrito no es posible una condenatoria por el delito de legitimación de capitales. La razón de lo anterior es que el delito de legitimación de capitales es un delito conexo con el delito previo y si el Estado renunció a la persecución de éste no es posible perseguir el delito conexo (...) No es necesario que el autor del hecho previo sea conocido o que viva o, cuando radicó en el extranjero, que haya sentencia firme que condene el hecho previo o que éste sea perseguido por las autoridades extranjeras competentes (...) Creo que es necesario que el Tribunal determine la existencia del hecho previo y su carácter típico y antijurídico, sin que baste la simple sospecha de que el objeto proviene de un hecho punible. El establecimiento de la prueba del hecho previo puede hacerse por sentencia firme, si fue conocido por una autoridad competente. Si ésta prueba falta puede probarse el carácter típico y antijurídico del hecho previo, que es un elemento normativo del tipo de legitimación de capitales. Esta prueba debe hacerla el juez que conoce en el país del delito de legitimación de capitales conforme a los criterios de la libertad probatoria y de la libre valoración de la prueba. En todo caso el establecimiento del hecho previo por el juez nacional como un elemento normativo del tipo penal de legitimación de lavado (sic) no implica dictar una sentencia en el suelo nacional sobre el hecho previo ocurrido en el extranjero" (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 91-94; se suplen los destacados). Tesis que, en principio y salvo en lo que se dirá, esta Cámara comparte, con las advertencias de que si bien la legislación alemana puede requerir un injusto penal para el hecho previo, ello no es unánime en todos los ordenamientos pues muchos aluden a 'delito' y habrá de estarse a lo que cada una regule, por un lado y, por el otro, que sí consideramos necesario que, de reputarse el hecho como cometido en el extranjero, se haya seguido o pretenda seguir proceso y, de haberlo habido, se aporte la sentencia condenatoria extranjera (que no es un requisito de procedibilidad sino un elemento normativo del tipo), salvo que, como ya se adelantó, sea imposible determinar el autor o se hayan producido causas personales de exclusión de la punibilidad pues, de lo contrario, se produciría un juzgamiento ilegal del hecho previo, por una autoridad no competente. Por otra parte, ambos delitos, es decir el hecho base con el delito de enlace, deben de tener una relación lógica entre sí, pues, por mucho que un hecho previo sea delictivo en dos ordenamientos diferentes y se cumplan todas las previsiones legales para considerarlo válidamente como hecho precedente (es decir, que tenga el monto mínimo de pena o esté en la lista de los enunciados como tales por el legislador), si no hay un nexo lógico de conexión entre el evento previo y el posterior mal se haría con pretender alguna sanción: "La naturaleza de la unión entre el bien apto para el blanqueo y el hecho previo es otro de los problemas a resolver. Un sector doctrinal admite que la conexión entre ambos ha de ser de tipo causal. Ello parece lógico en la medida en que los bienes susceptibles de ser blanqueados han de tener su origen, su causa, en un hecho delictivo previo, derivarse de él (...) parece entonces necesaria la fijación de límites, esto es, la determinación de los criterios que producen la ruptura de la unión causal. Esta manera de razonar nos conduce al análisis de una serie de criterios, a consecuencia de los cuales se pueda producir una interrupción del nexo causal, determinando que los bienes no puedan ser considerados ya procedentes del hecho previo. Esta necesidad de limitación va unida al hecho de que la cuestión de la procedencia fundamentaría un regresus ad infinitum en principio no admisible. Se podría llegar a considerar contaminada en un plazo corto de tiempo una parte esencial de la economía legal como consecuencia de una interpretación excesivamente amplia y sin limitaciones del criterio de la procedencia o del origen. Esta situación ha sido criticada por la doctrina suiza por ser contraria a la garantía constitucional de la propiedad adquirida de buena fe" (Nombre15, Isidoro. El delito de blanqueo de capitales. Aranzadi, 3ª edición, 2012, pág. 341). Ello obliga, tanto a establecer límites objetivos previos a la tenencia del objeto presuntamente blanqueado , como posteriores, tema para el cual se han usado las teorías de la equivalencia de las condiciones, de la adecuación y de imputación objetiva para, en supuestos de mezcla de bienes lícitos e ilícitos, determinar si aplica la contaminación total, la descontaminación total, la contaminación parcial, etc. En lo que acá interesa, por ahora, es claro que, por ejemplo, si un millonario conduce ebrio en su país y esa conducta es sancionada con prisión, el que traslade millonarias sumas de dinero a otro país, por mucho que pretenda evadir las consecuencias penales (multa) o civiles (responsabilidad) derivadas de aquella conducción, no podría considerarse que sea una legitimación de capitales, pues el dinero no tenía origen en el delito, sino que preexistía y, entonces, la evasión de responsabilidad no puede sancionarse usando el delito que nos ocupa. Por otra parte, en virtud de los principios de inocencia y non bis in ídem, si el hecho previo fue enjuiciado en el extranjero y la persona acusada fue absuelta o la sentencia tuvo por demostrado que el ilícito no se cometió, no es factible que se constituya como base para una posterior legitimación de capitales , ni es posible que los tribunales nacionales lo vuelvan a conocer, con nueva prueba o revalorando en forma distinta la ahí ponderada, porque se afectaría el principio de cosa juzgada material garantizado tanto por nuestra Constitución Política (numeral 42) como por los instrumentos internacionales sobre derechos humanos suscritos por el país (ver los artículos 8.4 de la Convención Americana sobre Derechos Humanos y 14.7 del Pacto Internacional sobre Derechos Civiles y Políticos). Eso, en términos generales, pues hay que hacer un análisis específico del tipo penal aplicable a la especie fáctica sometida a nuestro conocimiento, para determinar si todos esos criterios doctrinales son extrapolables al derecho interno y si, el tipo penal seleccionado contiene otros elementos importantes (principio de legalidad). Para ello, se requiere determinar cuál es la ley penal aplicable a este asunto, dado que ha Nombre09 habido varias que regulan el tema.

§2. Ley aplicable a este caso y elementos objetivos del tipo: (a) En Costa Rica, antes de 1988, no existía ningún delito similar al que se comenta, ni en nombre ni en elementos, sino que la legislación penal, en su mayoría recogida, como debía ser, en el Código Penal —y no desperdigada, como ahora, en múltiples leyes especiales— solo preveía algunos delitos de encubrimiento, como la receptación, la receptación de cosas de procedencia sospechosa, el favorecimiento real y el personal (cfr. artículos 330 a 332 del Código Penal, renumerado por leyes Nº 7732 y 9048 y según el sistema SINALEVI). (b) Es con la ley Nº 9093, del 22 de abril de 1988 (publicada en el Alcance Nº 16 de La Gaceta Nº 83 del 02 de mayo de 1988), Ley sobre Estupefacientes, Sustancias Psicotrópicas, drogas de uso no autorizado y actividades conexas, en que, por primera vez, se regula este tema de forma muy similar a la actual, en el artículo 15 que señalaba "Se impondrá prisión de ocho a quince años a quien realice cualquier acto o contrato, real o simulado, de adquisición, posesión, transferencia o disposición de bienes, tendente a ocultar o a encubrir el origen de recursos económicos obtenidos por medio del tráfico ilícito de drogas o de delitos relacionados con esa actividad independientemente del lugar en donde el acto ilícito se haya cometido. Cuando el hecho se hubiere cometido en el extranjero, su comisión podrá acreditarse por cualquier medio" (el destacado es suplido). Nótese cómo esta primera normativa circunscribió el ámbito de aplicación de la legitimación de capitales a aquellos obtenidos de la actividad relacionada con el tráfico de drogas. ¿Qué debe entenderse por droga? El artículo 1 de esa ley hacía una referencia a sustancias que causaran dependencia. No obstante, aunque hay muchas sustancias que la causan (incluido el alcohol, el tabaco, algunas gaseosas y hasta el café), no era el criterio médico-cultural el que debía usarse para desentrañar el sentido del término, sino que "drogas" es un concepto normativo, de tipo jurídico, que debe llenarse a partir de definiciones legales adoptadas por el país y que, por haberlas, son restrictivas y predominan por sobre criterios culturales (artículo 1 del Código Penal). Es así como la Convención única sobre estupefacientes (suscrita por Costa Rica el 30 de marzo de 1961 e incorporada al ordenamiento nacional mediante ley Nº 4544 del 11 de marzo de 1970) estableció varias listas (I, II, III y IV) de sustancias sujetas a la fiscalización estatal, entre las cuales no se mencionó el tabaco, que es lo que aquí se comerció y de cuya venta se originan las ganancias base de este proceso. Cabe agregar que ya en esa normativa internacional se aludía a los delitos relacionados con drogas y estupefacientes como "delitos graves", sin llegar a definirse este término (ver artículo s 36.1; 36.2.a.iv). Tampoco se expresaba nada en cuanto al tabaco en el Protocolo de Modificación de la Convención Única sobre estupefacientes (firmado por nuestro país el 25 de marzo de 1972 e incorporado al ordenamiento nacional mediante ley Nº 5168 del 26 de diciembre de 1972); en el Convenio sobre sustancias psicotrópicas (suscrito por Costa Rica el 31 de mayo de 1972 e incorporado al ordenamiento nacional mediante ley Nº 4990 del 10 de junio de 1972) ni, finalmente, en la Convención de las Naciones Unidas contra el tráfico ilícito de estupefacientes o sustancias psicotrópicas (suscrita por Costa Rica el 25 de abril de 1989 e incorporada al ordenamiento nacional mediante ley Nº 7198 del 01 de noviembre de 1990). (c) Aquella primera ley contra el tráfico de drogas, fue reformada mediante ley Nº 7233 (Ley sobre estupefacientes, sustancias psicotrópicas, drogas de uso no autorizado y actividades conexas, publicada el 21 de mayo de 1991) que, en su numeral 17, establecía: "Se impondrá prisión de ocho a veinte años a quien interviniera en cualquier tipo de contrato, ya sea real o simulado, de enajenación, de inversión, de pignoración, de cesión, de conversión, de transferencia, de guarda, o de encubrimiento de la naturaleza, origen, ubicación, destino o circulación de las ganancias, cosas, valores, títulos o bienes provenientes de los hechos delictivos tipificados en esta ley o del beneficio económico obtenido de dichos delitos, siempre que hubiera conocido ese origen y tienda con esas acciones a ocultar o encubrir el origen de los recursos o a eludir las consecuencias jurídicas de ellas, independientemente del lugar donde esos actos ilícitos se hubieran cometido. El favorecimiento personal del delito establecido en este artículo, será sancionado con la pena señalada para el autor. Cuando el tráfico de drogas o los delitos relacionados con esa actividad, aun los referidos a las conductas tipificadas en este artículo, se hayan ejecutado en el extranjero, su respectiva demostración podrá acreditarse por cualquier medio de prueba, siempre que se respeten las garantías establecidas en la legislación nacional y en las convenciones internacionales aceptadas por Costa Rica en protección de los derechos del imputado. Los bancos del Sistema Bancario Nacional deberán rendir los informes relacionados con las conductas tipificadas en el presente artículo, los cuales les soliciten el Ministerio Público o los jueces de la República, aun en la fase de instrucción preparatoria. Los jueces podrán también ordenar que les sea entregada cualquier documentación o medio de prueba que los bancos tuvieran en su poder, cuando fuera necesario para una investigación. La resolución que acuerde lo anterior deberá fundamentar, debidamente, la necesidad del informe o del aporte del medio probatorio" (el destacado es suplido). En esta legislación ya no se remitía, en el artículo referido, a un concepto normativo-jurídico no contemplado en la norma, sino que, expresamente, allí mismo se relacionaba la legitimación de bienes con los otros delitos allí tipificados, dentro de los que, cabe indicar, no había ninguno alusivo al comercio de tabaco o diferente al tráfico de estupefacientes. (d) En sentido similar se pronunció la ley Nº 7786, vigente desde su publicación el 15 de mayo de 1998 que, en su numeral 1, circunscribía el ámbito de acción de tal normativa a las actividades relacionadas con las sustancias descritas en aquellos instrumentos internacionales (dentro de las que, ya se dijo, no figuraba el tabaco) pues señalaba: "La presente ley regula la prevención, el uso, la tenencia, el tráfico y la comercialización de los estupefacientes, los psicotrópicos, las sustancias inhalables y demás drogas y fármacos susceptibles de producir dependencia física o psíquica, incluidos en la Convención Única sobre Estupefacientes de las Naciones Unidas, de 30 de mayo de 1961, aprobada por Costa Rica mediante la Ley No. 4544, de 18 de marzo de 1970, enmendada a la vez por el Protocolo de modificación de la Convención Única sobre Estupefacientes, Ley No. 5168, de 8 de enero de 1973; así como en el Convenio de Viena sobre Sustancias Psicotrópicas, de 21 de febrero de 1971, aprobado por Costa Rica mediante la Ley No. 4990, de 10 de junio de 1972; asimismo, en la Convención de las Naciones Unidas Contra el Tráfico Ilícito de Estupefacientes y Sustancias Psicotrópicas, de 19 de diciembre de 1988, aprobada por Costa Rica mediante la Ley No. 7198, de 25 de setiembre de 1990; además, las regulaciones sobre esta materia que se apruebe incluir en las listas que el Ministerio de Salud deberá elaborar, mantener actualizadas y publicar anualmente en La Gaceta. Además, se regulan el control, la inspección y la fiscalización de las actividades relacionadas con las sustancias inhalables, drogas o fármacos y de los productos, materiales y sustancias químicas que intervienen en la elaboración o producción de tales sustancias; todo ello sin perjuicio de lo estipulado sobre esta materia en la Ley General de Salud, No. 5395, de 30 de octubre de 1973. De igual modo se previenen y sancionan las actividades financieras, como forma de evitar la penetración de capitales provenientes de los delitos del tráfico ilícito y otros conexos y de todos los procedimientos que puedan servir como medios para legitimar capitales provenientes del narcotráfico. Es función del Estado y se declara de interés público la adopción de las medidas necesarias para prevenir, controlar, investigar, evitar o reprimir toda actividad ilícita relativa a la materia de esta ley" y que, en su numeral 72, tipificaba: "Será sancionado con pena de prisión de ocho a veinte años quien: a) Convierta, transfiera o transporte bienes de interés económico que procedan, directa o indirectamente, del tráfico ilícito de estupefacientes, sustancias psicotrópicas o delitos conexos, para ocultar o encubrir su origen ilícito o ayudar, mediante tal conversión, transporte o transferencia, a cualquier participante en la comisión de uno de estos delitos a eludir las consecuencias jurídicas de sus actos. b) Oculte o encubra la naturaleza, el origen, la ubicación, el destino, el movimiento o la propiedad verdadera de recursos, bienes o derechos relativos a ellos, con conocimiento de que proceden directa o indirectamente del tráfico ilícito de estupefacientes, sustancias psicotrópicas o delitos conexos. La pena será de diez a veinte años cuando los hechos anteriores sean cometidos por empleados, funcionarios, directores, propietarios u otros representantes autorizados de las instituciones financieras" (el destacado es suplido). Dicha ley estuvo vigente hasta el 10 de enero de 2002. (e) El 11 de enero de 2002 fue publicada, en La Gaceta Nº 8, la ley Nº 8204 denominada "Reforma integral de la Ley sobre estupefacientes, sustancias psicotrópicas, drogas de uso no autorizado, legitimación de capitales y actividades conexas". Este articulado tuvo la particularidad de ampliar el espectro delictual que regulaba, pues su artículo 1, además de hacer referencia a las sustancias mencionadas en aquellas convenciones internacionales aceptadas por el país, menciona, en los párrafos cuarto y quinto "Además se regulan y sancionan las actividades financieras, con el fin de evitar la penetración de capitales provenientes de delitos graves y de todos los procedimientos que puedan servir como medios para legitimar dichos capitales. Para los efectos de esta Ley, por delito grave se entenderá la conducta que constituya un delito punible con una privación de libertad de cuatro años, como mínimo, o una pena más grave" (se suplen las negritas). En tal tesitura, el numeral 69 señalaba: "Será sancionado con pena de prisión de ocho a veinte años: a) Quien adquiera, convierta o transmita bienes de interés económico, sabiendo que estos se originan en un delito grave, o realice cualquier otro acto para ocultar o encubrir el origen ilícito o para ayudar, a la persona que haya participado en las infracciones, a eludir las consecuencias legales de sus actos. b) Quien oculte o encubra la verdadera naturaleza, el origen, la ubicación, el destino, el movimiento o los derechos sobre los bienes o la propiedad de estos, a sabiendas de que proceden, directa o indirectamente, de un delito grave. La pena será de diez a veinte años de prisión cuando los bienes de interés económico se originen en alguno de los delitos relacionados con el tráfico ilícito de estupefacientes, sustancias psicotrópicas, legitimación de capitales, desvío de precursores o sustancias químicas esenciales y delitos conexos" (el destacado no es original). Por supuesto que el activismo legislativo no se quedó ahí, sino que luego se dieron tres cambios normativos adicionales que es importante reseñar: (f) El 29 de octubre de 2004 se publicó, en La Gaceta Nº 212, la Ley contra la corrupción y el enriquecimiento ilícito en la función pública Nº 8422 del 14 de setiembre de 2004 que, en su artículo 47 refiere: "Receptación, legalización o encubrimiento de bienes. Será sancionado con prisión de uno a ocho años, quien oculte, asegure, transforme, invierta, transfiera, custodie, administre, adquiera o dé apariencia de legitimidad a bienes o derechos, a sabiendas de que han sido producto del enriquecimiento ilícito o de actividades delictivas de un funcionario público, cometidas con ocasión del cargo o por los medios y las oportunidades que este le brinda." Es decir, se creó un delito de legitimación de capitales provenientes, específicamente, de delitos funcionales. (g) Asimismo, en el Alcance Nº 29 a La Gaceta Nº 143, el 24 de julio de 2009 se publicó la Ley contra la Delincuencia organizada Nº 8754, en cuyo artículo 1 se indicaba: "Interpretación y aplicación. Entiéndese por delincuencia organizada, un grupo estructurado de dos o más personas que exista durante cierto tiempo y que actúe concertadamente con el propósito de cometer uno o más delitos graves. Lo dispuesto en la presente Ley se aplicará, exclusivamente, a las investigaciones y los procedimientos judiciales de los casos de delitos de delincuencia organizada nacional y transnacional. Para todo lo no regulado por esta Ley se aplicarán el Código Penal, Ley Nº 4573; el Código Procesal Penal, Ley Nº 7594, y otras leyes concordantes. Para todo el sistema penal, delito grave es el que dentro de su rango de penas pueda ser sancionado con prisión de cuatro años o más" (se suplen las negritas). De esa normativa cabe comentar que definió ‘delito grave’ como aquel reprimido con una penalidad de cuatro años o superior, sin importar en cuál rango de la escala punitiva estuviera ese monto (extremo mínimo o máximo), sino bastando que el hecho pudiera ser reprimido con tal sanción. No obstante, el artículo es contradictorio pues, por un lado, señala que esa definición es para todo el sistema penal cuando, inmediatamente antes, había referido que lo dispuesto en esa normativa solo se aplicaría a los casos de delincuencia organizada. Esta ley surgió con motivo de las obligaciones contraídas por el Estado costarricense al suscribir la Convención de las Naciones Unidas contra la Delincuencia Organizada Transnacional, conocida como Convención de Palermo, adoptada el 15 de noviembre de 2000 y aprobada mediante ley Nº 8302, publicada en La Gaceta Nº 123 del 27 de junio de 2003. Este instrumento internacional, en el artículo 2.b) definía el ' delito grave ' de la siguiente manera: "...se entenderá la conducta que constituya un delito punible con una privación de libertad máxima de al menos cuatro años o con una pena más grave" (el subrayado es externo) lo que es un contrasentido porque si es pena máxima no puede afirmarse que sea de "al menos" o que pueda ser una pena superior. En todo caso, ambas leyes son posteriores a la imputación que aquí nos atañe y, como se verá, no resultan más beneficiosas para el encartado, de modo que no pueden aplicarse retroactivamente (artículos 11 y 12 del Código Penal y 34 constitucional). Por último, (h) el artículo 2°, punto 1, aparte a) de la Ley de Fortalecimiento de la Legislación contra el Terrorismo, N° 8719 de 4 de marzo de 2009 (publicada en La Gaceta Nº 52 del 16 de marzo de 2009 y vigente desde entonces), varió el nombre de la ley que nos ocupa para que, en adelante, se denominara "Ley sobre estupefacientes, sustancias psicotrópicas, drogas de uso no autorizado, actividades conexas, legitimación de capitales y financiamiento al terrorismo" reformándose, por dicha ley, el contenido del artículo 1, en donde se suprime la referencia y definición de ' delito grave ' para, en su lugar, establecer ampliamente que, con dicha ley: "Además, se regulan y sancionan las actividades financieras, con el fin de evitar la legitimación de capitales y las acciones que puedan servir para financiar actividades terroristas, tal como se establece en esta Ley." Por su parte, en el artículo 2°, punto 1, aparte b) de la referida Ley N° 8719 de 4 de marzo de 2009, se modificó el contenido del numeral 69 para que se leyera así: "Será sancionado con pena de prisión de ocho (8) a veinte (20) años: a) Quien adquiera, convierta o transmita bienes de interés económico, sabiendo que estos se originan en un delito que, dentro de su rango de penas, puede ser sancionado con pena de prisión de cuatro (4) años o más, o realice cualquier otro acto para ocultar o encubrir el origen ilícito, o para ayudarle a la persona que haya participado en las infracciones, a eludir las consecuencias legales de sus actos. b) Quien oculte o encubra la verdadera naturaleza, el origen, la ubicación, el destino, el movimiento o los derechos sobre los bienes o la propiedad de estos, a sabiendas de que proceden, directa o indirectamente, de un delito que dentro su rango de penas puede ser sancionado con pena de prisión de cuatro (4) años o más. La pena será de diez (10) a veinte (20) años de prisión, cuando los bienes de interés económico se originen en alguno de los delitos relacionados con el tráfico ilícito de estupefacientes, sustancias psicotrópicas, legitimación de capitales, desvío de precursores, sustancias químicas esenciales y delitos conexos, conductas tipificadas como terroristas, de acuerdo con la legislación vigente o cuando se tenga como finalidad el financiamiento de actos de terrorismo y de organizaciones terroristas" (el destacado es suplido). En esta última normativa se reguló, innecesariamente dada la definición de 'delito grave', la legitimación de capitales en cadena (procedente de un delito de esa misma naturaleza anterior) y se necesitó una errata legislativa para corregir algunos defectos internos (ver publicación en La Gaceta N° 63 del 31 de marzo del 2009) , lo que dice mucho de la política criminal y técnica penal que incorpor ó . Es cierto que, además de la ley, en muchos de los instrumentos internacionales citados, ratificados por el Estado costarricense, se establecía la obligación estatal de reprimir la legitimación de capitales o el lavado de activos, pero la asunción de una obligación internacional no genera, ipso facto, la creación de normas penales, ya que éstas requieren de una ley formal, es decir, emanada de la Asamblea Legislativa, siguiendo el procedimiento al efecto fijado por el ordenamiento jurídico y el establecimiento de una pena concreta por conducta, nada de lo cual tienen aquellos convenios, que aluden a la necesidad de impedir ciertas conductas, las definen, pueden recomendar marcos punitivos, etc., sin que llenen aquellos requerimientos derivados del Principio de Legalidad Penal. De la anterior "arqueología jurídica" se pueden extraer, como primeras conclusiones importantes para el asunto que nos ocupa, las siguientes: (i) En Costa Rica no existió el delito de legitimación de capitales sino hasta 02 de mayo 1988 pues, antes de esa fecha, lo que se regulaba, en el Código Penal, eran delitos de encubrimiento, sin que se previeran muchas conductas tendientes a distraer el producto del delito ahora enumeradas en otras disposiciones especiales; (ii) A partir del 02 de mayo de 1988 y hasta el 10 de enero de 2002, la única legitimación de capitales que se penalizó fue la de aquellos surgidos del comercio de drogas, estupefacientes o psicotrópicos, sustancias esas que no contemplan todas aquellas que generen adicción, sino solo las enlistadas internacionalmente y dentro de las que no se previó el tabaco; (iii) A partir del 11 de enero de 2002 se amplió el espectro punitivo para sancionar la legitimación de capitales provenientes de ‘delitos graves’ y se definió jurídicamente este término (elemento normativo-jurídico del tipo penal) como todo aquel delito que tuviera un extremo mínimo de cuatro años de prisión, lo que se mantuvo hasta el 15 de marzo de 2009, salvo para los bienes provenientes de delitos cometidos por funcionarios públicos, aprovechándose de sus cargos, los cuales, desde el 29 de octubre de 2004 y hasta la fecha, pasaron a regularse en una normativa independiente que, dicho sea de paso, pese a las proclamas plasmadas en la Exposición de Motivos del proyecto de ley, más bien bajaron notablemente la pena para este evento; (iv) A partir del 16 de marzo de 2009 la legitimación de capitales puede provenir de cualquier delito sancionado con prisión de cuatro años o más (salvo, ya se dijo, de los delitos funcionales regulados más benignamente en la normativa especial), sin importar si ese es, o no, el extremo mínimo o máximo de la sanción, sino bastando que, en el rango punitivo abstracto, esa sea una de las posibles penas a imponer. Este recuento es de especial importancia en este asunto, habida cuenta del principio contenido en el artículo 11 del Código Penal, derivado del viejo aforismo nullum crimen nulla poena sine previa lege, según el cual "Los hechos punibles se juzgarán de conformidad con las leyes vigentes en la época de su comisión" salvo, claro está, que se promulguen leyes posteriores más favorables para el acusado (artículo 12 del Código Penal) que, dicho sea de una vez, no sucede en este caso pues, como puede verse del recuento efectuado, no solo las leyes posteriores mantuvieron la misma pena o la aumentaron, respecto a las previas —salvado el caso de los delitos funcionales, no aplicable a la especie— sino que ampliaron el espectro normativo de los hechos previos que pueden dar pie a la legitimación de capitales. Asimismo, porque, en virtud del principio de correlación entre acusación y sentencia (artículo 365 del Código Procesal Penal), solo podían tenerse por demostrados los hechos acusados. Fue así como los hechos probados de la sentencia, manteniendo incólume lo atribuido, señalan, en lo que interesa: "Como hechos probados de interés para la resolución del presente asunto, el Tribunal en lista los siguientes: 1) Entre los años 1996 y 2004, Nombre07 -hermano del acusado Nombre01- fue investigado, se logró reunir prueba importante en su contra y se acusó por actividades propias del crimen organizado en Nueva York, Estados Unidos, entre las cuales se encuentra la realización de delitos de homicidio por encargo, agresión, secuestro, incendio, robo, extorsión y evasión de impuestos, con el propósito de fomentar la actividad comercial de su empresa P, negocio de venta de cigarrillos libres de impuestos ubicado en la reserva […] y por consiguiente con las limitaciones de venta que impone tal ubicación. 2) Con la ejecución de los citados actos delictivos, la organización liderada por Nombre01, potenció la actividad comercial de la empresa P, logrando así -de manera ilícita- la obtención de grandes sumas de dinero que posteriormente envió por medio de transferencias bancarias al Banco de Costa Rica con la finalidad de eludir las consecuencias de tales actos ilícitos de contrabando. 3) En el año 2000 la Fiscalía del Distrito Este de Nueva York inició una investigación contra Nombre07 por violaciones a la Ley Sobre Organizaciones Corruptas Criminales teniendo como base la venta ilegal de cigarrillos libres de impuestos fuera de la reserva indígena descrita y que funcionaba en Long Island, Nueva York. 4) Entre el año 2000 y el año 2004, Nombre07 conociendo de las investigaciones seguidas en su contra, transfirió sus ingresos custodiados en el Banco Nombre09 de Mastic, Nueva York, Estados Unidos a la cuenta a su nombre, número […] y a la cuenta número […] a nombre del acusado Nombre01, ambas del Banco de Costa Rica. 5) Sumado al envío de dinero, Nombre07 el 3 de octubre de 2000 constituyó en nuestro país un fondo de Crecimiento en Dólares en la Sociedad Administradora de Fondos de Inversión del Banco de Costa Rica que para el 12 de agosto de 2004, mantenía un fondo acumulado por la suma de US$10.350.248.00. 6) El 17 de julio de 2000, en San José Centro, ante el Notario Público Juan José Picado Herrera, comparecieron Nombre07 y el acusado Nombre01 y mediante escritura ciento treinta y dos del tomo veintinueve del protocolo, Nombre07 confirió Poder Generalísimo sin límite de suma al acusado Nombre01, para todos sus negocios denotando la confianza y cercanía entre ambos. 7) El 2 de agosto de 2004 fue detenido en Nueva York el señor Nombre07 con ocasión de los cargos dichos y fue condenado a la pena de 10 años de prisión por el delito de tenencia de arma prohibida, que actualmente descuenta en Nueva York. 8) Entre los años 2002 y 2004, el acusado Nombre01, recibió de parte de Nombre01 y mantuvo en su cuenta de ahorros del Banco de Costa Rica número […] la suma de US$16,783,980.00 (dieciséis millones setecientos ochenta y tres mil novecientos ochenta dólares estadounidenses). En dicha cuenta en fecha 06 de agosto de 2004 -a sabiendas de la detención que sufría su hermano y del origen ilícito- el acusado Nombre01 recibió para encubrir la suma de $4.400 000.00 (cuatro millones cuatrocientos mil dólares, moneda USA) transferencia realizada por TMG Nombre16 PARTNERS, empresa ligada a Nombre07. 9) El 12 de agosto de 2004 el acusado Nombre01 solicitó a la Sociedad Administradora de Fondos de Inversión (SAFI) del BCR, la redención por la suma de US$10.350.248.00 (diez millones trescientos cincuenta mil doscientos cuarenta y ocho dólares estadounidenses) del Fondo de Crecimiento de dólares a nombre de Nombre07 para lo cual aportó la solicitud expresa en tal sentido firmada por Nombre01 en fecha 11 de agosto de 2004. Con tal dinero bajo su poder el acusado Nombre01 lo depositó en su cuenta de ahorros […] para posteriormente constituir un fondo de Crecimiento en dólares a su nombre por la suma global dicha. 10) Con tales acciones el imputado Nombre01 logró acumular la suma total de $14.750.248,00 (catorce millones setecientos cincuenta mil doscientos cuarenta y ocho dólares moneda USA) la cual encubrió para evitar que las autoridades estadounidenses persiguieran e incautaran los dineros provenientes de la actividad ilícita de Nombre07. 11) Una vez que el acusado Nombre01 logró tener a su nombre la totalidad de los fondos transferidos por Nombre07 y siguiendo instrucciones de éste a partir del año 2007 procedió a disponer de los dineros de origen ilícito, mediante la adquisición de bienes muebles e inmuebles ubicados en la provincia de […]. 12) Los bienes que adquirió el acusado Nombre01 bajo esta modalidad delictiva son (...) 13) Los dineros legitimados por el acusado Nombre01 y la adquisición de los bienes muebles e inmuebles adquiridos por él, lesionaron el orden socio económico del Estado Costarricense" (cfr. folios 846 a 848; el destacado es suplido). Nótese, entonces, cómo de los hechos probados surgen tres temas de interés: 1)- el encartado es acusado de recibir dinero de su hermano, dinero ese cuyo origen, según se acusó, provenía de actividades referentes al crimen organizado en Nueva York, Estados Unidos, entre las cuales se encontraban la realización de delitos de homicidio por encargo, agresión, secuestro, incendio, robo, extorsión, posesión ilícita de arma y evasión de impuestos. No obstante, de todos esos cargos, hay que decirlo desde aquí, el hermano del encartado fue condenado, en firme , solo por la posesión ilícita del arma (según veredicto del jurado del 01 de mayo de 2008: ver documento 897, pág. 2 del legajo de asistencia 11-91-1035-PE, folio 348 ) y aunque en esa misma oportunidad fue condenado por el jurado por la evasión de impuestos de los cigarrillos, ante una apelación suya, el juez de Distrito Denis R. Hurley desestimó los cargos el 16 de abril de 2010 y lo sobreseyó, alegando la razonabilidad de que Nombre01 desconociera la aplicabilidad de la ley (ver documentos de folios 352 a 371, legajo de traducción de asistencia penal 11-91-1035-PE, tomo II ) y luego, una apelación estatal hizo que, a partir del 16 de julio de 2012 (instantes previos al desarrollo de este debate) , la Corte de Apelación para el Segundo Circuito de los Estados Unidos, integrada por los jueces Guido Calabresi, Denis Chin y Susan L. Carney restableciera el pronunciamiento del jurado 2010 (ver documentos de folios 672 a 726/Tomo II) pendiendo, aún a esta fecha, la fijación de la pena por ese hecho, lo que denota, prima facie, lo discutible del punto en cuestión. La doctrina citada hace una diferenciación entre “dinero ilegal” también conocido como “dinero sucio , ” que es el que se origina en actividades delictivas per se y cuya legitimación ulterior se denomina ‘reciclaje’ o ‘lavado’ , con las nociones de “fondos contaminados” o “dinero negro” que procede de actividades productoras lícitas, con la consiguiente evasión de los efectos tributarios y a cuyo proceso de legitimación se alude con el nombre de ‘blanqueado de dinero’. Entonces, para ubicarnos de una vez, a partir de los hechos probados y de la sentencia absolutoria firme de Nombre01 por los delitos de extorsión, homicidio, incendio, etc., cuya base fáctica no puede usarse en otro asunto sin contravenir el principio de cosa juzgada, aquí estamos frente a operaciones de ‘blanqueado’ de ‘dinero negro’ o ‘contaminado’ y no frente al primer fenómeno . Aunque se menciona el tema de organizaciones criminales, los hechos no pueden juzgarse al amparo de la normativa nacional que regula la delincuencia organizada (tanto en la ley como a través de la ratificación convencional) pues ésta no se había aprobado para entonces y , como si eso fuera poco, el hermano del encartado fue absuelto, en firme, por los restantes delitos alusivos a ese tema (ver documento 904 de Nombre17 legajo de prueba 3 aportado por la defensa, traducción oficial, en folio 113). Es importante recalcar esto porque, inclusive, la fiscal, en la audiencia oral celebrada en este despacho, hizo referencia a los otros delitos, lo que constituye, a lo menos, una lamentable omisión de su parte, máxime si se tiene en cuenta que fue la misma fiscal que asistió al debate e inmedió la prueba, por lo que el deber de objetividad que le asiste (artículo 63 del Código Procesal Penal) obligaría, a lo menos, a dejarlo así mencionado, lo que, no solo no hizo, sino pretendió desconocer con la sola referencia a la imputación fiscal norteamericana; 2)- el encartado fue acusado por recibir dinero de su parte, proveniente de esas actividades e invertirlo luego ; 3)- se tuvo por demostrado que Nombre01, el hermano del encartado, transfirió al país, entre 2002 y 2004, poco más de dieciséis millones de dólares, dejando algunas sumas a su nombre y otras en las cuentas del aquí endilgado a quien, el 17 de julio de 2000, le dio poder generalísimo sin límite de suma para la administración y disposición de sus bienes. Con parte de ese dinero, el 03 de octubre de 2000, se constituyó un fondo de crecimiento en dólares en el Banco de Costa Rica y, aproximadamente cuatro millones de dólares de aquella suma se transfirieron, el 06 de agosto de 2004, fecha en que fue detenido el hermano del encartado en Estados Unidos. El 12 de agosto de 2004 el imputado hizo la redención de aquel fondo, trasladando los dineros a cuentas a su nombre, no siendo sino hasta después de 2007 en que el Nombre01 empezó a invertir parte de ese dinero en la adquisición de diversos tipos de bienes muebles o inmuebles, que inscribió tanto a su nombre como de sociedades en donde él figuraba como principal accionista . Relacionando los hechos acusados y acreditados con el recuento normativo efectuado atrás, debe decirse, entonces, que cualquier evento de esa acusación, referente al dinero adquirido, administrado y dispuesto proveniente de la venta ilegal de tabaco, que se le atribuya al encartado anterior al 10 de enero de 2002 es atípico. En tal condición está el lapso que inicia en el año 2000 y hasta esa data, pues nunca se le acusó que ese dinero proviniera de delitos relacionados con drogas o estupefacientes, únicos delitos que, para entonces, podían configurar la base del lavado, sino que la atribución es la actividad del tabaco y su venta libre de impuestos que es lo que, en definitiva, debe ser valorado en este caso. Como ya se dijo, por los restantes delitos, el hermano del acusado fue absuelto en firme y el ilícito de tenencia de una sola arma de fuego sin permiso, no es un hecho apto para generar la legitimación de capitales, aunque tenga un amplio rango punitivo en el país de origen que permitiera considerarlo ‘delito grave’, pues carecería de relación causal con la obtención del dinero que se pretende legitimar. Ello, se insiste, entratándose de una sola arma, pues podría ser distinto de aludirse a todo un arsenal, que supone su comercialización ulterior, lo que escapa a la hipótesis fáctica de este asunto. Asimismo, dado que los últimos hechos acreditados suceden en el 2007 (en que dispone de los bienes), no es posible aplicarle al encartado la normativa posterior, es decir las reformas introducidas mediante la Ley N° 8719 de 4 de marzo de 2009, que modificó el contenido del numeral 69 de la Ley Nº 8204, y que señaló que la legitimación de capitales podía provenir de cualquier delito sancionado con prisión de cuatro años o más, sin importar si ese era, o no, el extremo mínimo de la sanción, sino bastando que estuviera dentro del rango punitivo, pues esa es una norma posterior, más perjudicial. En otras palabras, la ley aplicable a los hechos sucedidos luego del 10 de enero de 2002 —todos los restantes acusados— es la que expresamente señala que ‘delito grave’ es aquel que tiene una pena mínima de cuatro años. Por eso, no es de recibo la afirmación contenida en la sentencia de instancia según la cual "...En virtud de la vigencia de las normas en el tiempo que prevé el Código Penal, la norma aplicable a los hechos bajo examen es la vigente desde el año dos mil dos hasta el año dos mil cuatro, es decir la que vincula los bienes que se legitiman con un delito grave, sin que a ese concepto de gravedad se endose una pena" (cfr. folio 935; el destacado se suple) pues, si bien se seleccionó correctamente la ley aplicable, no se analizó ésta en su integridad, es decir, en relación con el artículo 1 de esa misma normativa, en donde sí se vinculaba la gravedad delictual a un monto de pena que, inclusive, el legislador estableció expresamente que debía ser el extremo mínimo de cada tipo penal. Extraídas las dos conclusiones anteriores, hay que agregar que todo el razonamiento del Tribunal, considerando como delito previo la evasión de impuestos en los cigarrillos (y no la posesión de arma que, se insiste, carece de vínculo causal con el hecho que nos ocupa; ni los otros hechos por los que fue enjuiciado y absuelto el hermano del encartado) se basó en que: "...tratándose del delito de contrabando que señala, cuya pena máxima es de cinco años, sí cumple con el requisito de tener una pena máxima superior a cuatro años. En criterio del Tribunal la norma que corresponde en nuestro ordenamiento para cumplir con el Principio de la Doble imputación, es el artículo 92 de la ley No. 4755 de 3 de mayo de 1971, Código de Normas y Procedimientos Tributarios que sanciona con una que corresponde al delito que se le atribuyó en los cargos atribuidos a Nombre07 desde el año (sic) es decir que el dinero proveniente del contrabando de cigarrillos atribuido a Nombre07, proviene de un delito grave que también está contemplado en el ordenamiento costarricense, por lo que el argumento del señor defensor en el sentido de que no se cumple con el Principio Convencional de la doble imputación no es admisible; y al contrario el Tribunal considera como un hecho demostrado ciertamente que el dinero remitido al Banco de Costa Rica por Nombre07, se originó en un delito grave contemplado por el ordenamiento penal costarricense" (cfr. folio 936, el destacado es suplido). Nótese cómo las mismas juzgadoras y el juez de instancia señalan que la conducta de Nombre01, en Estados Unidos, tiene su equivalente, en la legislación costarricense, en ese delito, el cual tiene una sanción máxima, no mínima, superior a los cinco años, lo que implicaría que no se dé el requisito mencionado pues, como se dirá, la sanción mínima abstracta es inferior a los cuatro años, nada de lo cual mencionó el a quo . Tampoco el Tribunal de instancia hizo alg ún análisis de si el hecho de Nombre01 podía considerarse ‘grave’ en la legislación norteamericana, es decir, si allá estaba sancionado con pena mínima abstracta de Nombre01 uatro años, lo que era importante a los efectos de la referida doble incriminación. Recuérdese que, por la premura investigativa nacional, el proceso derivado avanzó más rápidamente que la causa base y , a la fecha de esta decisión , no hay constancia oficial de que, en Estados Unidos de Norteamérica, se le haya impuesto a Nombre01 una pena por ese hecho del que, además, se desconoce si es un ' delito grave ' en los términos definidos por nuestra normativa. Para solventar ese tema, no basta que se diga que Nombre01, el hermano del encartado, mientras se desarrollaba paralelamente el proceso nacional, específicamente el 16 de julio de 2012, fue encontrado culpable de la tenencia ilegal —es decir, sin pago previo de impuestos— de cigarrillos, en Estados Unidos, ocasión en que la Corte de Apelaciones del Segundo Circuito, acogió un recurso gubernamental contra el pronunciamiento del juez Hurley de la Corte Distrital para el Distrito Este que, a su vez, en enero de 2010, había desestimado la condena de jurado que aquel había recibido, en mayo de 2008. Y no basta , porque los testigos refirieron que aún resta por imponérsele una pena. Si bien la sentencia mencionó que: "La pena a imponer por este delito (…) según indica Nombre18 podría ser de hasta 20 años de prisión" (ver folio 897) nada se dijo sobre los límites mínimos que, en la legislación de ese país, podría tener esa sanción, que aún no ha sido impuesta, lo que es altamente relevante, como se verá. Tampoco se aportó prueba alguna sobre los alcances de la legislación extranjera lo cual, conforme lo determina el artículo 30 del Código Civil (aplicable a esta materia por así disponerlo el numeral 14 de esa misma normativa) que señala : "El que funde su derecho en leyes extranjeras deberá probar la existencia de éstas" debió hacerse, por tratarse de normativa extranjera que le compete probar a la parte que la usa que, en este caso, es e Nombre17 Estado costarricense a través del ente fiscal, dado que el encartado está protegido por su estado de inocencia constitucional ( artículo 39 de la Carta Magna). Aún más, si se analiza la declaración que sirvió de base a esa información del Tribunal, es decir, la rendida por Nombre19 (ver folios 850 a 855), abogada asistente en Estados Unidos, se tiene que ella refirió, en concreto, sobre este tema, lo siguiente: "Soy asistente de abogado en los Estados Unidos, soy responsable de representar al Gobierno en casos civiles y penales (...) mi puesto es similar a un fiscal pero a nivel federal, investigamos delitos federales, el fiscal está a nivel estatal (...) al señor Nombre01 se le acusa por formar parte de esta organización, además cometió crímenes violentos para ayudar en esta negociación (...) el juicio duro (sic) hasta mayo de 2008, el jurado lo encontró culpable de la conspiración que estaba basado en el contrabando de cigarrillos, también de tener armas en posesión de él, los otros cargos el jurado lo encontró no culpable, después de que el jurado dio el veredicto, en el sistema estadunidense (sic) el imputado puede solicitar que se le elimine el cargo (...) el juez había desechado el asunto relacionado a la conspiraciónòn (sic), cuando se le dio la sentencia lo único que quedaba era el cargo por la portación (...) el Juez Hurley elimino (sic) el veredicto diciendo que no era culpable de la condena de contrabando, los Estado (sic) Unidos llevaron esta decisión a una corte más alta, nuestros procedimientos se llevan a cabo en la Corte de Distrito, la apelación fue en la Corte de Apelaciones, en julio de este año la Corte de Apelación anulo (sic) el veredicto del Juez Hurley y la decisión se obtiene en el mes de julio de 2012, se reinstauraron los cargos que se le hacen en el contrabando, todavía no se le ha dado una sentencia nueva, pero él va recibir esta sentencia en los hechos de contrabando, esta decisión del juez establece a Nombre01 como culpable del delito de contrabando, esta decisión confirmo (sic) la decisión del jurado, no hay un juicio nuevo simplemente se reinstala lo que el jurado estableció en mayo del 2008, todavía no se ha hecho la sentencia, lo que él enfrenta es una pena de hasta veinte años de prisión (...) De hecho esta causa no es en la ciudad de Nueva York, en la ley federal hay una ley que se refiere al contrabando es la Ley CCTA, bajo la ley federal es un delito poseer cigarrillos que no pagan impuestos, en la época de la causa era tener más de 360 mil cigarrillos, el no pagar impuestos de los cigarrillos los hace ilegal poseerlos, la posesión de cigarrillos que no hayan pagado el impuesto es el contrabando, el acto de contrabando es de hasta 5 años, pero en el caso del señor Nombre01 a él se le acuso (sic) de la extorsión y parte de la extorsión era el contrabando, en el delito pendiente la pena será por la extorsión, se llaman actos que se refieren al crimen (...) los delitos donde el jurado declaro (sic) inocente a Nombre01 estas causas no se pueden apelar más, pero creo que el Juez Hurley consideraría el robo y el asesinato como parte de la conspiración, hay leyes en Estado Unidos y Nueva York por evasión de impuestos" (se suplen los destacados). Es decir, la testigo parte de especulaciones propias y no refirió, pues nadie la inquirió sobre el particular, sobre los límites punitivos del delito de contrabando, mencionando, a partir de su posición dentro del proceso penal de ese país, dos montos punitivos muy distintos: de cinco y hasta de veinte años, pero sin indicar el mínimo abstracto previsto en la norma, que es lo que requiere la nuestra y aludiendo a hechos, por los que el encartado fue absuelto, como si hubiera sido condenado, aspectos que no solo dicen de su credibilidad sino de la imposibilidad de uso de su testimonio para acreditar lo que se echa de menos en nuestro medio, desde que se violentaría el principio de cosa juzgada. En efecto, si es válido en Estados Unidos de Norteamérica usar las circunstancias de absolución de una persona como hechos relevantes para imponerle una pena por otro delito, no puede decirse lo mismo en Costa Rica, en donde el numeral 8.4 de la Convención Americana de Derechos Humanos (no suscrita por aquel país) señala: "El inculpado absuelto por una sentencia firme no podrá ser sometido a nuevo juicio por los mismos hechos" de modo que el monto de pena abstracto a imponer no podría considerar agravantes derivadas de conductas por las que él fue absuelto. En todo caso, la referencia que hicieron las juezas y el juez, ya se dijo, fue solo a si el hecho equivalente, en Costa Rica, era delito grave y asumieron que sí, aludiendo a una pena máxima de cinco años. Empero, ese dato, arriba subrayado en lo transcrito, parece obedecer a un error del órgano de instancia, ya que el artículo 92 del Código de Normas y Procedimientos Tributarios (modificado por el numeral 2º de la ley Nº 7900 de 3 de agosto de 1999 y antes de la reforma por el artículo 1° de la ley N° 9069 del 10 de setiembre del 2012, "Ley de Fortalecimiento de la Gestión Tributaria", posterior y más perjudicial), refería: Artículo 92.- Inducción a error a la Administración Tributaria. Cuando la cuantía del monto defraudado exceda de doscientos salarios base, será sancionado con prisión de cinco a diez años quien induzca a error a la Administración Tributaria, mediante simulación de datos, deformación u ocultamiento de información verdadera o cualquier otra forma de engaño idónea para inducirla a error, con el propósito de obtener, para sí o para un tercero, un beneficio patrimonial, una exención o una devolución en perjuicio de la Hacienda Pública. Para los efectos de lo dispuesto en el párrafo anterior debe entenderse que: a) El monto defraudado no incluirá los intereses, las multas ni los recargos de carácter sancionatorio. b) Para determinar el monto mencionado, si se trata de tributos cuyo período es anual, se considerará la cuota defraudada en ese período; para los impuestos cuyos períodos sean inferiores a doce meses, se adicionarán los montos defraudados durante el lapso comprendido entre el 1º de enero y el 31 de diciembre del mismo año. En los demás tributos, la cuantía se entenderá referida a cada uno de los conceptos por los que un hecho generador es susceptible de determinación. Se considerará excusa legal absolutoria el hecho de que el sujeto repare su incumplimiento, sin que medie requerimiento ni actuación alguna de la Administración Tributaria para obtener la reparación. Para los efectos del párrafo anterior, se entenderá como actuación de la Administración toda acción realizada con la notificación al sujeto pasivo, conducente a verificar el cumplimiento de las obligaciones tributarias referidas al impuesto y período de que se trate" (el destacado es suplido). Es decir, esa normativa sí contemplaba, como pena mínima, la de cinco años de prisión, lo que denota un error en la fundamentación de lo transcrito en la sentencia de instancia (pues se menciona ese monto como pena máxima) pero, también, una omisión desde que, como bien lo señala el impugnante, no solo no existe motivación sino, peor aún, prueba alguna, ni pericial ni de otra índole, que refiera cuál era el monto de lo dejado de pagar al Gobierno de Estados Unidos por impuestos, que es lo único ilícito de ese dinero (y no la totalidad de los ingresos surgid os de las ventas de los cigarrillos), sin que pueda presumirse (en contra del principio de inocencia) que lo sea todo el dinero transferido, desde que la venta de tabaco o cigarrillos, como toda actividad comercial, alguna ganancia genera, pagados los impuestos, a más de que, según se estableció con la misma declaración de Nombre19(ver folio 854) y de Nombre20 (folio 872) el dinero transferido por Nombre01 también provenía de otras diversas actividades que él tenía en tal país. Llegados a este punto, es preciso señalar lo polémico que resulta, en el derecho comparado, el considerar la evasión fiscal como delito previo. Al efecto se ha referido: “La voracidad fiscal de los Estados desarrollados, especialmente de los europeos, ha impuesto un deslizamiento paulatino y perverso del delito de blanqueo de capitales desde su sentido originario estricto, es decir, desde la pretensión de perseguir penalmente la legitimación de bienes procedente de determinadas actividades delictivas –el narcotráfico, la corrupción y el crimen organizado, sobre todo- hasta la de servir como instrumento de control y recaudación fiscal (…) se ha llegado al punto de admitir que basta para cometer el delito de blanqueo de capitales con que los bienes procedan de cualquier delito –que no tiene que ser siquiera grave- (…) y, además, que no es necesario que los bienes procedan de una actividad delictiva previa que se comporte como causa o fuente de su obtención, sino que basta que éstos no hayan sido objeto de la tributación correspondiente para poder ya someterlos al régimen penal del blanqueo de capitales. Esta forma de entender el delito (…) es político criminalmente incoherente y técnicamente inconsistente, pues (…) no solo ignora la razón político criminal de ser de estos delitos y convierte en delincuentes blanqueadores a una gran parte de la población, confirmando así, por cierto, la ineficacia preventiva de estos tipos penales, sino que, además, se basa en una interpretación contra legem de la exigencias típica de que los delitos objeto de blanqueo tengan un origen delictivo (…) La base técnica y político criminal de los tipos de blanqueo de capitales es que el elemento típico ‘bienes que tienen su origen en un delito’ (…) significa que la causa de la obtención de los bienes es un delito previo, es decir, anterior a su obtención y que, por tanto, el blanqueo no tiene por objeto los bienes que, una vez obtenidos lícitamente, se sustraen simplemente al cumplimiento de sus obligaciones fiscales, porque estos bienes no ‘tienen su origen en un delito’ y, además, suelen ser patrimonialmente indiferenciables de los que han sido objeto de tributación. Lo técnica y político criminalmente decisivo para la tipicidad del blanqueo es, pues, que el origen de los bienes, esto es, la causa de su obtención, sean delitos base –el narcotráfico, el cohecho, el secuestro…- distintos del fraude fiscal, porque el fraude fiscal en sí mismo no genera los bienes, no es el origen de los bienes, sino que, simplemente, oculta a la Hacienda Pública los bienes obtenidos lícitamente” (Cfr. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 72 y 74. También en la siguiente dirección electrónica de la Universidad Externado de Colombia : www.revistas.uexternado.edu.co/index.php/derpen/article/.../98). Discusión que es recogida por la doctrina nacional en los siguientes términos : "...las legislaciones de algunos países como España [En España la ley del 2010 (...) admite expresamente que la cuota tributaria defraudada, puede constituir objeto material del blanqueo de capitales] como Alemania declaran expresamente que las ganancias generadas por un delito fiscal pueden ser un hecho precedente para el delito de blanqueo de capitales. En Francia, Bélgica e Italia ha sido la jurisprudencia la que ha dicho que el delito fiscal puede ser hecho precedente en el blanqueo. En Suiza ha sido la doctrina (...) Parte de la doctrina española [Nombre11 (...) Cobo del Rosal/Zabala López Gómez (...) Quintero Olivares] cree que el delito de defraudación fiscal no puede ser un hecho previo para el delito de legitimación de capitales, porque la cuota que debe pagarse por concepto de impuestos no se origina ni tiene su origen en un delito, sino que los impuestos fueron adquiridos lícitamente por el autor (...) Agrega Nombre21 que el delito de defraudación fiscal es un delito de omisión, siendo que los delitos de omisión no pueden ser hechos previos (...) porque no se puede establecer una relación causal entre la acción omitida (el pago de los tributos) y los bienes ya incorporados al patrimonio del sujeto en virtud de un hecho previo anterior no constitutivo de delito. De acuerdo a este autor no podría recurrirse a la causalidad hipotética en el sentido de considerar ilícita por la circunstancia de que si hubiera realizado la acción debida (el pago de los tributos), la parte del patrimonio afecta al cumplimiento de la obligación no formaría parte del patrimonio del sujeto activo. De acuerdo a esta tesis, la ganacia (sic) de una actividad lícita no se convierte en ilícita por la sola circunstancia de que no se tribute sobre ella o porque ella se oculte para no pagar tributos (...) El artículo 174 del Código penal ruso (en vigencia desde 1996), partiendo de la tesis de que el obligado a pagar impuestos se ha ganado sus recursos lícitamente, considera que no hay lavado de activos en el caso de que el hecho previo sea una defraudación fiscal, porque no hay recursos que provengan de un delito" (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 83-85; se suplen los destacados). El último autor aborda el tema, para la legislación nacional, considerando que debe distinguirse entre defraudación fiscal y retención de tributos cobrados y no entregados al Fisco , pero concluye indicando: "El monto de los impuestos defraudados es una cantidad de dinero que es una proporción que se aplica sobre la base imponible (gravamen). Es cierto que el agente, producto de su defraudación, no recibe nada, sino que deja de pagar la cuota tributaria que le corresponde. Pero esta cuota tributaria no pagada en virtud de la defraudación fiscal, que se mide en dinero, es objeto apto para el delito de lavado" (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, pág. 87). De esas posturas se evidencia que la solución no es, entonces, pacífica y fue absolutamente soslayada en el pronunciamiento de instancia , a pesar de que la fórmula típica nacional es muy similar a las comentadas por los autores extranjeros al prever que los bienes “…se originan en un delito grave” sin que, entonces, la obtención de los bienes haya sido el delito fiscal, sino la actividad de venta de tabaco, aunque las ganancias por ello se hayan visto magnificadas por el no pago de aquellos tributos, lo que es cosa distinta. Pese a lo anterior, aunque se aceptara que un delito fiscal puede ser ' hecho previo ' para la legitimación de capitales , siempre se requeriría no solo que el delito fiscal tenga, en Costa Rica, una pena mínima abstracta de Nombre01 uatro años (según la legislación que estamos aplicando, que no es la misma comentada por el profesor costarricense) sino que, en tal tesitura, se especifique si la cuota fiscal, dejada de pagar en cada período fiscal , supera el monto de salarios base que posibilitan esa pena. A Nombre17 modo de ver de este Tribunal , sin descartar del todo las sesudas objeciones dogmáticas arriba referidas, lo que plantean los delitos tributarios previos como base para la legitimación de capitales , son otras cuestiones: por un lado , de tipo probatori o , para distinguir el flujo neto de capital transmitido, en su mayor parte proveniente de un a actividad lícita, de la cuota —ilícita— que se debía tributar, distinción que no se hizo en este caso y, por el otro, referente a la forma en que se reconstruye, a posteriori, el dolo del sujeto activo, dada la actividad lícita general que origina el capital sobre el que no se pagaron los tributos: “El problema (…) no es tanto el origen o la procedencia delictiva de los bienes, cuanto la dificultad de concretarlos e individualizarlos en el patrimonio del contribuyente (algo que en principio ocurrirá en todos los casos en los que lo obtenido sea dinero, bien fungible por excelencia). El contribuyente responde de la deuda tributaria con todos los bienes de su patrimonio (igual que en las insolvencias punibles), pero es prácticamente imposible determinar qué bienes son los que resultan contaminados. Lo que no es admisible es la teoría del contagio total, según la cual todo el patrimonio del contribuyente queda contaminado. Ello sería excesivo y desproporcionado. Cualquiera que realizara negocios con él estaría cometiendo un delito de blanqueo de capitales, si concurrieran todos sus elementos, especialmente los subjetivos (conocimiento del origen, o imprudencia en el momento de la recepción). En toda relación de causalidad es necesario que la causa preceda al resultado, en este caso se requiere que el delito fiscal preceda en el tiempo a la cuota tributaria que constituye el objeto material del delito de blanqueo de capitales. No hay problema cuando se puede determinar de forma segura el momento de realización del delito que genera los bienes blanqueados; por ejemplo, si se trata de un tráfico de drogas en el que se puede determinar el momento de la venta y la cuantía obtenida. Ahora bien, el delito fiscal presenta unas peculiaridades que pueden generar dificultades prácticas de difícil solución. El momento de contaminación de los bienes integrantes de la cuota tributaria defraudada se producirá cuando vencen los plazos administrativos establecidos para declararlos a la Administración tributaria. Hasta que no finalizan los mismos, existe un período de tiempo durante el que no es posible determinar si existe o no. Así lo indica Nombre22, “Lavado de dinero y delito fiscal. Posibilidad de que delito fiscal sea el delito precedente al de blanqueo”, La Ley: Revista jurídica española de doctrina, jurisprudencia y bibliografía, Nº 5, 2005, págs. 1402-1410. En el mismo sentido, Nombre23, Blanqueo de capitales, cit., pg. 163 (…) Nombre24,“Geldwäsche”, cit., nm. 28. Así Nombre25, “Delito fiscal y blanqueo: dos sanciones para una actuación”, cit., pg. 5.” (Cfr. Nombre15. El delito fiscal como actividad delictiva previa del blanqueo de capitales. En: Revista Electrónica de Ciencia Penal y Criminológica. 13-01 , 2011. También e Nombre09 la siguiente página de internet : http://criminet.ugr.es/recpc/13/recpc13-01.pdf). En este asunto, ya se dijo que no hubo ninguna prueba que estableciera los años específicos en los que produjo cada suma de dinero y en que se omitió el pago del tributo, lo que era necesario porque nuestro tipo penal hace referencia a salarios base, que son cambiantes anualmente y, entonces, era necesario determinar el año de cada flujo dinerario y lo que de éste era exclusivo de la evasión (es decir, excluir las ganancias lícitas), para hacer la adecuación típica paralela, sin que eso ni se efectuara en la sentencia de instancia ni, peor, aún, se acreditara. Aún más, el Tribunal tomó todo el dinero ingresado al país, sin hacer división alguna por período, lo que h izo que contabili zara montos ingresados cuando esa conducta no era delito, es decir, antes de 2002 pues señaló: "...el dinero enviado por Nombre07 desde el año dos mil a sus cuentas en el Banco de Costa Rica y en agosto de 2004 a la cuenta en ese mismo banco del acusado Nombre01 era producto de la venta de cigarrillos sin impuestos, que es un delito federal en ese país" (cfr. folio 936). En otro giro, primero debió separarse lo ingresado antes del 10 de enero de 2002, pues todo ese dinero no podía considerarse producto de una legitimación de capitales, aunque se originara en un delito, habida cuenta que, hasta esa fecha en nuestro país solo podían ser típicos de esa conducta, los bienes, en sentido amplio, provenientes de narcotráfico y ya se ha visto que no era este el caso. Luego, de todo el dinero ingresado a partir del año 2002, debía establecerse cuánto ingresó en cada período anual, pues ello era necesario a los efectos de determinar los cambios anuales de cuantía para hacer la adecuación típica a ese delito, e Nombre09 caso de superar los salarios base referidos y, finalmente, acreditarse, indubitablemente, la proporción que de esos dineros era producto de la evasión de impuestos, y cu á Nombre17 no, para ver si aquellos superaban la exigencia típica costarricense de que ascendieran a cierta cuantía dado que era solo esa proporción la que permitía hacer el encuadre típico. Nada de eso se elaboró en sentencia y, mucho menos, hay prueba del monto dejado de pagar por impuestos: “…el delito fiscal difiere bastante de otros delitos previos del blanqueo (por ejemplo, el tráfico de drogas). Las peculiaridades del mismo van a exigir una actividad probatoria muy intensa, para que pueda afirmarse la existencia de una cuota tributaria no pagada que supera la cuantía fijada en el Código penal. A diferencia de lo que considera la jurisprudencia respecto de los delitos de tráfico de drogas, en el delito fiscal sí va a ser necesario acreditar el acto delictivo concreto que genera los bienes blanqueados. Y es que la comisión de un delito fiscal requiere probar de manera específica varios elementos típicos de carácter temporal y personal. Recordemos que se ha de constatar la existencia de la cuota tributaria defraudada dentro de unos plazos temporales estrictamente fijados (…) Acreditar estos períodos temporales es esencial para la existencia del delito fiscal. Y hacerlo con claridad porque como sabemos la cuantía deberá determinarse en atención a cada tributo y período impositivo, sin que puedan sumarse las diferentes cuantías, inferiores al mínimo (…) para convertir en delito lo que no son sino infracciones administrativas…” (Cfr. Nombre15, Isidoro. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 426-427). Pero, como si lo anterior fuera poco, resulta que, como bien lo señalan los recurrentes, no se contempló, que no era aquella ley la que permitía hacer la doble incriminación. El Código de Normas y Procedimientos Tributarios, en su artículo 1º refiere: "Campo de aplicación. Las disposiciones de este Código son aplicables a todos los tributos y las relaciones jurídicas derivadas de ellos, excepto lo regulado por la legislación especial" (se suplen las negritas). Los hechos previos que se le reprochan a Nombre01, en Estados Unidos, aluden al contrabando, es decir, el haber entrado en posesión ilícita de cigarrillos, sin pagar los tributos previos. Refiere al respecto la sentencia de instancia: " En el año 2000 la Fiscalía del Distrito Este de Nueva York, inició una investigación formal contra Nombre07, por violaciones a la Ley Sobre Organizaciones Corruptas Criminales (Ley RICO), teniendo como base una venta ilegal de cigarrillos, los cuales eran vendidos sin el previo pago de los impuestos (...) se encuentra procesando a Nombre01 por violaciones a la Ley Sobre Organizaciones Corruptas Criminales e Influidas por Organizaciones Criminales (Ley Rico), surgidas de su control sobre un negocio de distribución de cigarrillos libre de impuestos, y que funciona en una reserva indígena ubicad a en la Reservación Poospatuck, en la Ciudad de Mastic, Estado de Nueva York. En ese lugar, se ubica la empresa P, que vende grandes volúmenes de cigarrillos libres de impuestos, esto a nivel nacional y a través de la página de internet www.smokersden.com. Se indica también, como la reserva indígena es hogar de la Tribu Unkechaug, reconocida por el Estado de Nueva York, aunque no por el Gobierno Federal, al ser Nombre01 esposa de Nombre07, indígena estadunidense miembro de la Tribu Unkechaug, y viviendo en la Reservación […], tiene derecho a operar la tienda de cigarrillos a lo interno de la Reservación, no así Nombre01 (...) Esta información, además se cruza y coincide con el documento identificado como “Introducción de todos los cargos” (...) En dicho documento el Gobierno Federal, establece como Nombre08 fue una sociedad formada bajo las leyes de Estado de Nueva York, con un lugar principal ubicado en 9 Squaw Lane, Mastic, Nueva York, y era una empresa que vendía cartones y empaques de cigarrillos que no evidencian el pago de impuestos y tributos aplicados por el Estado de Nueva York, además operaba a través en el sitio de internet smokersden.com, coincidiendo lo anterior, con la información suministrada por el Departamento de Justicia de los Estados Unidos al Gobierno de Costa Rica (...) la trascendencia de Nombre08 de cara a la actividad delictiva de Nombre01. Así las cosas, Nombre08 indicó la testiga Nombre17 era una empresa dedicada a la venta de cigarrillos sin impuestos, exención en el pago de los impuestos que suponía como limitación, el que los cigarrillos sólo podían ser vendidos al interior de la reserva, a sujetos indígenas, para su consumo personal, y no para le reventa. Además la empresa sólo podía ser operada por una persona indígena, siendo Nombre01, esposa de Nombre07, miembro de esa comunidad indígena, por ello, era la persona autorizada para la venta de cigarrillos. Por su parte, el testigo Nombre20, declaro como (sic) en nombre de la Ciudad presentó un reclamo civil contra Nombre07 y Nombre01, pues la tiende Nombre08, vendía cigarrillos que no habían pagado los impuestos estatales, por ello eran cigarrillos muy baratos, al punto que la gente llegaba desde la Ciudad de Nueva York ( a 125 millas de la reservación ) , compraban los cigarrillos sin impuestos, los cargaban en sus vehículos y los llevaban de vuelta a Nueva York, para luego revenderlos en la tiendas de abarrotes, lo cual le generó a la Ciudad pérdidas importantes por los impuestos dejados de percibir. Además explico, como (sic) el negocio de Nombre01 se publicitaba por internet, por medio de periódicos, y se realizaban envíos de cigarrillos por correo, donde incluso a partir del seguimiento que se realiza sobre empresa, se llega a determinar como Nombre08, compraba millones de cartones de cigarros al año, los cuales no habían pagado los impuestos, y eran revendidos en idénticas condiciones, es decir sin el pago de impuestos exigidos por el Estado (...) Era Nombre08 una empresa que vendía aquel producto sin impuestos, según Nombre20 (sic) al amparo de una ley que el Gobierno emitió -ley inexistente-, y donde los cartones de cigarrillos se compraban directamente a la distribuidora sin el sello de impuestos, luego se llevaban a la reservación, y eran vendidos por medio de Nombre08 sin el pago de impuestos, actividad de venta absolutamente ilegal al amparo de la ley federa Nombre17 y estatal, ello pues la comercialización de aquel producto, en todo caso no sólo era al interior de la reserva, o bien, a los miembros de la comunidad indígena, sino y así se entiende del testimonio de Nombre20, era una venta nacional (...) Lo explicad o por Nombre20, se verá es avalado en el fallo de la Corte de Apelación , a sí las cosas, para la Corte de Apelación la CCTA, define que cualquier persona que de forma intencional envíe, transporte, reciba, posea, venda, distribuye o compre cigarrillos de contrabando viola la ley. Se define cigarrillos de contrabando, a una cantidad superior a los sesenta mil cigarrillos que no tenga evidencia sobre el pago de impuestos. Por su parte, la Ley Fiscal de Nueva York 471 analiza esta Corte, indica deberá pagarse un impuesto en todos los cigarrillos que se posean para la venta, debiendo asumirse que todos los cigarrillos dentro del Estado están sujeto a impuestos. También, la Corte analiza como a través de los años el Estado de Nueva York ha estado involucrado en un diálogo con los comerciantes indígenas norteamericanos al por menor, y con las Cortes Federales respecto de las posibilidades del Estado de Nueva York sobre imponer impuestos a la ventas de cigarrillos en la reservas, lo cual ha generado conflictos importantes, no obstante la inmunidad de la tribu impidió que el Estado demandara a los nativos norteamericanos que se negaran a pagar el impuesto, incluso cuando el Estado pretende adoptar medidas drásticas a efectos de lograr el pago de impuestos, como lo fue el interceptar y embargar los cargamentos de cigarrillos que iban dirigidos a la reservas indígenas, los nativos americanos se resisten, incurriendo en actos de violencia y disturbios civiles en las autopistas de Nueva York, lo cual, y así se infiere de la integralidad de esta resolución, propicio una política de tolerancia en cuanto al pago de impuesto sobre los cigarrillos vendidos en las reservas, no empero, la Corte de Apelación es clara y categórica, al establecer como la regulación contenida en la Ley Fiscal de Nueva York 471, siempre permaneció en vigor. Para la Corte, la política de tolerancia de ninguna forma señalo (sic) la elección del Estado de Nueva York de no aplicar sus leyes fiscales, sino que presentó una concesión del Estado asediada ante la difícil y peligrosa aplicación de la ley estatal, dados los complejos problemas jurisdiccionales y políticos que rodeaban las ventas de cigarrillos en la reservas, y lo volátil que resultaría los enjuiciamientos por contrabando " (cfr. folios 888 y siguientes). O sea, no se le imputa (solo) el haber vendido cigarrillos y no tributar sobre las ventas , sino el haber obtenido los embarques de cigarrillos sin tener el sello (anterior a esas ventas) de que, a su vez, los distribuidores habían pagado los impuestos previos . Eso significa que, para la doble incriminación, no estamos hablando de lo que en nuestro sistema sería una evasión del impuesto sobre ventas, sino de la entrada en posesión del objeto , sin el pago, previo a la venta ulterior, de tributos. Es el equivalente, en nuestro medio, a los impuestos de importación o aduanales. Esa conducta está prevista, en Costa Rica, en una ley especial que, entonces, predomina sobre aquella normativa general , aunque concurran con otras transgresiones fiscales referentes al impuesto de ventas . Se trata de la Ley General de Aduanas Nº 7557 del 20 de octubre de 1995 (publicada en La Gaceta 212 del 08 de noviembre de 1995 y vigente para la fecha de los hechos acusados) que establece: "ARTICULO 1.- Ámbito de aplicación. La presente ley regula las entradas y las salidas, del territorio nacional, de mercancías, vehículos y unidades de transporte; también el despacho aduanero y los hechos y actos que deriven de él o de las entradas y salidas, de conformidad con las normas comunitarias e internacionales, cuya aplicación esté a cargo del Servicio Nacional de Aduanas" (las negritas se suplen) agregando el numeral 223: "Relación con delitos tipificados en otras normas tributarias. Si las conductas tipificadas en esta ley configuran también un delito o una contravención establecidos en la legislación tributaria, se aplicarán las disposiciones especiales de la presente ley siempre que esas conductas se relacionen con el incumplimiento de obligaciones tributarias aduaneras o los deberes frente a la autoridad aduanera" (el destacado es externo). Esta normativa estableció delitos aduanales : e Nombre09 un primer momento, desde su vigencia en 1995 y hasta el año 2003 y luego desde esa data, en que se produjo una reforma y hasta la fecha . Como al aquí encartado se le atribuyó, indebidamente, haber recibido dineros de su hermano, desde el año 2002 , lo que ya se dijo que es una conducta atípica al surgir el capital de presuntos delitos ajenos al narcotráfico, hay que tener en cuenta, otra vez, los cambios legislativos operados en la legislación aduanal. Así, en el 2002 y hasta el 2003 resultaba aplicable la Ley General de Aduanas original y a partir de esta fecha y hasta el 2007 (en que se cierra el ciclo de los hechos acusados) regiría la normativa hoy vigente. La primera versión normativa (aplicable para el lapso enero 2002- agosto 2003) señalaba: "ARTÍCULO 214.- Delito básico. Será penado con prisión de uno a tres años y multa equivalente a dos veces el monto de los tributos dejados de percibir, con sus intereses y recargos, quien, mediante simulación, maniobra o cualquier otra forma de engaño, eluda o evada total o parcialmente el pago de la obligación tributaria aduanera, siempre que el valor aduanero de las mercancías supere los cinco mil pesos centroamericanos. ARTÍCULO 215.- Casos específicos de defraudación fiscal aduanera. Incurrirá en las penas señaladas en el artículo anterior, siempre que el valor aduanero de las mercancías supere los cinco mil pesos centroamericanos: a) Quien, sin autorización del órgano competente, dé un fin distinto del dispuesto en la norma autorizante, a mercancías beneficiadas con exención o franquicia o que hayan ingresado libres de tributos. b) Quien, utilizando o declarando información falsa, solicite u obtenga un tratamiento aduanero preferencial. c) Quien, utilizando o declarando información falsa, justifique el cumplimiento de sus deberes, obligaciones o requisitos en su condición de beneficiario o usuario de un régimen o modalidad aduanera, para solicitar u obtener un tratamiento aduanero preferencial. d) Quien, simule, total o parcialmente, una operación de exportación o importación de mercancías o altere la descripción de algunas, con el fin de obtener en forma ilícita un incentivo de carácter aduanero o un beneficio económico. e) El funcionario, el empleado público o el funcionario de la fe pública, que falsamente certifique o haga constar que se satisfizo total o parcialmente un tributo. ARTÍCULO 216.- Agravantes. La pena será de tres a cinco años y la multa equivalente a tres veces el monto de los tributos dejados de percibir, con sus intereses y recargos, cuando, en alguno de los dos artículos anteriores concurra alguna de las siguientes circunstancias: a) Intervengan en el hecho tres o más personas, en calidad de autoras. b) Intervenga en calidad de autor, instigador o cómplice, un funcionario público en ejercicio de sus funciones, con ocasión de ellas o con abuso de su cargo" (las negritas no pertenecen al texto original). Pero el artículo 1° de la Ley Nº 8373 de 18 de agosto de 2003 modificó esa normativa, por lo que la ley vigente en el otro lapso de hechos acusados (agosto de 2003 a 2007) se pronunciaba en estos términos: "Artículo 214.— Defraudación fiscal aduanera. Quien valiéndose de astucia, engaño o ardid, de simulación de hechos falsos o de deformación u ocultamiento de hechos verdaderos, utilizados para obtener un beneficio patrimonial para sí o para un tercero, eluda o evada total o parcialmente el pago de los tributos, será sancionado con una multa de dos veces el monto de los tributos dejados de percibir más sus intereses y una pena de prisión, de conformidad con lo siguiente: a) De seis meses a tres años, cuando el monto de los tributos dejados de percibir exceda de los cinco mil pesos centroamericanos y no supere los quince mil pesos centroamericanos. b) De uno a cinco años, cuando el monto de los tributos dejados de percibir supere los quince mil pesos centroamericanos. El monto de los tributos dejados de percibir, será fijado en sede judicial mediante ayuda pericial, de conformidad con la normativa aplicable. Artículo 216. —Agravantes. La pena será de cinco a nueve años de prisión y la multa equivalente a dos veces el monto de los tributos dejados de percibir más sus intereses, cuando en alguna de las circunstancias expuestas en el artículo 214 de esta Ley, concurra por lo menos una de las siguientes conductas o situaciones: a) Intervengan en el hecho delictivo dos o más personas en calidad de autoras. b) Intervenga, en calidad de autor, cómplice o instigador, un funcionario público o un auxiliar de la función pública aduanera en el ejercicio de sus funciones, con ocasión de ellas o con abuso de su cargo. c) Se hagan figurar como destinatarias, en los documentos relativos al despacho de las mercancías, personas naturales o jurídicas inexistentes. d) Se perpetre, facilite o evite su descubrimiento, mediante el empleo de violencia o intimidación. Artículo 220 bis. —Falsedad de la declaración aduanera y otros delitos de tipo aduanero. Será reprimido con prisión de dos meses a tres años: a) Quien introduzca mercancías en el territorio aduanero nacional mediante una declaración falsa relacionada con el régimen, la clasificación, la calidad, el valor, el peso, la cantidad y/o la medida de tales mercancías o por medio de un pago inferior de tributos a los que legalmente estaba obligado, o ambos. b) Quien, clandestinamente, ingrese mercancías en tránsito, sin pagar los tributos correspondientes. c) Quien transporte, almacene, adquiera, venda, done, oculte, use, dé o reciba en depósito, destruya o transforme, mercancía introducida al país eludiendo el control aduanero. d) Quien sustituya mercancías del depósito aduanero, de las unidades de transporte, de los estacionamientos transitorios o de las zonas portuarias." Nótese que bajo ninguna de esas leyes, la anterior o la posterior y bajo ninguna de las modalidades delictivas simples, se cumpliría el requisito del delito grave previo porque, en nuestro derecho, ninguna de esas conductas tenía, a la fecha de los hechos acusados, una pena mínima abstracta de Nombre01 uatro años. La única excepción es la conducta agravada contemplada en el numeral 216 de la última legislación aduanera citada, pero no podría hacerse el encuadre de la doble incriminación bajo ese tipo penal porque Nombre01 fue acusado y sentenciado por una actividad individual, sin que se acreditara que actuara conjuntamente, con violencia o usando personas jurídicas inexistentes. Antes bien, cuando así se acusó, resultó absuelto en firme, sentencia ésta que es la única que tiene valor, sin que en nuestro sistema jurídico se puedan contemplar conductas sobreseídas para efectos punitivos de otros delitos. Para continuar con la cadena de omisiones, tanto probatorias como analíticas, tampoco reparó el Tribunal de instancia, al analizar el tema de la doble incriminación (aún bajo la normativa en que lo hizo), en lo referente a la prescripción de la acción penal en estos delitos, lo que era necesario porque, ya se adelantó, la vigencia de la acción penal es consustancial a la doble incriminación : “En opinión de un sector de la doctrina la prescripción del hecho previo del que provienen los bienes produce la ruptura de la conexión entre el bien y el hecho que lo origina. En el momento en que no pueda ser perseguido un delito por razón de su prescripción, quedarán descontaminados todos los bienes originados en aquél. No parece razonable, se alega, prolongar la procedencia delictiva más allá del plazo en el que el delito es perseguible. No es correcto sancionar a una persona por el blanqueo de bienes procedentes de un delito ya prescrito, cuyos responsables no van a poder ser sancionados penalmente. De lo contrario, se produciría una extensión desmesurada del tiempo durante el que los bienes tienen carácter contaminado, de manera que de no fijar un límite, como por ejemplo la prescripción del delito previo, seguirían manteniendo ese carácter indefinidamente” (Cfr. Nombre15. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 428-429). Y, en cuanto a ese tema, la legislación tributaria tiene normas especiales, diferentes a la del resto de la legislación procesal ordinaria. Así, en el Código de Normas y Procedimientos Tributarios (legislación bajo la cual el Tribunal de instancia hizo el encuadre de la doble incriminación), el plazo de la prescripción de la acción penal se fija en tres años en la mayoría de los casos y en cinco si la causa se basa en datos falsos en las declaraciones impositivas, agregándose: Artículo 52.- Cómputo de los términos. El término de prescripción se debe contar desde el primero de enero del año calendario siguiente a aquel en que el tributo debe pagarse. (...) Artículo 91.— Reglas de prescripción. La prescripción de los delitos tributarios se regirá por las disposiciones generales del Código Penal y las del Código Procesal Penal. (Ref. por Ley 7900 de 3 de agosto de 1999)” (el destacado no pertenece al texto original). Por otra parte, en la Ley General de Aduanas el plazo de prescripción de la acción penal es de cuatro años, según el numeral 62. Desde esta perspectiva, si Nombre26 fue detenido el 02 de agosto de 2004 y se le viene atribuyendo el envío de dinero a Nombre01 desde mucho antes (aunque éste lo usara después), era imprescindible el análisis de cada flujo dinerario y de la cuota anual evadida, a los fines tanto de la tipicidad objetiva como de la vigencia de la acción penal según el cómputo de los plazos prescriptivos, nada de lo cual se hizo en la resolución de instancia ni, por no contarse con los datos contables anuales, se puede hacer ahora. Ya se dijo, también, que no se aportó ninguna prueba sobre las reglas jurídicas de punición, y mucho menos las de prescripción, para ese evento en Norteamérica. Eso bastaría para, aún bajo el primer encuadre típico efectuado por el Tribunal de instancia, que se dijo no era correcto, resolver el fondo de la cuestión lo que, con mayor razón puede hacerse con el otro encuadre referido. En definitiva, sin hacer mayores análisis y aceptando, inclusive, los hechos probados y el análisis probatorio y jurídico efectuado en la sentencia de instancia (que, se insiste, no es del todo acertado y, mucho menos, completo), no existiría tipicidad objetiva y ello implica que los recursos deban acogerse y absolverse, desde esta sede, al encartado, desde que a nada conduciría un reenvío, pues lo expuesto surge de un análisis jurídico y de ausencia de prueba que no puede hacerse llegar en este estadío procesal.

§3. Elementos subjetivos del tipo: Por otro lado, cuando el numeral 69 de la Ley de Psicotrópicos, aplicable a los hechos, disponía: "Será sancionado con pena de prisión de ocho a veinte años: a) Quien adquiera, convierta o transmita bienes de interés económico, sabiendo que estos se originan en un delito grave, o realice cualquier otro acto para ocultar o encubrir el origen ilícito o para ayudar, a la persona que haya participado en las infracciones, a eludir las consecuencias legales de sus actos. b) Quien oculte o encubra la verdadera naturaleza, el origen, la ubicación, el destino, el movimiento o los derechos sobre los bienes o la propiedad de estos, a sabiendas de que proceden, directa o indirectamente, de un delito grave. La pena será de diez a veinte años de prisión cuando los bienes de interés económico se originen en alguno de los delitos relacionados con el tráfico ilícito de estupefacientes, sustancias psicotrópicas, legitimación de capitales, desvío de precursores o sustancias químicas esenciales y delitos conexos" (el destacado es suplido), estaba exigiendo un dolo directo de primer grado. Es sabido que hay tres tipos de dolo: directo de primer grado; indirecto o directo de segundo grado, también conocido como de consecuencias necesarias y dolo eventual. En principio cualquier hecho doloso puede ser cometido por cualquiera de esas formas de dolo, salvo que en la legislación se establezca, expresamente, lo contrario. Así, el us o legislativo de las formas ‘a sabiendas’ o ‘sabiendo’ implica que se requiere un dolo directo: "Cuando el legislador emplea expresiones tales como 'a sabiendas' acentúa el lado cognitivo del dolo e implica respecto al elemento concreto para el cual requiere dolo directo de segundo grado (sic) renuncia a la punición por dolo eventual. Los artículos 69 de la Ley de Psicotrópicos (...) requieren 'el conocimiento' de que el objeto de interés económico proviene de un delito específico (...) Basta que el agente conozca las circunstancias fácticas que caracterizan el hecho previo. No es necesario que conozca las particularidades del hecho previo…" (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 125-126, se suplen las negritas). En criterio del Tribunal , puede haber, en el texto transcrito antes, alguna confu sión en la denominación de ese énfasis en el elemento ‘conocimiento’ (pues se señala que es un dolo directo de segundo grado, cuando es de primero, pues el de segundo grado es el denominado ‘dolo de consecuencias necesarias’ en donde no interesa tanto el conocimiento, sino que predomina la voluntad , cfr. Nombre14. El dolo. Editorial Juritexto. San José, 19 99 , pág s . 268-270 ). Pese a esa diferencia terminológica, se coincid e con dicho autor , y con un importante sector doctrinal citado en anteriores referencias , en que la expresión excluye otras formas de dolo (vgr. el eventual) y admite, solo, el directo que, definitivamente, no es una mera sospecha: “…el elemento cognitivo del dolo no es una mera sospecha sobre la concurrencia de los elementos objetivos del tipo, ni tampoco, en el polo opuesto, exige la certeza al respecto (…) No es, por tanto, necesario para describir el dolo (…) acudir a afirmaciones incompatibles con la seguridad jurídica y con el concepto penal de dolo, como la muy frecuente en doctrina y jurisprudencia de que es suficiente el conocimiento de que los bienes ‘proceden de una actividad delictiva de modo genérico’ como si nuestro derecho penal fuera de autor y no de hecho (…) el dolo en el delito de blanqueo de capitales siempre tiene por objeto delitos y no actividades delictivas genéricas” (Cfr. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26. También en la siguiente página web : www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, págs. 76-77). Con esa advertencia, la doctrina señala que, por tratarse de un elemento normativo, ese dolo tiene dos sustratos, uno fáctico y otro valorativo: “El sustrato fáctico está integrado por los hechos constitutivos de una actividad delictiva. El autor ha de conocer aquellas circunstancias fácticas perceptibles por los sentidos, que han de servirle de base para valorar su carácter delictivo. Se trata, al igual que en los elementos descriptivos del tipo, del conocimiento de las circunstancias de hecho (…) El autor del delito de blanqueo ha de proceder a una valoración de los hechos que ha percibido. De tal valoración ha de derivarse que tales hechos constituyen una conducta delictiva” (Cfr. Nombre15. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 660-661). Esto es importante porque, desde el sustrato fáctico, la actividad desplegada por Nombre01 en Estados Unidos, de venta de tabaco sin impuestos a no indígenas, se hacía en forma pública, anunciándose por medio de una página por internet, con entregas a diversas partes de La Unión a través del correo postal de ese país, existían múltiples comercios de ese mismo giro en la misma reserva indígena y ninguna persona había sido , siquiera , procesada por tal actividad , según se desprende, de forma unánime, de la prueba oral recibida en el juicio . Ergo, desde el sustrato fáctico, Nombre01, quien había ido a trabajar con Nombre01 a ese negocio, no tenía ningún elemento ni siquiera para dudar de que se estuviera efectuando una actividad delictiva , máxime que los envíos de remesas se hacían a través de bancos , tanto de Estados Unidos como de uno estatal en Costa Rica, que suponen controles importantes para evitar el trasiego de dinero ilícito. Desde el sustrato valorativo tampoco surgen datos adicionales , pues si la actividad original era aparentemente lícita, no había ninguna razón para cuestionarse su ilicitud. Por otra parte, la doctrina insiste en que ese dolo debe estar al momento de la adquisición del bien , es decir, debe ser actual , sin que baste que esté en otros momentos: “El autor debe conocer el origen del objeto en el momento de su obtención. El conocimiento posterior ('dolus subsequens') no es penalmente relevante ('dolus subsequens non nocet') ni genera una posición de garante, conforme al artículo 18 cod. pen. La adquisición del objeto sin conocer su origen ilícito implica una adquisición de la posesión de buena fe, que excluye el delito de legitimación de capitales (...) no son delitos permanentes" (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 125-126, se suplen las negritas). “El dolo ha de ser antecedente o concurrente en la acción. El subsiguiente es irrelevante…” (Nombre27. El marco jurídico del blanqueo de capitales: aspectos penales y administrativos. En la siguiente dirección electrónica: http://www.datadiar.com/actual/novedades_05/penal/blanqueo/d_may_02c.htm). “El dolo debe existir durante la realización del comportamiento, esto es, durante su ejecución. Por tanto, el dolus antecedents, es decir, un dolo anterior a la comisión, no es suficiente (…) al igual que el dolus antecedents, se admite que el dolus subsequens o dolo posterior al hecho, no es dolo en el sentido del Derecho Penal. De la exigencia de que el conocimiento correspondiente al dolo sea actual, se deriva que no tenga ninguna consecuencia jurídico-penal el conocimiento posterior a la realización de la conducta (…) Se trata de una mención expresamente recogida en el Convenio de Viena de 1988 que, en su artículo 3.c).i), se refiere a ‘la adquisición, posesión o utilización de bienes, a sabiendas, en el momento de recibirlos, de que tales bienes proceden de alguno de alguno o algunos de los delitos tipificados…’ La misma referencia se contiene en los Convenios de Palermo (art. 6.1.b.i) (…) Es irrelevante desde el punto de vista penal si el conocimiento del origen delictivo de los bienes es obtenido con posterioridad a la realización de las acciones de blanqueo de capitales. Tiene plena vigencia (…) el principio dolus superveniens non nocet” (Cfr. Nombre15. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 662-663). Por ello no es aceptable que el Tribunal de instancia haya referido: "Si bien en el hecho quinto de la acusación, el Ministerio Público incluye la remisión de la cuenta de Nombre08 desde Estados Unidos de la suma de Dieciséis millones setecientos noventa y tres mil, novecientos ochenta dólares, a la cuenta de ahorro en dólares en el Banco de Costa Rica de Nombre01. Estos envíos según puede verse en el Apéndice N°4 del Informe No. 212-DEF-R-140-11 de la Sección de Delitos económicos y financieros del O.I.J., se iniciaron en octubre del año dos mil y se extendieron sin ninguna interrupción durante los años, dos mil uno, dos mil dos, dos mil tres hasta el 19 de marzo de 2004. Debe tomarse en cuenta, que a esa fecha no había sido detenido Nombre07 en Estados Unidos, por el cargo de contrabando de cigarrillos, y por ello no podría afirmarse con certeza que su hermano Nombre01 conocía la ilicitud de ese negocio que generaba -en su totalidad- los fondos remitidos al Banco de Costa Rica. Por ser necesario el conocimiento acerca del origen ilícito de los fondos legitimados, a los efectos de la tipicidad del delito, el Tribunal ha debido considerar que el conocimiento en relación con esos envíos de dinero surge a partir de la detención de Nombre07 en Nueva York, el 2 de agosto de 2004, por lo que sólo un depósito, el efectuado el seis de agosto de ese mismo año y recibido en la cuenta de Nombre01, se puede considerar teñido por el conocimiento de la ilicitud de su origen. Debe comentarse por ser de interés en este punto, que ese último depósito reviste condiciones diferentes en relación con todos los depósitos anteriores que pueden verse en el Apéndice 3 citado, a saber: el monto de cuatro millones cuatrocientos mil dólares supera con creces los anteriores cuyas cifras suelen oscilar entre los doscientos y los trescientos mil dólares -con excepción de un depósito efectuado por la operadora de fondos Lloyd de dos millones quinientos mil dólares en noviembre de dos mil dos- y representa una cuarta parte de todos los depósitos efectuados a lo largo de tres años y diez meses en esa cuenta de ahorros. Se diferencia de los depósitos precedentes en que el dinero no lo remite Nombre08, sino TMG Nombre16 Partners. La explicación de este cambio en el remitente surge de la temporalidad del depósito, cuatro días después de que se "hace oficial" con la detención de Nombre01, el carácter ilícito de su actividad comercial que realiza por medio de Nombre08. Sin embargo, la identidad de Nombre01 está presente también en este depósito, pues sus iniciales Nombre16., que según dijo el testigo Nombre20, imponía Nombre01 en todas sus pertenencias y negocios para que se identificaran con él, están en el nombre del depositante, de modo que no puede negarse que su origen está relacionado con Nombre01 y su actividad ilícita, conocida a ese momento por el imputado Nombre01. También considera el Tribunal que al momento de efectuar la redención de los fondos depositados por Nombre01 en el Banco de Costa Rica, diez días después de la detención de Nombre01, el imputado Nombre01 conoce el origen de los fondos y bajo ese conocimiento accede a borrar toda huella de las inversiones y actividad bancaria de su hermano en el Banco de Costa Rica, pues según se indica en el Informe No. 212-DEF-R-140-11 de la Sección de Delitos económicos y financieros del O.I.J, y puede verse al folio 356 vuelto del expediente principal, hasta la suma de cinco mil ochocientos dólares depositados en una cuenta de Nombre01 fueron depositados, junto con el fondo por diez millones trescientos cincuenta mil, doscientos cuarenta y ocho dólares en la cuenta de ahorros de Nombre01 para luego constituir un nuevo Fondo de Crecimiento en dólares a nombre de Nombre01 en el Banco de Costa Rica. De concluirse entonces que todos los fondos remitidos por Nombre01 a su cuenta y que constituyeron los dineros del Fondo en cuya redención participaron tanto Nombre26 como Nombre01 y los cuatro millones cuatrocientos mil dólares que fueron remitidos con posterioridad a la detención de Nombre01 provinieron de la actividad ilícita de contrabando de cigarrillos de Nombre01, situación que era conocida por Nombre01 al momento de recibir y mantener en su cuenta esos fondos y al participar en la redención del Fondo de Crecimiento en dólares del Banco de Costa Rica" (cfr. folios 938-939, el destacado es suplido). Nótese que si bien las juezas y juez de instancia, inicialmente refirieron que no podía considerarse que el encartado supiera que todo el dinero que él recibi ó de su hermano, antes de la detención de éste en Estados Unidos, proviniera de un delito, inmediatamente después hacen surgir el conocimiento del dolo, ya no en la adquisición sino en la manutención , en su cuenta , de esas remesas, por la redención del Fondo y en las inversiones subsiguientes, con lo que quieren decir que si bien el encartado, al recibir el dinero , no tenía dolo (conocimiento del delito procedente), luego adquirió dicho conocimiento y es , por esa circunstancia sobreviniente , que le hacen el reproche, di cho así, retroactivo, lo que no es sino aplicar el tema del dolo subsecuente que, conforme a lo enunciado atrás, no es aceptable. Es cierto que el artículo comentado establece: "a) Quien adquiera, convierta o transmita bienes de interés económico, sabiendo que estos se originan en un delito grave, o realice cualquier otro acto para ocultar o encubrir el origen ilícito o para ayudar, a la persona que haya participado en las infracciones, a eludir las consecuencias legales de sus actos. b) Quien oculte o encubra la verdadera naturaleza, el origen, la ubicación, el destino, el movimiento o los derechos sobre los bienes o la propiedad de estos, a sabiendas de que proceden, directa o indirectamente, de un delito grave..." por lo que podría decirse que el dolo puede estar en tres momentos: el de la adquisición, el de la conversión y el de la transmisión y que, en este asunto, las juezas y juez de instancia consideraron que, para una suma, estuvo desde la adquisición (pues fue traslada luego de la detención de Nombre01) y, para las restantes, a partir de la conversión y la transmisión. Sin embargo, no pueden escindirse artificialmente las acciones pues, como ha quedado de manifiesto con la dogmática citada , los instrumentos internacionales de los que surgen esos tres momentos son enfáticos en exigir que el conocimiento del sujeto activo esté en el momento de la recepción de los bienes, no en los restantes momentos. Así, en la Convención de las Naciones Unidas contra el tráfico ilícito de estupefacientes y sustancias sicotrópicas (aprobada por la ONU en la sesión celebrada el 19 de diciembre de 1988 en Viena, Austria y ratificada por Costa Rica en 1990), el artículo 3.1.c.i dispone: "Artículo 3 DELITOS Y SANCIONES. 1. Cada una de las Partes adoptará las medidas que sean necesarias para tipificar como delitos penales en su derecho interno, cuando se cometan intencionalmente: c) a reserva de sus principios constitucionales y a los conceptos fundamentales de su ordenamiento jurídico: i) la adquisición, la posesión o la utilización de bienes, a sabiendas, en el momento de recibirlos, de que tales bienes proceden de alguno o algunos de los delitos tipificados de conformidad con el inciso a) del presente párrafo o de un acto de participación en tal delito o delitos" (se suple el destacado). En igual sentido se pronuncia la Convención de Palermo que refiere: "Artículo 6. Penalización del blanqueo del producto del delito 1. Cada Estado Parte adoptará, de conformidad con los principios fundamentales de su derecho interno, las medidas legislativas y de otra índole que sean necesarias para tipificar como delito, cuando se cometan intencionalmente: b) Con sujeción a los conceptos básicos de su ordenamiento jurídico: i) La adquisición, posesión o utilización de bienes, a sabiendas, en el momento de su recepción, de que son producto del delito" (se suplen las negritas). Ya se dijo que este instrumento no es aplicable aquí, por ser ley posterior, pero se menciona a los fines de evidenciar cómo, a pesar de ser extremadamente amplio en sus regulaciones, limita el dolo, de la tenencia posterior, a que éste estuviera presente al momento de la recepción del bien u objeto, por lo que ambas normativas se convierten en límites interpretativos de la ley promulgada como resultado de la suscripción de esa obligación internacional. Ergo, los tres verbos aluden a actos en donde haya dolo inicial en la recepción , sin que sea posible que un acto efectuado sin dolo, sin conocimiento ni voluntad de cometer el tipo objetivo, es decir, con buena fe, pase a convertirse luego, por el solo transcurso del tiempo, en un hecho ilícito desde que, en tales supuestos, la conversión y transmisión son actos propios del ejercicio de los derechos de titularidad y posesión (originalmente de buena fe). En otras palabras, sería un absurdo jurídico considerar que si la persona recibió de buena fe, sin dolo y, posteriormente, llega a conocer el carácter ilícito del hecho del que provenía el dinero, se le exija o bien que entregue la cosa al Estado o que no haga ningún acto posesorio con ella. Ahora bien, esto conduciría a hacer una diferenciación (tanto para efectos de tipo objetivo y dolo, como a los del comiso) entre los dineros recibidos por Nombre01, antes de la detención de su hermano (recibidos sin dolo, y por tanto, no configurativos del tipo penal que nos ocupa) del recibido después. Es decir, habría que establecer el monto total de lo recibido por el encartado. A esto restarle lo recibido antes del 10 de enero de 2002 (en que no había tipicidad objetiva para el hecho). A lo que queda, restarle lo recibido antes del 02 de agosto de 2004 (fecha de detención de Nombre01 en Estados Unidos, que el Tribunal fija como aquella de la que surge el dolo), sumas esas que fueran recibidas sin dolo por el encartado y, por tanto no susceptibles, desde la tipicidad subjetiva, de ser delictivas. A lo que queda, es decir, aproximadamente cuatro millones de dólares, debería extraerse, por cada período anual (a los fines de la doble incriminación impositiva) lo dejado de pagar en impuestos pues solo esto (y no el resto de la ganancia) es lo que constituiría el delito. Esa suma resultante habría que demostrarse en qué períodos se obtuvo, para ver si es posible hacer la adecuación al tipo objetivo en Costa Rica, obviamente sin tomar en cuenta intereses u otras ganancias generadas en el país, sino solo el monto original resultante. Nada de eso se hizo y se optó por, en bulto, aludir a todo el dinero, sus intereses y demás, tanto para los efectos de la condena como, posteriormente, del comiso generalizado. Para hacer esto último, el Tribunal (obviando el anacronismo en que incurre al señalar que el párrafo que aplicará , de la ley Nº 8204 , tiene su inspiración en el numeral 6 de la Convención de Palermo, ver folio 940, cuando ya se vio que la ley aplicable a este asunto es la de 2002 y que esta Convención , si bien fue adoptada en las Naciones Unidas en el año 2000, el país la ratificó hasta el 2003 ) opta por señalar que no son aquellos primeros verbos los que se aplican sino que: "Los hechos acusados, en criterio del Tribunal no encuentran adecuación en la primera parte del artículo 69 citado "Quien adquiera, convierta o transmita bienes de interés económico (...)" sino en la que se lee "o quien realice cualquier otro acto para encubrir el origen ilícito o para ayudar la persona que haya participado en las infracciones a eludir las consecuencias legales de sus actos (sabiendo que estos se originan en un delito grave)" (...) procederemos a descomponer el tipo penal (...) con la intención de relacionar cada parte del tipo con la conducta del imputado y las circunstancias del caso (...) Análisis de la Tipicidad Objetiva. Artículo 69 párrafo primero: "(...) quien realice cualquier otro acto para encubrir el origen ilícito o para ayudar la persona que haya participado en las infracciones a eludir las consecuencias legales de sus actos." A.- Quien realice cualquier otro acto.- El verbo que define la acción típica es realizar cualquier otro acto, en alusión a que no se trata de los (sic) acciones "adquiera, convierta o transmita "que preceden esta parte del párrafo primero del artículo 69. El Tribunal se decanta por esta forma verbal porque las conductas de don Nombre01, que se han tenido por demostradas en el acápite correspondiente de esta sentencia, no están contenidas en esas formas verbales, sino que son de naturaleza bancaria en unos casos y en otros son actos dispositivos a partir de esos dineros recibidos por medio de operaciones bancarias de carácter transnacional. El análisis de los actos realizados debe iniciarse con los primeros que se dieron cronológicamente. i.- Recibir y mantener en su cuenta en dólares No. 230-0042636-9 del banco de Costa Rica dinero proveniente del comercio ilícito de cigarrillos de Nombre07 en la Reserva Indígena […]. El 6 de agosto de 2004, se envió desde los Estados Unidos una transferencia de TGM Nombre16 Partners, por la suma de cuatro millones cuatrocientos mil dólares a la cuenta aludida, y don Nombre01 los recibió y mantuvo depositados a su nombre, sabiendo que provenían de la actividad delictiva por la cual había sido detenido su hermano cuatro días antes en Nueva York. ii.- La Redención del Fondo de Crecimiento en Dólares y las operaciones subsecuentes. Cinco días después de recibirse en la cuenta de Don Nombre01 el depósito aludido, o sea el once de agosto de dos mil cuatro, Nombre07, envía a "Nombre05" su ejecutivo de confianza en el Banco de Costa Rica, que resulta ser el testigo de la defensa Nombre05, el documento que puede verse a folio 28 del Expediente Principal, donde le autoriza a transferir todos, en mayúscula, negrita y subrayado los fondos de su cuenta de inversión, y le indica que sin (sic) tiene alguna duda se comunique al teléfono móvil de Nombre01 cuyo número incluye en la comunicación. En esta escueta manifestación de voluntad de Nombre01 se advierte la urgencia e inminente riesgo en que se encuentra permanencia de ese dinero en su patrimonio y sin restricciones, situación a la que responde eficiente, rápida y fielmente su hermano Nombre01, que un día después, el doce de agosto dirige una comunicación al Licenciado Nombre05, quien ha manejado hasta ese momento las inversiones de Nombre01 y las suyas en el Banco de Costa Rica, la redención de esos fondos y su depósito en la cuenta de ahorro en dólares de don Nombre01, lo que se cumple escrupulosamente por parte del Banco. Una vez depositados los más de diez millones de dólares en su cuenta, don Nombre01 constituye otro fondo de crecimiento -esta vez a su nombre- por la suma señalada a la que se agregan cinco mil ochocientos dólares que permanecían aún depositados en la cuenta de ahorros de Nombre01 en Banco de Costa Rica, de modo que se deja cumplido el designio de Nombre01 de que ningún dinero permaneciera a su nombre en el Banco de Costa Rica y por ello fuera pasible de ser inmovilizado, por parte de las autoridades federales que lo habían detenido nueve días antes en Nueva York. iii.- Compra de propiedades y bienes muebles.- En el Legajo 1 de la prueba ofrecida por el Ministerio Público, se incluye toda la información notarial y registral concerniente a las transacciones en virtud de las cuales, a partir del año dos mil siete y hasta noviembre de dos mil diez, don Nombre01 en su condición personal o a nombre de la sociedad Nombre01 del Caribe S.A. en la que tuvo participación mayoritaria, adquirió bienes muebles e inmuebles con el dinero enviado por Nombre07. El Informe de la Sección de Delitos Económicos y Financieros del O.I.J. No. 212-DEF-R-140-11, a partir del folio 343 y hasta el folio 346 vto. del Legajo Principal de esta causa, describe todos los bienes inmuebles que fueron adquiridos por Nombre01, quien comparece en su condición personal y se hace con la propiedad de esos bienes, y en el apartado del estudio dedicado a la sociedad H, constituida por don Nombre01 y su esposa Nombre28 se indica que esta sociedad compró cinco fincas en la Provincia de Limón. Acerca del valor de esas adquisiciones, el Dictamen referido consigna que el valor de los bienes inmuebles asciende a la suma astronómica de un mil novecientos ochenta y dos millones seiscientos cincuenta y tres mil setecientos cincuenta y seis colones. En relación con los bienes muebles su descripción e información notarial y registral puede verse en el Legajo de Prueba uno y en el Informe de la Sección de delitos Económicos y Financieros, en los anexos No.1 y No. 2 se consigna la descripción de esos bienes y el valor de ellos se fija en la suma de ciento sesenta y cinco millones, setecientos cuarenta mil colones, los del primer anexo y en el segundo anexo concerniente a embarcaciones se consigna un valor de Sesenta y cuatro millones doscientos ochenta mil, doscientos cincuenta y un colón, que suman en total, doscientos treinta millones, veinte mil doscientos cincuenta y un colón. Debe mencionarse que el tiempo en el cual se efectúa la adquisición de bienes inmuebles, entre 2007 y 2010, no es casual, sino que se debe relacionar con la situación del proceso judicial seguido por las autoridades criminales federales de los Estados Unidos, porque según dijo la testiga Nombre29 en ese caso, el Juicio en contra de Nombre01 se inició en el año dos mil siete, en octubre y se prolongó hasta mayo de 2008, y las propiedades se empiezan a comprar en julio de 2007. El Tribunal concluye de esta proximidad temporal entre el juicio y las adquisiciones de bienes inmuebles que el cambio en la situación procesal de Nombre01, que lo lleva a enfrentar un juicio federal, le impone la necesidad de no limitar el encubrimiento a las operaciones bancarias sino a diversificarse mediante la inversión inmobiliaria para alejar el patrimonio de Nombre01 aún más de su origen ilícito, se trata de una legitimación, -por decirlo de algún modo- de segundo grado , en que el dinero legitimado se convierte en propiedades, con lo que se diluye el rastro del dinero, que ya no está solamente en el Banco de Costa Rica sino en diversas inversiones inmobiliarias" (cfr. folios 940 a 942; las negritas no pertenecen al texto original). Pero, aunque lo que se le atribuya sea el haber mantenido esos dineros en su poder, redimir los fondos y luego hacer las inversiones, resulta que el dolo debía estar al momento de la recepción del dinero, desde que eso es lo que privilegia, como se ha indicado, los diferentes instrumentos convencionales, aún posteriores y de más amplio alcance que la legislación aplicable a este asunto, aunque no sea la adquisición lo que se reprima, sino los actos posteriores . También es evidente que no hay, en autos, ninguna prueba que permita establecer, ni en esta sede ni a través de un reenvío, esos rubros ni distinguirlos de los montos recibidos antes de que se diera la doble incriminación (para ponderar, también, el tema de la prescripción de la acción penal) como para hacer una diferenciación entre unos y otros , sino que ello requeriría una nueva investigación o la producción de prueba nueva la que, como se dirá, no es posible . Ahora bien, sin parar mientes en esos problemas probatorios referentes a la suma recibida por el encartado luego de la detención de su hermano (de la que, se insiste, no se determina qué monto de ella, si es toda o no, proviene de la evasión fiscal y cuál , de las ganancias, lícitas, de tal actividad) resulta que la construcción del conocimiento del dolo a partir del hecho de esa detención, tampoco es algo que esta Cámara avale. Nótese que el hecho previo con relación causal (la venta de cigarrillos; no la posesión de arma que ninguna relación tiene con el capital ni los hechos por los que fue absuelto) fue un elemento, inclusive, ampliamente discutido y polémico en el mismo sistema de justicia norteamericano, al punto que un juez de ese país eliminó los cargos, aduciendo la ambigüedad de las leyes aplicadas y la posibilidad de que Nombre01 ignorara el carácter ilícito de lo que hacía. Es decir, la anulación de cargos por un juez se basó en la posibilidad de que Nombre01 incurriera en lo que, en nuestro sistema, sería el equivalente a un error de prohibición invencible. Aunque esa decisión fue luego revertida por otro s togado s , es importante , a los efectos del error de tipo alegado por la defensa , en este caso concreto pues...si a los ojos de una autoridad jurisdiccional norteamericana, con amplio conocimiento en leyes de ese país, era razonable que Nombre01 dudara sobre el tema impositivo de la materia de que se trataba (venta de cigarrillos en la reserva indígena a la que pertenecía su esposa)...¿no es más válido que de ello dudara el propio Nombre01, un hombre no versado en leyes, que había ido a Estados Unidos y trabajado en el local comercial, que estaba abierto al público y se publicitaba ampliamente en ese país por los medios de comunicación masiva incluido internet y cuyos cigarrillos, de tabaco, se enviaba Nombre09 usando hasta el correo postal de ese país? ¿no era más esperable que Nombre01, quien venía recibiendo dinero de su hermano desde hacía más de cuatro años (al 02 de agosto de 2004), dudara de si la procedía de esa suma ulterior era lícita o no? Es cierto que, como bien lo dice la sentencia de instancia, citando a un autor extranjero: "'En cualquier caso, la utilización del sistema bancario y financiero para reciclar los beneficios que se obtienen de distintas actividades delictivas ha sido una práctica extendida e impune durante muchos años, prácticamente en todo el mundo. Partiendo de cierta complicidad del sistema financiero, se ha utilizado dicho sistema para la transformación de capitales de origen ilícito, provenientes de la comisión de delitos graves, en dinero libre de sospecha. Sin duda, todo ello no hubiera sido posible si las entidades bancarias e intermediarios financieros hubieran puesto un poco de diligencia y colaboración, detectando las transacciones de origen poco claro. Pero algunas entidades financieras han decidido ignorar el origen ilícito de los capitales, en la medida que obtenían importantes beneficios económicos. El libre tránsito de capitales en Europa obliga a mejorar las inspecciones sobre dichos capitales en origen, sin que esta política de intervención pueda ser interpretada como una traba a su libre circulación. Por ese motivo se han ido aprobando sucesivas directivas reguladoras de las actividades bancarias, crediticias y profesionales que inciden en la transformación de capitales y bienes.' Ferré Olivé, J, op. cit. p. 168. Contrariamente a la idea que existe en el conocimiento común, de que la remisión de fondos por la vía bancaria excluye de suyo el delito de Legitimación de Capitales, tal y como ha sucedido en el caso bajo examen las entidades bancarias y financieras pueden ser utilizadas para legitimar capitales, de modo que pueden contribuir activamente en la producción de los resultados dañosos de esta actividad delictiva en el orden socioeconómico" (cfr. folios 932-933, se suple el destacado). No obstante, aunque el sistema bancario pueda y haya sido usado en otros casos y en diferentes latitudes a los fines de la legitimación, es claro que ese elemento debe ponderarse, junto con otros, para extraer el dolo, desde que no es lo mismo quien envía un trasiego de dinero a escondidas ("en sacos", refiere el impugnante) respecto de quien lo hace usando instituciones bancarias de dos países, destacándose ambas, aunque una más que otra, por sus nada despreciables controles sobre los orígenes monetarios. Tampoco es igual el trato que debe dársele a la prueba si la actividad generadora es ilícita per se (bienes obtenidos del narcotráfico, por ejemplo) a si proviene de una evasión fiscal donde hay un origen lícito del dinero, aunque posteriormente se omita pagar los impuestos. Entonces, si en el caso concreto, Nombre01 trasladaba sumas de dinero desde hacía años (a veces por varios millones de dólares, como se reseñó atrás en una transferencia por más de dos millones, antes de la de cuatro millones de dólares que interesa) usando bancos norteamericanos y nacionales, a los que reportaba el origen de esos dineros al punto que, en Costa Rica autoridades bancarias fueron a hacer una visita al referido negocio, constatándose su existencia y la publicidad de sus actuaciones, eso es importante considerarlo a los efectos del dolo del aquí endilgado...¿pudo cambiar su concepción la detención de su hermano? En criterio de esta Cámara no, porque tal detención se produjo atribuyéndole una serie de cargos (homicidio, incendio, extorsión, posesión de arma) que ninguna relación directa tenían con el origen de esos dineros. Esto por un lado pero, por otro, como bien lo refieren los impugnantes, para este tipo de delitos de relación era necesario que, por haberse iniciado un proceso en aquel país, dicho proceso hubiera fenecido con una sentencia condenatoria firme para generar un conocimiento, que no es potencial, probable, sino que debe ser cierto y actual. Entonces, se pregunta este Tribunal ...¿qué hubiera ocurrido si el juicio de Nombre01 se hubiera dado en forma paralela, o inmediatamente posterior, al momento en que el juez norteamericano Hurley excluyó los cargos de contrabando contra Nombre01 y antes de la decisión de la Corte de Apelaciones? De haberse procedido así, ese elemento habría generado la probabilidad razonable de duda en el dolo del encartado. Es más...¿si Nombre01 hubiera sido absuelto en Estados Unidos por esos hechos, podría mantenerse la afirmación de la sentencia de que bastaba su detención para que Nombre01 supiera el carácter ilícito de sus hechos? Es obvio que no . Lo que se quiere indicar es que, dependiendo de las etapas del proceso norteamericano en que se hubiera efectuado éste, la respuesta a la interrogante sobre el dolo del aquí imputado habría sido diferente, lo que no es razonable ni aceptable. No es legítimo, en consecuencia, dar una solución variable, según las etapas de un proceso extranjero, ante una misma cuestión (de si hay dolo del encartado). Eso hace inválida la "inferencia" del dolo que hace el Tribunal de un acto procesal (la detención de Nombre01) cuando él fue absuelto por la mayoría de los cargos; condenado por uno sin trascendencia causal con el flujo dinerario y por otro ampliamente discutido su caso en aquel país, ante autoridades jurisdiccionales que, inclusive, llegaron a exonerarlo, temporalmente, de responsabilidad. Por ende, es válido el alegato de error formulado por la defensa al considerar una serie conjunta de situaciones: a)- la transferencia desde hacía años; b)- el uso de instituciones bancarias de ambos países; c)- la declaración del origen de los bienes; d)- el no procesamiento previo de ninguna persona por tales hechos en Estados Unidos siendo Nombre01 el primer sentenciado por tal conducta; e)- la actividad pública y publicitada de la empresa de este ; f)- el tipo de giro, venta de cigarrillos de tabaco , que no es una actividad, per se, ilícita. Para este Tribunal, a partir de todos esos elementos, el encartado Nombre01 no tenía por qué saber que el dinero prevenía de un delito grave (que, ya vimos, que no era tal) y, aunque su error fuera vencible, no hay regulación paralela para hechos culposos de esa naturaleza en nuestro medio, por lo que, tratándose, efectivamente, como lo señala el defensor, de un error de tipo y no de uno de prohibición, la exclusión del dolo hacía atípico su comportamiento: “El desconocimiento o conocimiento defectuoso de algún hecho constitutivo de la infracción penal excluye el dolo, y origina un error de tipo. En el delito de blanqueo de capitales, la exclusión del dolo puede producirse como consecuencia de un desconocimiento o de un conocimiento defectuoso de la acción típica o del objeto material (…) Más problemática es la cuestión relativa al desconocimiento que recae sobre el objeto material, fundamentalmente porque la normativa penal relativa al blanqueo emplea elementos normativos en el tipo para describir los objetos idóneos (…) la doctrina no considera suficiente, a efectos del dolo típico, con conocer los datos configuradores del supuesto de hecho del elemento normativo. Se exige que el autor realice una valoración paralela en la esfera del profano que le permita entender el contenido del significado social del supuesto” (Cfr. Nombre15. El delito de blanqueo de capitales. Aranzadi, España, 2012, págs. 763 y 765). Hay que aclarar, en este tema, que el Tribunal de instancia valoró este alegato como si se tratara de un error de prohibición, al referir: "...la defensa técnica de don Nombre01 argumentó que él actuó bajo un error de prohibición porque no tenía modo de conocer que el dinero enviado estaba relacionado con una actividad ilícita. El Tribunal no puede admitir esta argumentación de la Defensa porque, de conformidad con lo que dispone el artículo 35 del Código Penal el error de derecho supone que el autor de la conducta crea -en virtud de un error invencible- que el hecho que realiza no está sujeto a pena. En este caso, luego de la detención de Nombre01 en los Estados Unidos, el dos de agosto de 2004, su hermano Nombre01 no actúa -al participar en la redención del Fondo de Crecimiento y la constitución de uno nuevo a su nombre y al mantener en sus cuentas de ahorro en dólares sumas de dinero por millones de dólares- siendo víctima de un error invencible, porque él conoce que la conducta diversa a la que había venido desarrollando Nombre01 -depositar los dineros ilícitos desde la cuenta de Nombre08 y mantener el fondo de Crecimiento en dólares a su nombre en el Banco de Costa Rica- cambia a partir del seis de agosto y el único origen del cambio es la detención de Nombre01 bajo cargos criminales diversos, entre los que se encuentra el contrabando de cigarrillos, con lo que don Nombre01 adquiere la certeza -que excluye el error invencible- de que todo el dinero remitido desde Nueva York, está vinculado a la actividad ilícita en perjuicio de la justicia estadounidense y que los actos posteriores a ese conocimiento tienen el propósito de sustraer de la posible inmovilización y/o incautación por parte de esas autoridades, del dinero proveniente del delito aludido y que no fue pagado al fisco estadounidense que dejó de percibir sumas millonarias por los impuestos que no fueron recaudados por Nombre01 en su negocio, según dijeron los testigos Nombre08 y Nombre19 en el Debate. Como consecuencia de los razonamientos expuestos se concluye que don Nombre01 no actuó bajo un error invencible en los términos del artículo 35 del Código Penal- porque el origen del dinero se revela indudablemente ilícito, para don Nombre01, a partir de la detención de Nombre01 el 2 de agosto de 2004, en los Estados Unidos" (cfr. folios 939-940, se suplen los destacados). Nótese, que, por una parte, se alude, nuevamente, a un dolo subsecuente: no por la recepción sino por mantener el dinero y hacer la redención del Fondo, que, adicionalmente, venía nutriéndose con dineros que, ya dijimos, no surgieron de una actividad que generara la doble incriminación hasta una fecha (2002) o el mismo Tribunal a quo afirmó que se recibieron sin dolo hasta otra data (02 de agosto de 2004) y que, en definitiva, no consta la cuota tributaria dejada de pagar. Pero, en lo que más interesa, el Tribunal partió de que el alegato concernía a un error de prohibición, lo que es un razonamiento equivocado porque lo que se alegó era que Nombre01 no sabía que los dineros provinieran de un ' delito grave ' y, siendo este, un concepto normativo del tipo, se estaba alegando desconocimiento de un elemento objetivo del tipo y, por ende, el alegato efectivamente correspondía a un error de tipo, en donde las consecuencias sobre la vencibilidad, o no, del error, bien sabemos, son diferentes. En todo caso, conviene reiterar la posición que esta Cámara, con una integración parcialmente similar a la actual (Nombre30 y Nombre31) ha esbozado en casos similares, en donde el tipo penal lo construye el legislador con elementos normativos jurídicos, supuestos en los que se ha indicado: "(1) Sobre la naturaleza del error invocado. En principio, no hay mayor confusión cuando se define el error de tipo como el que recae sobre los elementos objetivos del tipo penal ni cuando se alude al error de prohibición como el que se produce tanto cuando el agente desconoce la norma, la considera no vigente o la interpreta equivocadamente (directo) como cuando se equivoca sobre la existencia o límites de justificantes (error de permisión o de prohibición indirecto) (...) Lo que sí resulta necesario, es determinar la naturaleza del error involucrado cuando el tipo penal se construye de tal manera que, en sus elementos objetivos, introduce términos tales como "ilícitamente" "ilegítimamente" "ilegalmente" "antijurídicamente", etc. pues éstos términos se convierten, entonces, en elementos normativos de carácter jurídico que, al integrar el tipo penal, eventualmente harían que el error que se alegue sobre ellos sea, ya no uno de prohibición sino de tipo. Sobre el particular la doctrina refiere: ¬"...fue el propio Nombre32 quien se dio cuenta de la novedad que con carácter general planteaban los elementos normativos del tipo por él 'descubiertos'; dicho resumidamente: pese a ser componentes de la antijuridicidad, como no dejan de ser elementos del tipo, caerían, para este autor, bajo la regla del error sobre circunstancias del hecho (...) es decir, requerirían -al contrario que la antijuridicidad- ser abarcados por el dolo del sujeto, pues formarían parte del supuesto de hecho sobre el que recae el juicio valorativo de antijuridicidad, de modo que el error sobre un elemento normativo del tipo sería lo que hoy llamamos un error de tipo, o si se prefiere, con terminología más neutral, un error excluyente del dolo." Nombre33, Nombre12. El error sobre elementos normativos del tipo penal. La Ley, 1ª edición, Madrid, 2008, p. 42. Así entendido, el dolo del sujeto activo debe abarcar también ese elemento normativo-jurídico (...) Si, como se viene diciendo, las vicisitudes del permiso son elementos normativos del tipo, errores sobre los alcances de dicho permiso constituyen, entonces, errores de tipo. Es decir, en este caso concreto, el sujeto activo debe saber no sólo que no cuenta con permiso para la portación sino, además, tener claro que dicho permiso se necesita. Cualquier representación falsa sobre los alcances de aquellas situaciones en que no sea necesario ese permiso que es, justamente, lo que se plantea en el caso concreto, hacen que se esté ante un error de tipo. Por ello, el error invocado en este caso, no es un error de prohibición (que implicaría el desconocimiento general que portar un arma sea delito en Costa Rica, tema que no es el planteado) sino uno de tipo, es decir, la falsa suposición que alega el sujeto activo de que él no requería el permiso porque no portaba arma, sino que la transportaba (como distinguiera el armero), y que para hacer ésto último bastaba cumplir con los requisitos establecidos en la directriz emitida por el Ministerio de Seguridad Pública, transcrita infra." Tribunal de Casación Penal, voto número 2010-641, se suplen los destacados. Si en este asunto se alega que el encartado recibió el dinero desconociendo que provenía de un ‘delito grave’ y este es un elemento normativo-jurídico del tipo penal, el error alegado es de tipo, y no de prohibición, siendo relevante la distinción porque la vencibilidad del error, en el primer caso, excluye el delito si no existe, como no lo hay en este asunto, tipo culposo paralelo, en tanto que, en el segundo, solo disminuye la sanción. Entonces, la detención de Nombre01 en Estados Unidos el 02 de agosto de 2004 lo más que pudo producir era una alerta sobre la posibilidad de la ilicitud de la conducta de la que se originaban los fondos, probabilidad esa que no tiene la firmeza para ser certeza, habida cuenta de los elementos señalados atrás. Pero si, de lo que hasta aquí se ha señalado, pueden colegirse dudas importantes en cuanto a la configuración de un ‘delito grave’ (porque, por temas probatorios, se desconoce el monto de lo evadido en Estados Unidos respecto de lo trasladado; no se hizo un análisis financiero de lo recibido en cada período y, por la fecha de los hechos, muchos de los dineros trasladados lo fueron antes de la regulación aplicable a este asunto, a más del tema de la doble incriminación en cuanto a la pena mínima y la prescripción de la acción penal) como elemento precedente y, además, hay amplias y fundadas razones por las cuales poner en duda el conocimiento de ese objeto material del delito por parte del aquí encartado sucede, como si fuera poco, que el análisis del asunto no puede agotarse en tales aspectos, pues el tipo penal tantas veces citado contiene elementos subjetivos diferentes del dolo, que deben ser analizados enseguida.

§4. Otros elementos subjetivos del tipo, diferentes del dolo: "Al lado del elemento cognitivo debe existir en el delito de legitimación de capitales una voluntad de ocultar o encubrir el origen, la ubicación, etc. de los bienes que el agente sabe provenientes de un delito. Quien recibe, transfiere, convierte objetos que él sabe provenientes de un delito para ocultar o encubrir su ubicación, su destino, su propiedad, etc. actúa con el dolo de peligro requerido (...) El dolo debe extenderse a los elementos del tipo objetivo..." (Nombre14. El delito de legitimación de capitales. Editorial Jurídica Continental, San José, 2012, 1ª edición, págs. 127-128). ¿Se da eso en la especie? Mientras se recibió el dinero en el Banco de Costa Rica se declaró que provenía de esa venta de cigarrillos , al punto de que las autoridades bancarias nacionales visitaron la empresa y dieron un informe al respecto . Se dejó constancia de los traslados de fondos a la cuenta de Nombre01 y que este adquirió fincas o bienes a su nombre o de sociedades en donde es socio único o mayoritario . Inclusive, esos activos eran identificados con un sello que usaba Nombre01 y las personas que trabajaban para cada negocio u tilizaban un uniforme con su logo , según lo relataron, en juicio, Nombre34 y Nombre05 (ver folios 861 a 870) . Nombre01 , en Estados Unidos, declaró la existencia de tales bienes a los efectos de darlos en garantía como parte de la fianza por su libertad que estaba solicitando, como también consta en la prueba documental venida de ese país y en las declaraciones de sus oficiales gubernamentales que depusieron en el debate …entonces…¿hay afán de ocultar? En criterio de esta Cámara no, porque el rastro era fácilmente verificable, sin que se den los indicios que, ciertamente no de modo necesario, suelen presentarse en estos casos: “…la forma habitual de probar ese conocimiento es la prueba indiciaria (…) entre los que la jurisprudencia suele destacar una serie de actos irregulares o atípicos en el funcionamiento financiero o mercantil habitual, como el conocimiento de la utilización de identidades ficticias, la utilización de sociedades sin capacidad o sin actividad económica real, la inexistencia de actividad económica conocida, el incremento patrimonial injustificado, etc. Pero todos estos indicios no pueden prescindir de aquél o aquéllos que evidencien, siquiera vía indiciaria, la conexión causal entre los bienes…” (Cfr. Nombre11. Reflexiones técnicas y de política criminal sobre el delito de lavado de capitales. Cuadernos de Política Criminal Nº 91, 2007, págs. 5-26. También en el sitio web de la Universidad Externado de Colombia : www.revistas.uexternado.edu.co/index.php/derpen/article/.../98, pág. 81). Entonces, esta es una razón adicional para acoger las impugnaciones y modificar la sentencia venida en apelación.

§ 5 . Sobre el comiso: En cuanto al comiso , el Tribunal no hizo ninguna separación entre los dineros obtenidos ante la atipicidad de los hechos (2002) y los posteriores; entre los que, a juzgar por el criterio del a quo, se obtuvieron sin dolo, por ser anteriores a la detención de Nombre01 en 2004 y los posteriores; ni entre los frutos obtenidos con unos y con otros. Esto hubiera sido suficiente para que esa parte de lo resuelto no pudiera subsistir. En todo caso, habiéndose indicado atrás las múltiples razones por las que hay dudas fundadas de que los hechos sea Nombre09 típicos, tanto en lo objetivo como en lo subjetivo, dudas esas que no pueden subsanarse pues surgen del déficit probatorio de la Fiscalía , lo procedente es rechazar el comiso de todos los bienes , revocando la sentencia también en este extremo .

§ 6 . En resumen. Es válida la argumentación defensiva de que en este caso no se trató de dinero proveniente per se de una actividad ilícita, como lo sería de algún objeto prohibido; el objeto (venta de cigarrillos) no lo era sino, eventualmente, el no pago de los tributos. No obstante, en este asunto no resulta posible una condena porque: 1) no se da la doble incriminación, pues al hacer el encuadre a la legislación nacional, los hechos cometidos por Nombre01 (objeto material del que provenían) tenían pena mínima prevista inferior a Nombre01 uatro años, que era el monto que regía con la ley aplicable a este asunto; 2 ) Nombre01 no ha sido, aún, sentenciado en Estados Unidos, por lo que se ignora la pena concreta que se le puede imponer y si ésta encaja en la definición nacional de ‘delito grave’ según la referida ley nacional aplicable ; 3 ) no se individualizó el monto de la cuota tributaria dejada de pagar en cada año, en que varía el tipo penal, sin que pueda hacerse un cálculo acumulativo; 4 ) el encartado no tenía conocimiento de que el dinero provenía de un ' delito grave ' pues la actividad de origen de los fondos era lícita (venta de tabaco), aunque no lo fuera el pago de los tributos, aspecto sobre el que no hay prueba que el encartado conociera ; 5 ) tampoco fue su fin ocultar la actividad de la que procedía ; 6 ) no se analizó el tema de la prescripción de la acción penal en ambos países en función de los montos anuales recibidos . En síntesis, pese a que la sentencia de instancia es una pieza jurídica importante que, con esmero y exhaustividad, abordó el asunto que nos ocupa, este Tribunal no coincide co Nombre09 las conclusiones a las que llegó, ni avala la omisión de aspectos que resultan indispensables e inciden en el fondo de lo decidido, sin que demeriten la forma, desde que la sentencia sí contiene la motivación requerida para su validez y tales omisiones surgen desde la misma investigación fiscal, que no pueden ser suplidas con nueva prueba y que marcan la diferencia de criterio y resultado entre dicha decisión y esta. Empero, el esfuerzo objetivo del Tribunal (al punto de rechazar pretensiones fiscales y señalarle a ese órgano sus abusos, incluido el referente al despliegue policial para la detención del endilgado: ver folio 970), no es vano pues, a más de respetarse el criterio allí vertido, ha permitido a esta Cámara hacer pronunciamiento desde esta instancia, sin ordenar reenvío alguno , habida cuenta que los errores y omisiones señalados no pueden ser subsanados en instancia, pues ello requeriría nueva prueba o reabrir la investigación, lo que no es posible hacer ante un recurso interpuesto (en tales extremos) solo a favor del encartado (ver artículo 447 del Código Procesal Penal) pues ello violentaría el principio de prohibición de reforma en perjuicio . Por ello, deben acoger se ambas impugnaciones en los extremos referidos y lo que procede es revocar parcialmente la sentencia condenatoria decretada en autos, así como la decisión de comiso de bienes y, en su lugar, absolver de toda pena y responsabilidad a Nombre01 por el delito de legitimación de capitales que se le ha venido atribuyendo, ordenándose la plena restitución de los bienes decomisados, secuestrados o anotados, sobre los que se rechaza su comiso; así como su inmediata libertad y el cese de cualquier medida cautelar emitida en su contra, si otra causa no lo impide y se resuelve sin especial pronunciamiento en costas.

IV.- La fiscal del Ministerio Público, licenciada Natalia Sarkis Fernández, interpuso recurso de apelación de sentencia alegando, en sus tres acápites, la incorrecta exoneración de algunos bienes, de la medida del comiso. En el primer motivo señala que se violentó el artículo 110 del Código Penal y los numerales 83, 87, 93 y 94 de la Ley sobre Estupefacientes ya que se demostró que el encartado obtuvo bienes y constituyó sociedades a partir de agosto de 2004 para legitimar dineros provenientes de Nombre01 e ilegítimamente adquiridos por éste, pese a lo cual no se decretó el comiso de algunos de ellos por no haberse cumplido con el trámite formal de notificar a los personeros o a los agentes residentes de diversas sociedades. Cita extractos de la sentencia y considera equivocado no haber decretado dicha medida contra las fincas matrículas número […] a nombre de Nombre35.. Indica que si bien no se notificó al aquí encartado a título de representante de dicha empresa, el artículo 11 de la Ley de Notificaciones señala que se puede tener por notificado de haberse hecho sabedor del proceso y el aquí encartado se apersonó a los autos desde el 02 de junio de 2011, momento a partir del cual adquirió conocimiento de la totalidad del expediente, incluida la anotación sobre tales bienes, lo que fue reafirmado con la acusación, en la audiencia preliminar y en el debate por lo que, habiendo estado apersonado al proceso, pudo ejercer la defensa de sus intereses. Solicita ordenar el comiso de tales bienes a favor del Instituto Costarricense sobre Drogas. En el segundo motivo se alega, nuevamente, que fue incorrecta la decisión del Tribunal de instancia de no decretar el comiso de algunos bienes, esta vez, adquiridos por el encartado a título personal y consistentes en las fincas matrículas número […], al indicarse que si bien se demostró que el dinero para su adquisición provenía del delito cometido por Nombre01 y que se buscaba integrar y colocar en el sistema financiero costarricense para ocultar la actividad ilícita de su hermano, no se decretó el comiso al no haberse notificado a los acreedores hipotecarios de esos bienes para que hicieran valer sus derechos. Señala que, aunque no se hizo tal comunicación, eso no era motivo para que se excluyeran de dicha medida, porque los derechos de otros sobre ellos podían ser reclamados al margen de quién fuera el titular. Cita en apoyo de su tesis el voto número 1216-2005 de la Sala Tercera y el número 2011-1054 del Tribunal de Casación Penal de Goicoechea. Finalmente, en el tercer motivo se alega la incorrecta aplicación de las mismas disposiciones normativas relativas al comiso, esta vez de los dineros encontrados en la vivienda de Nombre01 […] durante el allanamiento, por un total de aproximadamente diecisiete millones de colones y diez mil dólares. Refiere que se tuvo por probado que todas las actividades comerciales del encartado tuvieron inicio a raíz de su actuar delictivo y que esos dineros, que estaban ocultos en su casa, eran las ganancias de los negocios comerciales que había emprendido, pues eran reportes de caja de una de las empresas y que, por un robo anterior, no dejaba en el negocio sino en su casa, pero el Tribunal no los comisó por no haberse incluido ese dinero en los hechos acusados y por ser aparentemente producto de las actividades comerciales de los negocios del encartado, lo que estima erróneo. Pide el comiso de ese dinero a favor del ICD. La defensa no contestó este recurso. Se rechaza la impugnación. Como ya se adelantó, para esta Cámara lo que procede es absolver al encartado de toda pena y responsabilidad por los hechos que se le han atribuido y, entonces, no hay ninguna base legal para ordenar el comiso de los bienes exentos de esa medida por el tribunal a quo, antes bien, debe levantarse dicha medida sobre los bienes sobre los que se ordenó, conforme se indicó en el acápite anterior. Sobre la naturaleza jurídica, características y principios que rigen la medida de comiso, esta Cámara, bajo el nombre de Tribunal de Casación Penal y con la integración actual, ha referido, por ejemplo en el voto número 2010-1009: “ ... lo primero que debe hacerse para determinar la naturaleza jurídica del comiso es establecer las características, efectos y supuestos en los que procede. Conforme al artículo 110 citado, el comiso requiere, para su procedencia: C.1) que se esté investigando un delito, no una falta o contravención, esto así porque el numeral inicia indicando "Todo delito" y esa expresión, en sentido restrictivo (artículo 2 del Código Procesal Penal) sólo puede entenderse como referido a los hechos calificados como tales por el legislador (Libro II del Código Penal o leyes especiales) quien hizo la distinción con las faltas que tienen una ubicación diversa en el cuerpo normativo (Libro III); C.2) que ese delito sea doloso. Esto no lo indica expresamente la norma, pero señala que lo que se pierde son los instrumentos con los que se cometió el ilícito y las cosas provenientes de su realización. Los autores de la materia, han referido, a nuestro modo de ver conforme a una interpretación restrictiva acorde con el principio de legalidad, que el carácter doloso de la medida se extrae de la previsión de "instrumentos" que contempla la ley, pues éstos: "...para la generalidad de la doctrina son los que se han empleado 'intencionalmente' para cometer el delito (...) con lo cual quedan excluidos, por supuesto, los (...) de un delito culposo" (Nombre36. Derecho penal. Parte general. Editorial Astrea, 3ª edición, Buenos Aires, pág. 519. En igual sentido: Nombre37, Eugenio Raúl; Nombre38, Nombre39 y Nombre40, Nombre39. Manual de derecho penal. Parte general. Ediar, Buenos Aires, 1ª edición, 2005, pág. 734; Nombre41. El comiso: análisis sistemático e instrumentación cautelar. Editorial Universidad del Rosario, 1ª edición, Bogotá, 2007, pág. 59 y 64 y otros citados en Nombre42. El comiso de bienes. IJSA, San José,1ª edición, 2006, págs. 70-73); C.3) resultaría aplicable, en principio, a cualquier delito doloso, por tratarse de un instituto regulado en la parte general del Código Penal, la cual se caracteriza, precisamente, por incidir en los tipos penales codificados o de leyes especiales; C.4) puede afectar a terceros siempre que se les dé parte en el proceso. Esto no lo establece la norma que, de interpretarse aisladamente, conduciría a que se obviara este requisito que dimana de una interpretación sistemática del ordenamiento jurídico y que coloca al Derecho de la Constitución como lo que es, sustento del resto de la jerarquía normativa (ver, al respecto, los votos número 712-2006 de la Sala Tercera y 637-2010 del Tribunal de Casación Penal de San José); C.5) el comiso no afecta los derechos del ofendido o de terceros de buena fe, sino que éstos predominan por sobre el interés estatal (en tal sentido, los votos del Tribunal de Casación Penal de San José, números 2000-76, 2000-323, 2003-383 y 2004-101 y los de la Sala Tercera, números 512-2001 y 1273-2005, entre otros); C.6) los efectos surgen del delito, por lo que normativamente se prevé que se dicte el comiso ante sentencia condenatoria (artículo 367 del Código Procesal Penal). ¿'Delito' ha de entenderse como hecho típico, antijurídico y culpable o como la estipulación abstracta de ilicitud referida por el legislador? La jurisprudencia nacional, en términos generales, lo ha entendido como previsión legislativa, sin declaración concreta de responsabilidad, al punto que ha previsto la posibilidad del comiso con desestimaciones, archivos fiscales, sentencias de sobreseimiento definitivo, aún por prescripción de la acción penal, absolutorias, con medidas alternas como conciliaciones, suspensiones del proceso a prueba, reparación integral del daño y pago de multa, entre otros (ver el recuento de votos que hace Nombre42. El comiso de bienes. IJSA, San José, 1° edición, 2006, págs. 230-263); C.7) carece de indemnización, pues surge ante una ilicitud previa, de modo que es una excepción a la imposibilidad estatal de asumir el dominio de la propiedad sin pagar el valor del bien (artículo 45 de la Constitución Política); C.8) es una medida de orden público, por lo que no se requiere instancia de parte sino que puede dictarse oficiosamente; C.9) como medida surgida del poder de imperio del Estado, requiere estar prevista en la ley (Sala Tercera, voto número 1217-1999), emitirse en forma motivada o fundamentada y habiendo existido demostración previa del vínculo o nexo entre el objeto y el hecho delictivo, por lo que no se trata de una responsabilidad objetiva (Sala Tercera, voto número 505-99); C.10) rigen principios como la presunción de inocencia, el debido proceso y el derecho de defensa, por lo que la carga probatoria le incumbe al Estado; C.11) en Costa Rica no se regula normativamente el comiso de los bienes usados en la fase preparatoria que no llega a ser ejecutiva; C.12) el destino de los bienes, una vez obtenido su dominio por el Estado, está expresamente fijado por ley (cfr.: Ley de distribución de bienes confiscados o caídos en comiso, su reglamento y manual). D) A partir de similares consideraciones en el derecho comparado se ha tratado de explicar la figura en comentario indicando que se trata de una pena accesoria, una medida de seguridad, una consecuencia civil del delito o bien una consecuencia jurídica sui géneris del delito (aquí se incluye a quienes la estiman tercera clase de sanción en el derecho penal junto con las penas y las medidas de seguridad pero, en realidad, sería una cuarta vía, pues ya la reparación se ha aceptado como la tercera). Analizaremos cada una de esas opciones: D.1) Comiso como pena accesoria: Se ha dicho que el comiso es una pena accesoria (en tal sentido los votos del Tribunal de Casación Penal de Cartago, números 2010-236 y 2010-265). No obstante, la principal crítica que se ha efectuado al otorgamiento de esta naturaleza jurídica es que el comiso no responde al fin esencial de la sanción aceptado por nuestro constituyente y legislador que es la prevención especial positiva o resocialización (artículos 51 del Código Penal y 5.6 de la Convención Americana sobre Derechos Humanos) en tanto se aviene más con funciones retributivas o de prevención general negativa (así lo acepta, incluso, el Tribunal de Casación Penal de Cartago en los votos números 2010-236 y 2010-265 al definirlo como una sanción penal accesoria con una finalidad de prevención general). El comiso tampoco respondería, desde esta perspectiva, al principio de culpabilidad que requiere no solo la culpabilidad para imponerse (es decir, no cabría imponer una sanción sin culpabilidad, por lo que no podría imponerse ante la inexistencia de pena principal ni ante supuestos en que el autor no es sancionado, aunque hubiese un injusto penal) sino que considera que esta es graduable, lo que choca con el carácter rígido de la figura. Asimismo, de ser pena, violentaría el principio referente a su carácter personalísimo ya que el comiso cabe aún contra terceros, siempre y cuando se les dé audiencia en el proceso respectivo y los bienes, con su consentimiento, hayan sido usados en la comisión de delitos (...) El comiso tampoco está previsto, como pena accesoria, en el artículo 50.2 del Código Penal, que regula como tales solo la inhabilitación especial definida en el numeral 58 ibídem como la privación o restricción de uno o más derechos. Esta objeción es tanto sistemática (en cuanto a la ubicación de la figura), como de cara a principios constitucionales, pues chocaría con el principio de legalidad al extralimitarse el catálogo de penas accesorias que expresamente contempla el Código Penal y las regulaciones que a ellas le son propias. Podría superarse la dificultad refiriendo que hay una ley previa que lo dispone para todos los delitos (artículo 110 del Código Penal); que hay otras normas especiales que lo señalan como penas (por ejemplo la Ley de conservación de la vida silvestre) y que la figura contempla la privación de un derecho: la propiedad. No obstante, el mismo numeral 58 del Código Penal refiere que las penas accesorias previstas como tales por el legislador tienen un plazo, que es el mismo de la inhabilitación absoluta y que va de 6 meses a 12 años (artículo 57), lo cual es incompatible con la pérdida de la titularidad del bien, que es definitiva. Asimismo, contra toda pena, principal o accesoria, cabe la posibilidad de plantear revisión, lo que la Sala Constitucional ha señalado como incompatible con la cosa juzgada que deriva del comiso (ver voto número 2001-8565). Por último, no debe olvidarse que conforme al artículo 110 del Código Penal: "...la ponderación del comiso se hará a partir de que estén satisfechas las responsabilidades civiles dimanantes del delito (...) indudablemente si el comiso mantuviera el carácter de pena no sería admisible que la imposición de la pena pendiera de la satisfacción de la responsabilidad civil." QUINTERO OLIVARES, Nombre43, Nombre44 y DE LLERA SUÁREZ-BÁRCENA, Nombre45. La responsabilidad civil ex delicto. Aranzadi, Navarra, 2002, págs. 45, 47. Entonces, o el comiso no es una pena accesoria o, si lo fuera, sería inconstitucional por violar los citados preceptos, por lo que se hace necesario evaluar otras posibilidades. D.2) El comiso como medida de seguridad: A partir de esos cuestionamientos, la doctrina señaló que, en realidad, no se trataba de que la medida fuera inconstitucional sino que no debía verse como una pena y, al intentar darle una explicación, se pensó que su naturaleza era la de ser una medida de seguridad, con lo que se superaba la objeción de que respondiera a un principio de culpabilidad pues este escapa a las medidas de seguridad cuyo fundamento es, más bien, la peligrosidad del sujeto activo. Comiso y medidas de seguridad tenían en común, además, el responder más a criterios de prevención especial asumidos en instrumentos internacionales que a los de prevención general. Pero nuevamente arreciaron las críticas. Primero, porque la peligrosidad en las medidas de seguridad surge ante la existencia de un injusto que puede no estar presente en el comiso, que se basa en una presunta peligrosidad objetiva de la cosa per se (en el caso de instrumentos usados para la comisión del delito y en particular de algunos tipos de ellos, como las armas). Además, porque esta explicación no sorteó el carácter personalísimo que también tienen las medidas de seguridad y que escapa a la figura del comiso (...) Además, en el derecho penal costarricense, la Sala Constitucional declaró inconstitucionales las medidas de seguridad para imputables, dejando solo las medidas de seguridad curativas (ver artículo 98 incisos 3,4 y 5 y votos números 88-92 y 1588-98 de la Sala Constitucional) y el comiso, la mayor parte de las veces, va anexo a una declaratoria de sanción de imputables y no es mencionado como medida de seguridad (artículos 101 y 102 del Código Penal) que también se rigen por el principio de tipicidad y la prohibición de creación por analogía (artículos 97 y 2 del Código Penal), a más de que tienen, también, la posibilidad de cese (artículos 100 del Código Penal y 478 del Código Procesal Penal) incompatible con el comiso. Ante ello, se planteó otra opción. D.3) El comiso como consecuencia civil o medida reparadora derivada del delito: aunque la Sala Constitucional se ha referido a la figura desde esta perspectiva (así en el voto número 2001-8565: "el comiso es una de las consecuencias civiles del hecho punible, junto con la restitución y la reparación e indemnización de daños y perjuicios"), lo que también ha aceptado alguna jurisprudencia de casación (ver, por ejemplo y entre otros, el voto número 787-2006 de la Sala Tercera), es lo cierto que, en forma técnica, el comiso no puede considerarse que sea una consecuencia civil. Primero porque, como se dijo, en Costa Rica se puede decretar oficiosamente, lo que es ajeno al principio dispositivo y de congruencia de lo civil. Segundo, porque no tiene carácter reparador, restitutivo o indemnizatorio, al punto que el artículo 103 del Código Penal lo enumera ajeno a esos fines, que son propios de las consecuencias derivadas de delito. Tercero porque "La responsabilidad civil ex delicto constituye una cuestión de naturaleza esencialmente civil, con independencia de que sea examinada en el proceso penal, lo que explica que no haya obstáculo a que su conocimiento sea diferido, en su caso, a la jurisdicción civil. Y si bien el delito, respecto del nacimiento de esta responsabilidad, es un presupuesto necesario, no lo es suficiente, pues se requiere además la producción de un daño, elemento imprescindible para el nacimiento de toda responsabilidad civil, se encuentre o no tipificado en el Código penal el hecho que lo ocasionó" (Nombre46. Análisis jurídico-penal de la figura del comiso. Editorial Comares, Granada, 2004, pág. 29), sin que sea posible plantear, en la vía civil, un reclamo aislado por comiso. Además, porque "La responsabilidad civil se trasmite a los herederos (...) pero eso no puede sostenerse igualmente respecto de los herederos del responsable del hecho. En los casos del fallecimiento del acusado o procesado sin que se haya llegado a acordar el comiso no es posible aplicar..." (QUINTERO OLIVARES, Nombre43, Nombre44 y DE LLERA SUÁREZ-BÁRCENA, Nombre45. La responsabilidad civil ex delictio. Aranzadi, Navarra, 2002, pág. 46). A ello agrega la doctrina nacional que sus efectos no son de derecho privado sino a favor del Estado, a pesar de que Costa Rica no siguiera las recomendaciones discutidas en la elaboración del Código Penal tipo para América Latina y colocara la figura dentro de las consecuencias civiles. Esto, como se dijo, no afecta su naturaleza jurídica real y lo que cabe derivar es que la disposición fue erróneamente ubicada, sin que eso incida sus efectos, concluyéndose que "el comiso no puede ser un efecto de las responsabilidad civil ex delicto, en su esencia no está el ser una sanción civil" (ABDELNOUR GRANADOS, Nombre03. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, pág. 376). A partir de estas reflexiones se planteó otra posibilidad. D.4) el comiso como un acto complejo, una consecuencia accesoria, jurídica, mixta o sui géneris del delito: Hay consecuencias derivadas del delito que lo son por disposición de ley, sin participar de la naturaleza de aquellas figuras. En el derecho costarricense se ubican como tales el tema de la condena en costas a la parte vencida (artículo 267 del Código Procesal Penal); la publicación de la sentencia en delitos contra el honor (artículo 155 del Código Penal); la reconstrucción, supresión, reforma, restitución o rectificación registral derivada de la falsedad de instrumentos públicos (artículo 483 del Código Procesal Penal); la inscripción de cierto tipo de resoluciones (artículos 30 incisos Nombre05 y k, 25 párrafo primero, 36 párrafos noveno y décimo del Código Procesal Penal y Ley del Registro y Archivo Judiciales) y el comiso. Así se ha regulado en países como Alemania y España y lo acepta la mayoría de la doctrina, aunque sin concordar sobre el nombre idóneo a usar, pero dejando claro que no participa de las características de los institutos señalados en acápites anteriores: ¬"...Nombre47 critica las posiciones unitarias (...) señalando que (...) el comiso es un fenómeno de naturaleza compleja con un alcance funcional muy amplio, pues no solamente cumple tarea de pena, sino también las de restitución, compensación, policivas y de aseguramiento, e inclusive procesales de tipo probatorio y cautelar (...) En el mismo sentido, Nombre48 y Nombre49 son del parecer de la naturaleza compleja del comiso (...) Nombre50 (...) González Navarro plantea el carácter mixto de la institución (...) En contraste con las penas o las medidas de seguridad, las consecuencias accesorias son actos coercitivos o sanciones de naturaleza propia, vinculados legalmente a la imposición de una pena por un delito o falta dolosos o pueden vincularse con ella mediante el pronunciamiento judicial en determinados casos. Así, la ubicación del comiso (...) como consecuencia accesoria implica que su fundamento no es la culpabilidad ni la peligrosidad del sujeto activo del delito." Nombre41, Nombre41. El comiso: análisis sistemático e instrumentación cautelar. Editorial Universidad del Rosario, 1ª edición, Bogotá, 2007, págs. 59-60 y 62. Inclusive, nuestra legislación surge del Código Penal tipo para América Latina, en donde se discutió ampliamente el tema de la naturaleza jurídica y correcta ubicación del comiso: "Finalmente privó la opinión de situar el comiso con un carácter penal, más no como una pena, y fuera de las consecuencias civiles del hecho punible, desechándose la idea de este fenómeno como una medida de carácter procesal (...) Uno de los acuerdos de la Cuarta Reunión Plenaria celebrada en Caracas, Venezuela del 20 al 30 de enero de 1969, el N° 89, fue el de incluir un texto sobre el comiso, pero en el entendido de que no tenía el carácter de pena ni de efecto de la responsabilidad civil (...) ¿Por qué entonces a la hora de ordenar la normativa de ese Código se incluyó (...) el comiso bajo el Título (...) relativo a la 'Responsabilidad civil derivada del delito'? (Nombre51, Nombre03. La responsabilidad civil derivada del hecho punible. Editorial Juricentro, San José, 1984, págs. 369-370). G) Dicho lo anterior, este Tribunal estima que, en efecto, el comiso costarricense es, simplemente, una consecuencia señalada por el legislador para el delito (para cierto tipo de delitos, según se dijo y retomará) que, aunque tiene rasgos penales (legalidad, carga de la prueba, inocencia, nexo con el hecho), civiles (procede contra terceros) y administrativos (coercitividad y oficiosidad estatal), no se ajusta con precisión a ninguno de ellos y, por eso, no le pueden ser aplicables principios propios de la pena (como la culpabilidad o temporalidad), de las medidas de seguridad (como la personalidad) o de la reparación (como el dispositivo). De allí que resulte válido que el legislador lo regule para aplicarse oficiosamente, estableciendo la pérdida de titularidad como definitiva, etc. No obstante, ello no significa que, como medida privativa de derechos que al fin y al cabo es, no esté sometida a principios como el de legalidad y de proporcionalidad que son propios, inclusive, de cualquier materia sancionatoria, inclusive en el área del derecho administrativo, por ser los únicos limitadores del poder de imperio del Estado, tal y como se abordará con mayor detalle enseguida” (se suplen los destacados). En el presente caso , no hay ningún hecho típico, antijurídico y culpable para decretar tal medida, ni, tampoco, puede deducirse alguna base fáctica o jurídica para estimar que los bienes muebles o inmuebles del encartado deban recibir dicha medida, pues no solo no se ha demostrado la existencia de ningún delito (penal), sino que tampoco han estado en discusión deudas o ilícitos civiles o administrativos, o el incumplimiento de normativa de cualquier otra índole, para tomar dicha decisión. Por ello, no es necesario ahondar en el recurso fiscal que presupone la ilicitud de la conducta, que esta Cámara no comparte según las razones ampliamente esbozadas atrás.

POR TANTO:

Se declara con lugar el recurso interpuesto por el encartado a título personal y con el patrocinio letrado del licenciado Juan José Picado Herrera y parcialmente con lugar el incoado por su defensor particular Carlos Luis Ibarra García. Se declara sin lugar el recurso fiscal. En consecuencia, se revoca la sentencia condenatoria decretada en autos, así como la decisión de comiso de bienes decretada y, en su lugar, se ABSUELVE de toda pena y responsabilidad a Nombre01 por el delito de LEGITIMACIÓN DE CAPITALES que se le ha venido atribuyendo, ordenándose la plena restitución de los bienes decomisados, secuestrados o anotados, sobre los que se rechaza su comiso; su inmediata libertad y el cese de cualquier medida cautelar emitida en su contra, si otra causa no lo impide. Se resuelve sin especial condena en costas. En lo demás, es decir, en cuanto la sentencia rechaza comisos adicionales, ordena levantamiento de medidas cautelares y devolución de otros bienes y expedientes, se mantiene incólume lo decidido. NOTIFÍQUESE.

Rosaura Chinchilla Calderón Lilliana García Vargas Edwin Salinas Durán Juezas y juez Contra : Nombre01 Delito : Legitimación de capitales Ofendido : Sistema financiero y otros