Appeal in ICE-Alcatel Case: Conviction Overturned Due to Illicit Evidence and Unreliable Cooperating DefendantApelación en Caso ICE-Alcatel: Anulación de Condena por Prueba Ilícita y Falta de Credibilidad del Imputado Colaborador

JUDICIAL BRANCH CRIMINAL JUDGMENT APPEALS COURT Decision: 2012-2550 Case: 04-006835-0647-PE (9) CRIMINAL JUDGMENT APPEALS COURT, Second Judicial Circuit of San José. Goicoechea, at thirteen hundred hours on the twenty-first day of December, two thousand twelve.

APPEALS ON POINTS OF LAW (RECURSOS DE CASACIÓN) AND APPEALS (RECURSOS DE APELACIÓN) filed in the present proceedings brought against [Nombre001], of legal age, divorced, Costa Rican, identity card [Valor001], an agricultural producer by occupation, born on [Valor002], child of [Nombre002] and [Nombre003]; [Nombre004], of legal age, single, Costa Rican, identity card [Valor003], engaged in genealogy and history studies, born on [Valor004], child of [Nombre005] and [Nombre006], resident of [...]; [Nombre007], of legal age, married, Costa Rican, identity card [Valor005], an electrician by occupation, born on [Valor006], child of [Nombre008], resident of [...]; [Nombre009], of legal age, married, Costa Rican, identity card [Valor007], an attorney and notary by occupation, born on [Valor008], child of [Nombre010] and [Nombre011], resident of [...]; [Nombre012], of legal age, married, Costa Rican, identity card [Valor009], an attorney, economist, professor, and writer by occupation, born on [Valor010], child of [Nombre013] and [Nombre014], resident of [...]; [Nombre015], of legal age, married, Costa Rican, identity card number [Valor011], an electrical engineer by occupation, born on [Valor012], child of [Nombre016] and [Nombre017], resident of [...]; [Nombre018], who was of legal age, married, Costa Rican, identity card [Valor013], a businessperson by occupation, born on [Valor014], child of [Nombre019] and [Nombre020]; [Nombre021], of legal age, married, identity card [Valor015], a pediatric neonatologist by occupation, born on [Valor016], child of [Nombre022] and [Nombre023], resident of [...]; for the offenses of LIABILITY OF THE BRIBE-GIVER FOR AGGRAVATED CORRUPTION IN THE FORM OF PASSIVE IMPROPER BRIBERY (PENALIDAD DEL CORRUPTOR POR CORRUPCIÓN AGRAVADA EN LA MODALIDAD DE COHECHO IMPROPIO), AGGRAVATED CORRUPTION IN THE FORM OF PASSIVE IMPROPER BRIBERY (CORRUPCIÓN AGRAVADA EN SU MODALIDAD DE COHECHO IMPROPIO), SHAM TRANSACTION FRAUD (FRAUDE DE SIMULACIÓN), ILLICIT ENRICHMENT (ENRIQUECIMIENTO ILÍCITO), AND RECEIVING STOLEN PROPERTY (RECEPTACIÓN), to the detriment of the DUTIES OF PUBLIC OFFICE (DEBERES DE LA FUNCIÓN PÚBLICA), INSTITUTO COSTARRICENSE DE ELECTRICIDAD, AND COLLECTIVE AND DIFFUSE INTERESTS (INTERESES COLECTIVOS Y DIFUSOS).

Judges Alfredo Chirino Sánchez and Jorge Luis Arce Víquez and Judge Sandra Zúñiga Morales participated in deciding the appeal. The following entered appearances before this Court: Dr. [Nombre012], together with his defense attorneys Rafael Gairaud Salazar and Cristian Arguedas Arguedas; attorney Hugo Santamaría Lamicq, as defense counsel for Mr. [Nombre018]; attorney Mario Gonzalo Soto Baltodano, as President vested with the powers of an unlimited general attorney-in-fact (Apoderado Generalísimo sin Límite de suma) of the company Juriso S.A.; attorneys Wilson Flores Fallas and Nazira Merayo Arias, as defense counsel for Mr. [Nombre007]; attorney Mario Navarro Arias, as defense counsel for Mr. [Nombre009] and special judicial attorney-in-fact (Apoderado Especial Judicial) for the companies Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A., La Selva de la Marina S.A., and Servicios Notariales QC S.A.; attorney José Miguel Villalobos Umaña, as defense counsel for Mr. [Nombre021]; Messrs. [Nombre001], [Nombre009], [Nombre015], and [Nombre021], in a filing authenticated by attorney José Miguel Villalobos Umaña; attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, as special judicial attorneys-in-fact for Alcatel-Lucent France (formerly Alcatel Cit); attorneys Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, as representatives of the Procuraduría General de la República; attorney Juan Luis Vargas Vargas, as special judicial attorney-in-fact for Mr. [Nombre001], who is the President vested with the powers of an unlimited general attorney-in-fact of the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; attorney Yamura Valenciano Jiménez, as defense counsel for Messrs. [Nombre001] and [Nombre004]; attorneys Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Ministerio Público; attorneys Federico Morales Herrera and Erick Ramos Fallas, as defense counsel for Mr. [Nombre015]; and attorney Germán Calderón Lobo, as representative of the Instituto Costarricense de Electricidad.

BACKGROUND (RESULTANDO):

I.By judgment number 167-2011, issued at fifteen hundred hours on the twenty-seventh day of April, two thousand eleven, the Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José ruled: “THEREFORE (POR TANTO): Pursuant to Articles 39 and 41 of the Constitución Política; 1, 30, 31, 45, 46, 50, 51, 57, 59 to 63, 71, 74, 76, 110, 216, 218, 323, 325, 340, 341, 342, 345, 346, and 358 of the Código Penal; the currently applicable rules on civil liability under the Código Penal de 1941; 152 of the Ley Orgánica del Poder Judicial; 1, 9, 42, 238, 239, 240, 258, 265, 360, 361, 363, 364, 365, 366, 367, 368, 378, and 483 of the Código Procesal Penal; and 221 and 277 of the Código Procesal Civil, it is hereby ruled:

• A)Reclassification of offenses and incidental matters:

A.1) Reclassif i cation of offenses: [sic] By unanimous decision, the conduct charged against [Nombre021] is reclassified from aggravated corruption arising from passive improper bribery to illicit enrichment; likewise, the conduct attributed to [Nombre024], which the prosecution deemed to constitute illicit enrichment, is reclassified as receiving stolen property under Article 323 of the Código Penal. By majority decision, with Associate Judge Camacho Morales dissenting, the three offenses of illicit enrichment in a real concurrence of offenses (concurso material) attributed to [Nombre007] are reclassified as one offense of illicit enrichment.

A.2) Statute-of-limitations defenses (excepciones de prescripción): By unanimous decision, the defense that the criminal action is time-barred (prescripción de la acción penal), raised on behalf of defendant [Nombre024] in connection with the offenses of receiving stolen property and accessory after the fact involving property (Favorecimiento Real) under Articles 323 and 325 of the Código Penal, is granted, and the defense that the criminal action is time-barred, raised on behalf of [Nombre007] with respect to one offense of illicit enrichment, as reclassified, is denied.

A.3) By majority decision, with Associate Judge Camacho Morales dissenting, the statute-of-limitations defenses are denied with respect to four offenses of illicit enrichment charged against [Nombre012] and one offense of illicit enrichment charged against [Nombre021], as reclassified.

A.4) By unanimous decision, the res judicata defense (excepción de cosa juzgada) raised on behalf of the accused [Nombre021] is denied.

A.5) By majority decision, with Associate Judge Camacho Morales dissenting, the objection based on defective procedural activity (protesta por actividad procesal defectuosa), raised in defense of defendant [Nombre021] and requested to be extended to the remaining defendants with respect to the banking evidence alleged to be unlawful and obtained in separate criminal proceedings, is denied.

A.6) By majority decision, with Associate Judge Camacho Morales dissenting, the remaining objections, incidental motions, and defenses relating to the charged offenses and raised by the parties are denied.

• B)Acquittals and criminal liability of the defendants:

B.1) By unanimous decision, because the criminal action is time-barred, [Nombre024] is acquitted of all punishment and liability for the offense of RECEIVING STOLEN PROPERTY, as reclassified, and ACCESSORY AFTER THE FACT INVOLVING PROPERTY, both to the detriment of the ADMINISTRATION OF JUSTICE (ADMISTRACIÓN DE JUSTICIA); and [Nombre015] is acquitted, on the ground that the conduct does not constitute a criminal offense (atipicidad), of one offense of LIABILITY OF THE BRIBE-GIVER in connection with the offense of AGGRAVATED CORRUPTION through PASSIVE IMPROPER BRIBERY attributed to [Nombre021] and reclassified as ILLICIT ENRICHMENT, to the detriment of INTEGRITY IN PUBLIC OFFICE (PROBIDAD EN LA FUNCIÓN PÚBLICA). Likewise, by unanimous decision and pursuant to the in dubio pro reo principle, [Nombre012] is acquitted of all punishment and liability for four offenses of ILLICIT ENRICHMENT, to the detriment of INTEGRITY IN PUBLIC OFFICE, and [Nombre001] is acquitted of one offense of SHAM TRANSACTION FRAUD in connection with the transfer of the property registered under Record No. [Valor017], Subrecord [Valor018], by deed No. [Valor019] executed before notary public [Nombre025], to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and COLLECTIVE AND DIFFUSE INTERESTS.

B.2) By majority decision, with Associate Judge Camacho Morales dissenting, [Nombre015] is found criminally liable as a co-perpetrator of four offenses of LIABILITY OF THE BRIBE-GIVER for AGGRAVATED CORRUPTION in the form of PASSIVE IMPROPER BRIBERY, in a real concurrence of offenses, in connection with [Nombre004], [Nombre001], [Nombre026], and [Nombre027], to the detriment of INTEGRITY IN PUBLIC OFFICE, and is sentenced to FIVE YEARS’ IMPRISONMENT for each offense, for a total of TWENTY YEARS’ IMPRISONMENT, which, pursuant to the rules governing a real concurrence of offenses, is reduced to FIFTEEN YEARS’ IMPRISONMENT. That sentence shall be served at the place and in the manner prescribed by the applicable prison regulations, after crediting the pretrial detention served. The absolute disqualification (inhabilitación absoluta) requested by the prosecution is denied because the statutory requirements for its imposition have not been met.

B.3) By majority decision, with Associate Judge Camacho Morales dissenting, [Nombre009] is found criminally liable as a co-perpetrator of three offenses of LIABILITY OF THE BRIBE-GIVER for AGGRAVATED CORRUPTION in the form of PASSIVE IMPROPER BRIBERY in connection with [Nombre004], [Nombre001], and [Nombre026], to the detriment of INTEGRITY IN PUBLIC OFFICE, and is sentenced to FIVE YEARS’ IMPRISONMENT for each offense, for a total of FIFTEEN YEARS’ IMPRISONMENT. That sentence shall be served at the place and in the manner prescribed by the applicable prison regulations, after crediting the pretrial detention served. The absolute disqualification requested by the prosecution is denied because the statutory requirements for its imposition have not been met.

B.4) By majority decision, with Associate Judge Camacho Morales dissenting, [Nombre018] is found criminally liable as a co-perpetrator of one offense of LIABILITY OF THE BRIBE-GIVER for AGGRAVATED CORRUPTION in the form of PASSIVE IMPROPER BRIBERY with respect to [Nombre027], and criminally liable as the perpetrator of one offense of LIABILITY OF THE BRIBE-GIVER for ACTIVE BRIBERY (COHECHO PROPIO) in connection with [Nombre026], both to the detriment of INTEGRITY IN PUBLIC OFFICE, and is sentenced to FIVE YEARS’ IMPRISONMENT for the first offense and FIVE YEARS’ IMPRISONMENT for the second, for a total of TEN YEARS’ IMPRISONMENT. That sentence shall be served at the place and in the manner prescribed by the applicable prison regulations, after crediting any pretrial detention served. The absolute disqualification requested by the prosecution is denied because the statutory requirements for its imposition have not been met.

B.5) By majority decision, with Associate Judge Camacho Morales dissenting, [Nombre004] is found criminally liable as the perpetrator of the offense of AGGRAVATED CORRUPTION in the form of PASSIVE IMPROPER BRIBERY, to the detriment of INTEGRITY IN PUBLIC OFFICE, and is sentenced to FIVE YEARS’ IMPRISONMENT, to be served at the place and in the manner prescribed by the applicable prison regulations, after crediting the pretrial detention served. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public employment, offices, or appointments.

B.6) By majority vote, with Associate Judge Camacho Morales dissenting, [Nombre001] is found guilty as a principal of one count of AGGRAVATED CORRUPTION, in the form of PASSIVE IMPROPER BRIBERY (COHECHO IMPROPIO), to the detriment of PROBITY IN PUBLIC OFFICE, and one count of FRAUDULENT SHAM TRANSACTION (FRAUDE DE SIMULACIÓN) concerning the vehicles transferred by means of deed N° [Valor020] before Notary Public [Nombre028], to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and COLLECTIVE AND DIFFUSE INTERESTS, and is sentenced to FIVE YEARS’ IMPRISONMENT and TEN YEARS’ IMPRISONMENT, respectively, for a total of FIFTEEN YEARS’ IMPRISONMENT, to be served at the place and in the manner established by the applicable prison regulations, after deduction of any time served in pretrial detention. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public employment, office, or appointments.

B.7) By majority vote, with Associate Judge Camacho Morales dissenting, [Nombre007] is found guilty as a principal of one count of ILLICIT ENRICHMENT, as reclassified, committed to the detriment of PROBITY IN PUBLIC OFFICE, and is sentenced to TWO YEARS’ IMPRISONMENT, to be served at the place and in the manner established by the applicable prison regulations, with credit for time served in pretrial detention. He is likewise disqualified for a period of TWELVE YEARS from obtaining and holding public employment, office, or appointments. Because the statutory requirements have been met, he is granted the BENEFIT OF SUSPENDED EXECUTION (BENEFICIO DE EJECUCIÓN CONDICIONAL) of the custodial sentence for a probationary period of five years, during which he must not commit any intentional offense for which he is sentenced to a term of imprisonment of six months or more; otherwise, this benefit shall be revoked.

B.8) By majority vote, with Associate Judge Camacho Morales dissenting, [Nombre012] is found guilty as an instigator of the offense of AGGRAVATED CORRUPTION, in the form of PASSIVE IMPROPER BRIBERY, to the detriment of PROBITY IN PUBLIC OFFICE, and is sentenced to FIVE YEARS’ IMPRISONMENT, to be served at the place and in the manner established by the applicable prison regulations, after deduction of time served in pretrial detention. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public employment, office, or appointments.

B.9) By majority vote, with Associate Judge Camacho Morales dissenting, [Nombre021] is found guilty as a principal of one count of ILLICIT ENRICHMENT, as reclassified, committed to the detriment of PROBITY IN PUBLIC OFFICE, and is sentenced to TWO YEARS’ IMPRISONMENT, to be served at the place and in the manner established by the applicable prison regulations, with credit for time served in pretrial detention, without finding that the statutory requirements for entitlement to the benefit of suspended execution of that sentence have been met. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public employment, office, or appointments.

• C)Civil matters:

C.1) Unanimously, with respect to the CIVIL CLAIM FOR DAMAGES (ACCIÓN CIVIL RESARCITORIA) filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD:

C.1.1) The civil claim brought by that institution against [Nombre015] is deemed withdrawn; [Nombre015] expressly waived any award of costs against the civil plaintiff.

C.1.2) No ruling is issued on the merits of the rights at issue in connection with the civil claims filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the civil defendants [Nombre009], [Nombre004], [Nombre012], [Nombre024], [Nombre021], [Nombre001], [Nombre007], SERVICIOS NOTARIALES QC S.A., and ALCATEL CIT.

C.1.3) The civil claim brought by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the aforementioned defendants is resolved without any special award of either attorney fees or litigation costs.

C.1.4) Once the judgment becomes final, the attachments (embargos) ordered in favor of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD in connection with the aforementioned civil claims shall be lifted.

C.1.5) The request for an award of damages caused by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD through the attachments imposed to secure the outcome of these proceedings is denied.

C.2) Unanimously, with respect to the CIVIL CLAIM FOR DAMAGES brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA:

C.2.1) No ruling is issued on the merits of the rights at issue in connection with the civil claims brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA against the civil defendants [Nombre015], [Nombre009], [Nombre004], [Nombre012], [Nombre024], [Nombre021], [Nombre001], [Nombre018], [Nombre007], SERVICIOS NOTARIALES QC S.A., PUNTO DE NEGOCIOS L.Q.C. S.A., SELVA DE LA MARINA S.A., QUÁNTICA S.A., GAMBUSINOS S.A., and FINCA SALITRAL S.A..

C.2.2) The civil claim brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA against the aforementioned civil defendants is resolved without any special award of either attorney fees or litigation costs.

C.2.3) Once the judgment becomes final, the attachments ordered in favor of the PROCURADURÍA GENERAL DE LA REPÚBLICA in connection with the civil claims filed shall be lifted.

C.2.4) The request for an award of damages caused by the PROCURADURÍA GENERAL DE LA REPÚBLICA through the attachments imposed to secure the outcome of these proceedings is denied.

• D)Forfeiture (comiso) and declaration of documentary falsity (declaratoria de falsedad instrumental): By majority vote, with Associate Judge Camacho Morales dissenting, the following property is ordered forfeited to the State:

D.1) The properties registered with the Registro Público de la Propiedad: Guanacaste District, under the Real Folio system, Property Registration N° [Valor021], Subregistration [Valor018]; [...] District, under the Real Folio system, Property Registration N° [Valor022], Subregistration [Valor018]; [...] District, under the Real Folio system, Property Registration N° [Valor023], Subregistration [Valor024]; and [...] District, registered under the Real Folio system, Property Registration N° [Valor025], Subregistration [Valor018].

D.2) Investment Certificate N° [Valor026], which was renewed as certificate N° [Valor027] in the amount of five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five céntimos, in the name of the Procuraduría General de la República.

D.3) The sums of fifty-eight thousand dollars and eighty-one thousand four hundred dollars, constituting the funds underlying check N° [Valor028] from Banco Interfin and check N° [Valor029] from Bank of New York Delaware, both made payable to [Nombre026] and deposited subject to the order of this Court.

D.4) [Nombre009]’s shares in La Selva de La Marina S.A., which owns, among other assets, the properties registered in the Registro Público under the Real Folio system as Property Registration N° [Valor030], Subregistration [Valor018], and Property Registration N° [Valor031], Subregistration [Valor018].

D.5) The Suzuki Grand Vitara XL vehicle, license plate N° [Valor032], and the Suzuki Jimny vehicle, license plate N° [Valor033].

D.6) Public deed N° [Valor020], executed by [Nombre001] and [Nombre029] before Notary Public [Nombre028], is declared to constitute documentary falsity; accordingly, the transfer of property effected through that instrument by the convicted persons [Nombre068] shall be nullified, and the corresponding registry corrections shall be made.

• E)Precautionary measures (medidas cautelares):

E.1) Pretrial detention (prisión preventiva): By majority vote, with Associate Judge Camacho Morales dissenting, the Prosecution’s request is granted and pretrial detention is ordered for [Nombre009] and [Nombre001] for a period of eighteen months, calculated from veintisiete de abril de dos mil once through veintisiete de octubre de dos mil doce, and for [Nombre015] for a period of twelve months, calculated from veintisiete de abril de dos mil once through veintisiete de abril de dos mil doce. This is due to the change in the status of defendants [Nombre015], [Nombre009], and [Nombre001] in these proceedings, as well as the nature and length of the sentence imposed on each of them, which constitutes sufficient grounds to conclude that, if at liberty, each would seek viable means to evade criminal responsibility and frustrate the purposes of the Administration of Justice, whose protection and foundation are constitutional in nature.

E.2) Substitute measures (medidas supletorias): By majority vote, with Associate Judge Camacho Morales dissenting, at the request of the Ministerio Público’s representative, the convicted persons [Nombre004], [Nombre012], [Nombre018], and [Nombre021] are subjected to the following precautionary measures in lieu of pretrial detention: a prohibition on leaving the country from veintisiete de abril de dos mil once until the judgment becomes final, for which purpose each convicted person shall deposit his passport at this Court within twenty-four hours after this ruling is issued; and the obligation to appear before this Court on the twenty-seventh day of each month, or on the next business day when that date falls on a non-business day, for which purpose a register shall be maintained in which they must affix their signatures as proof of appearance. The measures described shall remain in effect from the reading of the operative portion of the judgment until the judgment becomes final, with the warning that failure to comply with the established conditions or the aforementioned substitute precautionary measures may result in the imposition of the pretrial detention that is presently being withheld.

• F)Other relevant matters:

F.1) Costs of the proceedings: Unanimously, the expenses of the criminal proceedings shall be borne by the State.

F.2) Attorney fees: Unanimously, the costs of the proceedings relating to the prosecution of the criminal action shall be borne by the defendants. Given the established financial solvency of the convicted persons [Nombre004], [Nombre001], [Nombre018], and [Nombre007], who elected to receive legal representation from attorneys of the Defensa Pública del Poder Judicial, pursuant to Articles 152 of the Ley Orgánica del Poder Judicial and 265 of the Código Procesal Penal, each shall pay the fees of the professionals who assisted them during these proceedings. Those fees are fixed at TEN MILLION COLONES, covering the attorneys’ professional services from their first appearance through the issuance of this judgment, but not any appeals or other proceedings that may be required after its issuance. Each defendant shall pay that amount to the Poder Judicial within fifteen days after the judgment becomes final, failing which their property shall be attached and sold at judicial auction.

F.3) Communications: by majority vote, with Associate Judge Camacho Morales dissenting, issue the communications pertaining to the travel ban (impedimento de salida) imposed on [Nombre004], [Nombre018], [Nombre012], and [Nombre021] to the Dirección General de Migración y Extranjería. Once this judgment becomes final, the requisite official communications shall be forwarded to the Tribunal Supremo de Elecciones regarding the absolute disqualification (inhabilitación absoluta) of [Nombre004], [Nombre012], [Nombre021], [Nombre001], and [Nombre007] from holding elective public office, and to the Servicio Civil regarding their absolute disqualification from appointment to all other public employment, offices, and commissions. Notify the Registro Público de la Propiedad of the documentary falsity (falsedad instrumental) declared with respect to the deed executed before notary public [Nombre028]. Forward the communications to the Instituto Nacional de Criminología, the Juzgado de Ejecución de la Pena, and the Registro Judicial so that they may proceed within the scope of their respective authority. NOTICE SHALL BE GIVEN.-” (sic.).

II.That appeals in cassation (recursos de casación), recharacterized as appeals (recursos de apelación), were filed against the foregoing ruling by: Dr. [Nombre012], together with his defense counsel, attorneys Rafael Gairaud Salazar and Cristian Arguedas Arguedas; attorney Hugo Santamaría Lamicq, as counsel for Mr. [Nombre018]; attorney Mario Gonzalo Soto Baltodano, as President with general power of attorney without limitation as to amount (Apoderado Generalísimo sin Límite de suma) of the company known as Juriso S.A.; attorneys Wilson Flores Fallas and Nazira Merayo Arias, as counsel for Mr. [Nombre007]; attorney Mario Navarro Arias, as counsel for Mr. [Nombre009] and special judicial attorney-in-fact (Apoderado Especial Judicial) for Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A., La Selva de la Marina S.A., and Servicios Notariales QC S.A.; attorney José Miguel Villalobos Umaña, as counsel for Mr. [Nombre021]; [Nombre001], [Nombre009], [Nombre015], and [Nombre021], in a filing authenticated by attorney José Miguel Villalobos Umaña; attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, as special judicial attorneys-in-fact for Alcatel-Lucent France (formerly Alcatel Cit); attorneys Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, as representatives of the Procuraduría General de la República; attorney Juan Luis Vargas Vargas, as special judicial attorney-in-fact for Mr. [Nombre001], who is President with general power of attorney without limitation as to amount of the company known as Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; attorney Yamura Valenciano Jiménez, as counsel for [Nombre001] and [Nombre004]; attorneys Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Ministerio Público; and attorneys Federico Morales Herrera and Erick Ramos Fallas, as counsel for Mr. [Nombre015].

III.That, after conducting the corresponding deliberation in accordance with Article 465 of the Código de Procesal Penal, the Court considered the issues raised in the appeal.

IV. That the pertinent legal requirements have been observed throughout the proceedings

The judgment was drafted by Criminal Judgment Appeals Judge Chirino Sánchez; and,

WHEREAS:

I. APPEAL BY DR

[Nombre012]. Mr. [Nombre012], in exercising his personal defense (defensa material), challenged judgment N° 167-2011, issued by the Tribunal Penal de la Hacienda y la Función Pública del Segundo Circuito Judicial de San José at 15:00 hours on 27 de abril de 2011, which found him criminally responsible as a principal for the offense of “Instigation of the offense of aggravated corruption in the form of improper bribery (Cohecho impropio),” to the detriment of Probity in Public Service, sentencing him to five years’ imprisonment and twelve years’ disqualification from obtaining and holding public employment, offices, or appointments. The accused [Nombre012] expressed his disagreement with the conviction through successive filings, the first being an “appeal” filed on 2 de junio de 2011 (see Volume XXXV, folios 16762 to 16893). The second was an “appeal in cassation” (casación), filed on 1 de agosto de 2011 (see Volume XXXVII, folios 17408 to 17648).

The third was an “addendum” to his appeal in cassation on procedural grounds, a motion filed on 5 de agosto de 2011 alleging violation of the principle of the natural judge (juez natural) (see Volume XXXVII, folios 17908 to 17903). Volume XXXVIII contains other filings by him that must also be mentioned, at folios 171854, 171855, 171909 to 171910, and 171945, in which he addresses the admissibility of his “addendum” and offers evidence in that regard. Finally, Volume XXXIX contains the “appeal against the judgment” (filed on 10 de febrero de 2012; see folios 172346 to 172686), through which Dr. [Nombre012] reformulated his prior cassation claims as an appeal against a criminal judgment, pursuant to Transitory Provision III of Ley N° 8837 de 3 de mayo de 2010 (“Creation of the appeal against judgments, other reforms to the system of challenges, and implementation of new rules governing oral proceedings in criminal cases”).

Arguments.- This final filing begins with a thirty-one-page “Summary” in which Dr. [Nombre012] explains that he is submitting the reformulation of the appeal and the expansion thereof that he timely filed against judgment N° 167-2011. Specifically, he challenges the ruling set forth in the majority opinion of Judges Rosaura García Aguilar and Ileana Méndez Sandí (Judge Jorge Camacho Morales dissented). Throughout this preliminary digest or summary of the appeal, he alleges failure to observe Articles 24, 30, 33 34, 35, 39, 40, 152, 153, and 153 of the Political Constitution; Articles 1, 2, 3, 5, 7, 8, 10, and 28 of the Universal Declaration of Human Rights; Articles 2, 5, 17, 18, and 26 of the American Declaration of the Rights and Duties of Man; Articles 2.1, 3, 7, 9.3, 10, 14.1, and 14.3, subsections d) and f), of the International Covenant on Civil and Political Rights; Articles 1, 2, 5.1, 5.2, 7.3, 8.1, 8.2, subsections d) and f), 9, 11, and 25 of the American Convention on Human Rights (“Pacto de San José”); Articles 1, 2, 3, 4, 5, 6, 9, 10, 12, 22 subsection b), 23, 33, 55, 82, 92, 96, 142, 163, 171, 172, 175 to 179, 181, 182, 184, 186, 201, 361, 363, 458, and 465 of the Code of Criminal Procedure; Articles 46, 72 subsections a), e), and f), and 342 of the Criminal Code; the Law on the registration, seizure, and examination of private documents and interception of communications (Ley N° 7425, effective since its publication in La Gaceta on 8 de setiembre de 1994); and Article 62 subsection a) of Ley N° 8422 de 6 de octubre de 2004 (Law against Corruption and Illicit Enrichment in Public Service, effective since its publication in the newspaper La Gaceta N° 212 on 29 de octubre de 2004); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the Inter-American Convention to Prevent and Punish Torture.

He therefore requests, pursuant to Articles 458, 459, and 465 of that same statute, that the conviction be vacated and that he be acquitted. He warns that due process (debido proceso) was fundamentally violated to his detriment beginning on 15 de octubre de 2004 itself, when—voluntarily and after notifying the Attorney General—he returned to the country while still serving as Secretary General of the Organization of American States, making a fair trial impossible. He contends that the judgment contains numerous failures to apply and erroneous applications of the law in determining the facts that the majority of the court deemed proven (which do not specify circumstances of place and time, who participated, the reasons for the actions, how the payments were made and what they related to, in connection with the contracts involving Alcatel; the false involvement attributed to him before [Nombre026] in collecting debts from Alcatel; and the alleged payments that [Nombre026] purportedly made to him using Alcatel funds), rendering that determination of facts arbitrary.

In general terms, he challenges the lawfulness of the evidence admitted at trial and the assessment of the evidence (which does not comply with the rules of sound judicial reasoning (sana crítica)), the legal reasoning of the judgment (which is incomplete and, in many instances, contradictory), and the determination of the sentence imposed. He argues that the statement—which is not testimonial evidence—of the confessed accused and cooperating witness [Nombre026] was improperly assessed (because there is no external evidence supporting or corroborating his account) to connect him to the offense, and that the judgment falsely asserts the existence of documents that do not correspond in any way to its arguments. Illegitimately and contradictorily, the judgment relies on banking evidence obtained from Panamá without judicial authorization, violating the constitutional right to privacy, even though the court itself—unanimously—declared other evidence from the same source unlawful for precisely those reasons.

Likewise, it admitted unlawful evidence because it was obtained after the period covered by the judicial authorization or from entities other than those ordered to produce it. The court’s majority refused to hear and rule on serious violations in the negotiation and judicial approval of the prosecutorial discretion agreement (criterio de oportunidad) granted to [Nombre026]. He was subjected to a modification of a limitation-period condition (prescripción) that already protected him, based on a law enacted after the event that triggered that protection. He was tried in violation of his right to the natural judge and was given the maximum sentence for an alleged instigation that not even [Nombre026] himself dared to assert, since he repeatedly stated instead that he had accepted the corrupt offer before the conversation that he falsely claimed to have had with [Nombre012] to inform him of it.

Despite repeated requests by his defense attorneys, no investigation was conducted into the other contracts between Alcatel and Servicios Notariales Q.C. concerning earlier ICE purchases from Alcatel that differed from the one at issue, to determine whether irregularities had occurred in those contracts or whether the alleged payments received might have originated from other lawful sources. The court majority erred in blindly treating [Nombre026]’s assertions as confirmed, because in fact he made obvious contradictory and false statements under the rules of sound judicial reasoning. No reasoned analysis was made of the observations that the experts retained by his defense counsel ([Nombre030] and [Nombre031]) made regarding the Forensic Auditor’s assertions, despite the serious limitations of the reports, because the forensic experts did not cross-check or verify the information where there were inconsistencies concerning dates, transaction times, bank stationery, customer signatures, and the creation and liquidation of investment certificates, but instead relied entirely on what the banks told them.

Throughout the trial, a series of suspicious indicators concerning the conduct of Banco Cuscatlán, Cuscatlán International Bank, and Grupo Cuscatlán was clearly established, but knowledge of these circumstances did not lead the Prosecutor’s Office to investigate whether anti-money-laundering laws were being violated, nor did the forensic experts take the trouble to investigate the matter or at least report it to SUGEF. The judges who signed the majority opinion believed [Nombre026] regarding the alleged meetings in [...] and at [Nombre012]’s home, without any evidentiary support other than the immigration movements recorded for the alleged participants, records that at most establish only that [Nombre026], Alcatel representatives, and the accused were in the country on those dates. To lend credibility to [Nombre026] regarding the meetings in [...] and at the appellant’s home, the judges state that the subsequent payments confirm the instigation, but that conclusion cannot be drawn with certainty because the amounts subsequently received—if any—could have originated from causes other than an offense: “It is guilt that must be proven, not innocence,” the appellant states, adding that the existence of a criminal plan by Alcatel or the fact that [Nombre026] voted to award the contract for the four hundred thousand lines are likewise not circumstances proving with certainty that [Nombre012] acted as an instigator.

He emphasizes that [Nombre026] himself stated at trial on at least three occasions that he had already accepted Alcatel’s offer in principle (he requests review of the statements made at trial on 8 de setiembre at 15:40:40 hours and on 9 de de setiembre at 08:11 hours and 13:45 hours, all in 2010), such that he did not need to be persuaded to carry out his plan; the witnesses and [Nombre026] himself agreed that the appellant never asked any ICE director or official for anything concerning the tender for the four hundred thousand GSM cellular lines or any other purchase or contract. [Nombre026] does not even claim that, during the fictitious meeting, he informed [Nombre012] of his alleged commitments to Alcatel, much less that he told him he needed his assistance to fulfill them. The judges blindly believed the accused [Nombre026], despite the contradictions in his statements and even though both of them heard him testify about his unexplained income while he was Minister of Housing and other income connected to other alleged offenses confessed by [Nombre026] and corroborated by O.I.J.

Not all possible bank accounts, in colones or dollars, belonging to [Nombre026] and his wife were investigated because the Public Prosecutor’s Office did not request it, and for that same reason [Nombre026]’s other possible offenses were not investigated either; yet he was presumed innocent, whereas the burden of proof was reversed for the appellant [Nombre012] because—according to the judges—he failed to prove that the alleged payments attributed to him by [Nombre026] had a different nature. In contrast, Judge Camacho Morales, in his dissenting or minority opinion, conducts a careful analysis showing that in no instance was a promise of a benefit by the alleged bribe-givers proven and that the dates identified in the majority opinion are incompatible with a coherent explanation of the tasks entrusted to [Nombre026]. The funds that [Nombre012] received from [Nombre026]—the appellant asserts—actually correspond to a loan whose repayment his attorneys tendered in court in 2004, but the judges maintain that it was not a loan solely because [Nombre026] says it was not. Judge Camacho Morales noted the unlawfulness of evidence 588, which gave rise to the case and was obtained without a judicial order, in clear violation of the constitutional legal order.

This is the same situation as that of other evidence also obtained from Panamá, but which was unanimously declared illegal by the same criminal court in this trial, by ruling issued at 8:00 a.m. on May 14, 2010, because the fundamental requirement of a court order—necessary for the lawful lifting of banking secrecy (levantamiento del secreto bancario)—had been bypassed. The Public Prosecutor’s Office (Ministerio Público) argued that evidence No. 588 is valid because the legal representative of the company whose banking relationships in Panamá were presented at trial had given consent. That purported authorization was given almost seven years after the evidence had been obtained illegally and three days after the Trial Court issued its ruling at 8:00 a.m. on May 14, 2010, declaring the evidence from Panamá obtained without judicial authorization to be illegal; moreover, it was given without verification of the purported representative’s authority to act (personería).

Regarding the banking evidence obtained pursuant to the «Tratado Centroamericano de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá», Judge Camacho Morales is correct in stating that the legal formalities established as safeguards of a fundamental right must always be observed because they are matters of public policy (orden público) and cannot be waived by private parties. The remaining evidence derived from No. 588 is likewise unlawful; once excluded, there is no evidence of any of the facts alleged in the indictment. The Criminal Chamber of the Supreme Court of Justice declared this evidence invalid two weeks after the issuance of the judgment challenged in these proceedings, when the Third Chamber of the Supreme Court of Justice [referring to judgment No. 499 issued at 11:45 a.m. on May 11, 2011] ruled on the appeals filed against the judgment handed down in the «Caja-Fischel» case, which concerns not only the same evidence but also another matter in which, as here, an attempt was made to validate it through the authorization of [Nombre032].

In addition, there are nineteen other items of banking evidence [which he requests be admitted as evidence supporting this ground for appeal] that suffer from the original defect that the judicial ruling did not order the lifting of banking secrecy, but merely authorized the inspection, search, and seizure of the documents (unless the lifting is ordered, the bank cannot provide the information, even if prosecutors or police officers have been authorized to seize the documents). The violations occurred first in connection with the procedure followed to obtain the banking evidence, both from Banco Interfin and from Sociedad Acobo Fondos de Inversión (the O.I.J. officers carried out the seizure after the period ordered by the pretrial judge (Juez de garantías) for conducting the procedure had expired), and subsequently when the court erred by treating that illegally obtained evidence, which had been introduced at trial, as valid, thereby resulting in an incorrect determination of the facts.

According to Judge Camacho Morales’s opinion, the procedure followed to grant [Nombre026] an opportunity-based prosecutorial waiver (criterio de oportunidad) was defective and illegal; its authorization was improper, and the Criminal Court’s ruling granting it is ineffective because it lacks grounds. Consequently, the statement that defendant gave during the trial is unlawful. The female judges of the Court rejected the objection based on defective procedural activity (actividad procesal defectuosa), declaring themselves without jurisdiction to rule on the defects in its processing and judicial approval (cf. ruling issued at 1:30 p.m. on September 2, 2010, volume XXXVIII, folios 13676 through 13736 verso). The opportunity-based prosecutorial waiver was applied to [Nombre026], who received a disproportionate benefit as a purported “cooperating witness,” even though he is not a defendant whose conduct demonstrates less culpability than that attributed to the other participants.

The Public Prosecutor’s Office concealed from the criminal judge who approved the opportunity-based prosecutorial waiver information that was decisive in determining the culpability of his conduct, concerning other actions of his that could also be considered criminal but against which the Prosecutor’s Office subsequently declined to bring criminal proceedings because of the application of the opportunity-based prosecutorial waiver; he was therefore effectively granted immunity beyond judicial oversight. With regard to the statute of limitations on criminal prosecution (prescripción de la acción penal), he argues that the female judges incorrectly applied subsection (a) of Article 62 of the Ley contra la Corrupción y el Enriquecimiento ilícito en la Función Pública, Ley N° 8422 of October 6, 2004 (effective upon its publication in the official gazette La Gaceta N° 212 of October 29, 2004), which eliminates the halving of the limitations period established by Article 33 of the Código Procesal Penal upon the formal questioning of the accused (indagatoria).

The first formal accusation occurred with the statement of October 15, 2004 and produced the effects prescribed by the law then in force; that effect cannot be altered by a subsequent law, because doing so would entail retroactive application of the law to his detriment, in violation of Article 34 of the Constitución Política. The principle of the natural judge (principio de juez natural) was violated because Judge Rosaura García was brought from the Escuela Judicial to preside over the Trial Court and returned to the Escuela Judicial as soon as the trial ended, yet continued returning to the Court to participate in stages of these proceedings, unlike Judge Camacho Morales, who was transferred to another judicial seat and did not participate in the decision on a request for clarification and supplementation (in which Judge Rosaura García did participate). The Trial Court prevented him from personally conducting his defense (defensa material).

Given his professional specialization, Dr. [Nombre012] requested that the Court allow him to conduct his defense personally by questioning expert witness (perito) [Nombre033] concerning the quantification of the social harm caused by the acts of corruption attributed to the civil defendants, but the Court denied him the exercise of that right, and his defense therefore preserved the issue for cassation (reserva de casación). The female judges who handed down the conviction acted under the constraint and influence of social circumstances. A proceeding with the media and political significance of the criminal prosecution of a former President of the Republic and Secretary General of the Organization of American States carries an immense emotional burden, compounded by the public humiliation staged when he voluntarily returned to the country and the climate that prevailed nationwide from that time onward, all magnified by the actions of then-President [Nombre034], Attorney General Francisco Dall'Anese Ruiz, political leaders, and the media.

There was a “staged portrayal of guilt,” and he was thus prejudged and convicted in the court of public opinion through a trial by media, with greater severity because he was a public figure. That parallel trial exerted pressure that influenced the judicial proceedings because it created in the female judges’ subconscious the belief that only a conviction would meet popular expectations and defend the prestige of the Judiciary. «Judges cannot cease to be the mouthpiece of the law,» the appellant emphasizes, but the female judges, subconsciously predisposed or biased by the weight of that social environment, adopted unsupported interpretations in order to convict him, even though his guilt was never demonstrated throughout a tortuous and degrading proceeding in which he was even improperly deprived of his liberty. The sentence imposed on him is contradictory, unsupported, and not objective.

The appellant received the maximum sentence, while [Nombre026], who appears to have been involved in more criminal acts and with more defendants, received the benefit of the opportunity principle (principio de oportunidad). In determining the sentence, they referred only to his status as a former President and failed to consider his positive or favorable personal circumstances both before and after the acts, such as his age and his conduct throughout the proceedings. Nor do the female judges explain why they denied the benefit of a suspended sentence (ejecución condicional de la pena), when all the objective and subjective requirements for its application were met: he would be a first-time offender, has a family, and works as a lecturer at the Universidad de Costa Rica despite being retired. Following this «Summary,» between folios 172377 and 172378, he sets out an «Index» listing the various sections and claims developed throughout the appeal, as follows: Section One.—Disagreement with the determination of the facts.

The determination of the facts deemed proven in the judgment grossly violates the rules of logic, psychology, and experience and, in many instances, those facts contradict one another; they therefore lack supporting grounds, and their determination is arbitrary. The facts said to have been established do not correspond to the evidence presented at trial (cf. Appeal, folios 172381 to 172382). A. False determination of the decision to engage in corruption. The findings regarding proven facts Nos. 26, 27, and 48 of the judgment are challenged as mere assumptions that are arbitrary and unsupported (cf. appeal, folios 172382 to 172386). B. False determination of the subject matter of the contracts between Alcatel and Servicios Notariales QC. The findings regarding proven facts Nos. 48 to 59 of the judgment are disputed. The contracts predating the four consulting agreements between Alcatel and Servicios Notariales QC, which concerned fixed lines, were neither investigated by the Public Prosecutor’s Office nor considered by the female judges, even though those earlier contracts could be related to other unlawful actions by [Nombre026] preceding the procurement of the four hundred thousand GSM cellular lines.

Logic dictates that when a situation may have been caused by different and independent events, it cannot simply be attributed to only one of them without ruling out the possibility that the others occurred. “Why,” the appellant asks, “if the contracts predated these events, if they concern other sales to ICE, if those other sales to ICE took place, if they took place while [Nombre026] was an ICE director, if Alcatel’s transfers of funds to [Nombre026] concern those other events, and if the OIJ experts say that they are payments for those events, is that possibility simply dismissed out of hand?” The conclusion does not follow from the premises (non sequitur, the appellant says, again criticizing the female judges’ lack of objectivity; cf. folios 172386 to 172393). C. False statements regarding my alleged participation in [Nombre026]’s purported actions to collect payment from Alcatel. The findings regarding proven facts Nos. 64, 68, 69, 70, 71, 74, and 75 are disputed because they are unclear or imprecise, contradict No. 48, and, in some instances, are supported solely by the statements of cooperating defendant [Nombre026], which do not constitute testimony but rather the statement of an interested defendant and therefore necessarily had to be corroborated by other evidence, which did not occur in this case.

Stopping in París to make a telephone call seems very strange, but it is an incredible absurdity to argue that [Nombre026] went to París in 2001 to make a call that was placed in mid-2000; this shows that the female judges blatantly manipulated the evidence in violation of the most elementary rules of experience (cf. folios 172393 to 172395). D. Unsupported assertions concerning alleged meetings held by [Nombre026].

The establishment of proven facts (hechos probados) numbers 85 to 93 in the judgment is challenged because they have no support other than the statement of collaborating defendant (imputado colaborador) [Nombre026]. For the judges, if defendant [Nombre026] says that they met with Mr. [Nombre035] at [...], it is enough to verify that he had not left the country to corroborate his account. According to [Nombre026], he initially accepted the offer made to him (see statements by [Nombre026] of 8 de setiembre at 15:41 hours and 9 de setiembre at 13:45 hours, of the year 2010), and whatever he may have reflected upon when he arrived home has no support other than his own account. The participation percentage mentioned bears no relation whatsoever to the amounts that [Nombre026] says he delivered to [Nombre012]. According to the statements made before the Court by confessed defendant (imputado confeso) [Nombre026], his reason for seeking out [Nombre012]—at that meeting for which there is no evidence whatsoever—was to feel protected given the magnitude of the events and because of his closeness to don [Nombre012], so that he could carry out the three assignments entrusted to him, according to [Nombre026], by Alcatel through its officers.

Proven facts 85 to 92 are inferred solely from the last statements made in exchange for an agreement with the Public Prosecutor’s Office (Ministerio Público) when the arrangement for an abbreviated procedure (procedimiento abreviado) was made: “This occurs at the beginning of May 2005—the appellant says—when [Nombre026] states for the first time that he accepted Alcatel’s offer before the purchase of the 400.000 lines (see main case file Volume VIII, pages 2992 to 3010). Previously, from his first preliminary examination (indagatoria), he maintained that it was a reward given after the award. That strange statement, made over three days but written as a document prepared pursuant to an agreement, with passages in quotation marks, precise punctuation, and the wording of a written submission rather than a statement, remains the basis of the agreement for the opportunity principle (criterio de oportunidad), as prosecutor Criss González explained it to the Trial Court.

The appellate judges should note how the facts actually proven conform better to [Nombre026]’s first version (payments as a reward from Alcatel to secure, possibly, a 50% expansion of the tender and new future contracts; which, of course, does not mean that there had not been prior payments for other contracts) than to the second: an agreement between [Nombre026] and Alcatel on a Saturday at the end of 2000. The second version is contradictory because [Nombre026] could not have known the dollar amount of the tender, or that it involved 400.000 lines, nor is it logical to pay for a migration to GSM that had already been approved many months earlier, or for him to bear responsibility for the tender being conducted when it was ordered by the Contraloría General de la República in January 2001 after it refused to allow direct purchases. Perhaps those circumstances explain why the prosecution neither investigated nor attempted to verify the alleged meetings at [...] between [Nombre026] and Alcatel representatives, or at my house with me.” According to proven fact number 93, [Nombre026] did know the amount of the tender before 5 de diciembre, which is when the amount for the lines was determined: “Thus, the judges accept contradictory versions from [Nombre026] whenever convenient to uphold the conviction that the condemnation by the media and politicians had already subconsciously instilled in them.

The appellate judges should also please note how, without any basis whatsoever, the judges state that he conveyed to me: ‘and the actions he was required to perform in return.’ In no statement, whether to the Prosecutor’s Office or during the trial, did [Nombre026] assert such a thing. Where did the judges get that assertion?…” (cf. appeal, pages 172395 to 172400).

E. False determination of facts concerning alleged payments by [Nombre026]. The establishment of proven facts numbers 95 to 98 and 100 to 114 is challenged because they have no support other than the statement of collaborating defendant [Nombre026]. Report N° 297-DEF-540-04/05 of the Organismo de Investigación Judicial itself concludes that it is impossible to make any assertion regarding the alleged cash deliveries that, for different reasons and on various and contradictory occasions, [Nombre026] claims to have made to [Nombre012], and that they cannot be verified from the existing evidence. The judges violate the rules of sound judicial discretion (sana crítica) by finding that [Nombre026] cooperated out of remorse and patriotism, or that any contradictions on his part were attributable to his “state of mind,” because he plainly had an interest in securing [Nombre012]’s conviction in exchange for his own immunity. [Nombre026] states that he did not pay [Nombre012] the 60% that, according to him, [Nombre012] had requested because he considered it unfair and disproportionate: “What does ‘unfair and disproportionate’ mean—the appellant asks—in the account by [Nombre026] that the judges recount?

Unfair because [Nombre026] is a principal perpetrator, which I could not be even under his false accusations? Disproportionate in relation to the responsibilities that [Nombre026] knows are his? If so, how could an opportunity principle have been applied in favor of [Nombre026]?” [Nombre026] did not testify as a witness at trial, does not have the status of a witness (but rather that of a confessed defendant, allegedly a “collaborator”), and was not sworn under an obligation to tell the truth. No other evidence capable of confirming the truth of his assertions regarding the crux of the facts under the statutory elements of the offense (tipicidad del delito) was validly admitted at trial: the existence of the promise of compensation, the act contrary to official duties, the occasion and timing of those nonexistent acts, and the actions that [Nombre026] claims to have performed (cf. appeal, pages 172400 to 172406).

Second Section.—Objection to the admission and assessment of the evidence. There are gross errors in the admission of evidence underlying the majority opinion because the facts deemed proven by the court were not precisely and circumstantially determined. The majority opinion lacks reasoning, contains contradictory reasoning, and fails to observe the rules of reasoned sound judicial discretion (sana crítica racional) with respect to evidentiary sources and items of decisive value. The reasoning used to assess the evidence is wholly contrary to the facts established by the evidence. The judgment is based on unlawfully obtained evidence, rendering it entirely invalid.

A. The consulting contracts between Servicios Notariales QC S.A. and Alcatel. There is no circumstantial determination that all Alcatel–Servicios Notariales QC contracts were for illegal payments related to the four hundred thousand cellular lines. The irreparable prejudice caused by deeming this fact true is that it connects the four hundred thousand cellular lines with Alcatel payments that the O.I.J.’s own court-appointed experts establish were made for other reasons, thereby treating an alleged receipt by [Nombre012] of funds originating from Alcatel as proven. He requests that the conclusion that Alcatel’s payments under contracts and invoices unrelated to the four hundred thousand lines were payments for that GSM cellular transaction be vacated, and that the conviction against him be vacated and he be acquitted (cf. appeal, pages 172406 to 172415).

B. Alleged request by [Nombre012] to [Nombre026] that Alcatel honor outstanding debts. This issue is addressed on pages 1301 to 1307 of the judgment without offering a single argument substantiating [Nombre026]’s assertion that [Nombre012] asked him to assist in collecting from Alcatel, as the former claims he was requested to do, and that [Nombre012] asked him to use a trip to Paris to pursue that payment. The judges engaged in unsupported speculation that was procedurally irrelevant but highly politically charged concerning the activities of a distinguished attorney who has held very important positions in Partido Unidad Social Cristiana administrations. It is false that the appellant participated in that collection effort (cf. appeal, pages 172415 to 172416).

C. Alleged payments to [Nombre012] and their connection to funds originating from Alcatel. There is no circumstantial determination that the alleged payments by [Nombre026] to [Nombre012] occurred or that they came from Alcatel funds related to the four hundred thousand cellular lines, thereby violating the rules of logic, psychology, and banking experience. The irreparable prejudice caused by deeming these facts true is that they are essential to connect him to the offense sought to be attributed to him. He requests that the judgment’s conclusions concerning payments made to him by [Nombre026] be vacated and that the conviction against him be vacated. The judges address the delivery and receipt of the gift (dádiva) on pages 1703 to 1799 of the judgment. The forensic expert stated that “It was not determined that don [Nombre012] had directly received money from Servicios Notariales QC or Intelmar” (page 165 of the judgment), making it essential in each case to establish an unbroken chain of transmission of funds before validly concluding that Alcatel funds reached [Nombre012] through the instigation he allegedly directed at [Nombre026] to induce him to commit an offense.

Nevertheless, the judges have the audacity to assert that the receipt of the money or certificates that [Nombre026] claims to have given [Nombre012] was “fully corroborated” by “documentary banking evidence.” Defendant [Nombre026]’s account was not corroborated by any evidence other than his statement. “How can the judges say—the appellant asks—that all of [Nombre026]’s assertions have been confirmed when there are substantive contradictions regarding: a) the timing of the agreement with Alcatel, whether before or after the tender; b) the amounts delivered: first, $370.000 in cash, then changed to BICSA certificates of deposit totaling $130.000, all at the Office of the President in January 2001, and many months later he invents two cash deliveries, one of 100.000 dollars in October 2002 and another of 130.000 dollars in September 2003, both at my in-laws’ house; c) his statement on 8 de octubre de 2004 that he had sent an undetermined amount, by undetermined means, at an undetermined time to the company Inversiones Dennise, only later to admit that he never did so; d) whether he said that I had dictated Inversiones Dennise’s ABA address to him, only later, with an imagination rich in detail, to say that he copied it from my computer screen; e) whether he dares to say that he kept cash of unknown origin hidden around his house in amounts totaling thousands of dollars, when in all his transactions he sought to have the money begin earning interest immediately; f) whether there is no evidence whatsoever of the central points of his statement, such as the meeting at [...], his telephone call to arrange a meeting with me, and the fictitious meeting at my house; g) whether he says that he opened the Saint George Bank account to send money to his daughter, who was studying in the United States, when she had finished her studies; h) whether he contradicts himself by saying that no amount was discussed at the meeting at [...], only a percentage because the volume involved was unknown, and then says that the next day, at the alleged meeting at my house, he told me that the amount was between one and a half and two million dollars.” The observations made by his defense experts, [Nombre030] and [Nombre031], regarding inconsistencies in dates, transaction times, bank documents, customer signatures, the issuance and redemption of investment certificates, and cash transactions, although recorded in the judgment as arguments by the technical defense (Defensa técnica), were not analyzed; instead, the judgment continued to rely on the statements contained in the reports of the Economic and Financial Crimes Section of the O.I.J., which in turn depend on unverified statements by bank officials.

Moreover, the forensic experts themselves acknowledged the serious limitations of their reports in their own testimony, stating that they did not compare or verify the information where there were inconsistencies in dates, transaction times, bank documents, customer signatures, the issuance and redemption of investment certificates, because they relied entirely on what the banks told them. Those limitations were not taken into account by the judges, which in itself constitutes a deficiency in the reasoning of the judgment (fundamentación de la sentencia), rendering it incomplete. Throughout the trial, a series of suspicious indications concerning Banco Cuscatlán’s actions was established; nevertheless, these did not lead the Prosecutor’s Office to investigate whether money-laundering laws (leyes de legitimación de capitales) were being violated. Nor did the forensic experts bother to investigate the matter or at least report it to SUGEF.

Should it not have raised concern that transactions exceeding fifteen million dollars entered the accounts of Servicios Notariales QC without those financial institutions seeking further justification? Is it not strange that those “explanations” were later sufficient for them to purport to determine the Alcatel origin of various transactions through methods contrary to banking and financial experience regarding computer systems, “cash-desk validations,” the handling of cash when exchanging certificates of deposit, transfers between domestic and foreign banks, exchanges among different securities belonging to various members of the financial group, acceptance of signatures from persons lacking authority, etc., etc.? The forensic experts used documents in English even though they were not proficient in that language, and many of their conclusions—as well as those of the judges—were based on the bankers’ statements, without valid verification of those statements (cf. appeal, folios 172416 to 172431).

D. Assessment of the unsworn statement (declaración sin juramento) of the accused who confessed (imputado confeso), [Nombre026]. The majority opinion accepts that [Nombre026]’s statement is not evidence, yet accepts his assertions even though no evidence or indication supports them on material points that could in any way link [Nombre012] to the offense. The reasoning is unlawful, violates the rules of logic, experience, and psychology, and is based on unlawfully obtained evidence (prueba ilegal). It causes irreparable harm by unlawfully treating as true the statement of an accused who confessed, which is not evidence and whose truthfulness is not corroborated by any other evidence. The Constitutional Chamber itself stated: “It is important to mention, by way of reference, that the European Court of Human Rights [...] recognized the legitimacy of a cooperating or repentant witness [...], but that such testimony should be admissible only as a source of circumstantial evidence (prueba indiciaria); that is, the data or information provided requires support from other evidence.

It becomes an investigative means subject to direct or indirect confirmation of the data and circumstances provided concerning the facts under investigation” (Constitutional Chamber, N° 12090, 14:40 hrs. of 31 July 2009). “It is guilt that must be proved, not innocence,” the complainant reiterates. What [Nombre026] states is that he reflected that he might need help to carry out his plan, not that he needed to be persuaded. All the witnesses, including [Nombre026] himself, agreed that [Nombre012] never asked any ICE director or official for anything regarding the tender for the four hundred thousand GSM cellular lines, or regarding any purchase or contract. “And, to compound the contradiction,” the appellant says, “he seeks me out in case he needs help, does not ask me for it, and does not even inform me of the conditions that he had allegedly been asked to fulfill.” For the judges, “conclusive” evidence that they met on 2 and 3 December 2000 at [...] and at [Nombre012]’s home consists of the fact that the alleged participants were in the country, according to the entry and departure records of [Nombre026], [Nombre015], [Nombre035], and [Nombre012].

That conclusion does not follow from the premises: “Under that reasoning,” the complainant says, “it is proved that all of us who are in Costa Rica today met, if [Nombre026] says so.” The judges display “blind credence” toward whatever [Nombre026] says, whether or not it is contradictory, whether or not there are at least indications confirming it, whether or not it accords with experience, whether or not it conflicts with the actual chronology, and whether or not his account establishes the location of persons in the world: “...it is even more unjustified,” he adds, “when the judges personally witnessed [Nombre026]’s testimony concerning unjustified income while he was Minister of Housing, as well as the other income related to other alleged offenses confessed by [Nombre026] and corroborated by the OIJ.” The bank accounts in colones and other possible accounts belonging to [Nombre026], whether in his name or his wife’s, were not investigated because the Public Prosecutor’s Office did not request it.

Nor were [Nombre026]’s other possible offenses investigated, even though the Public Prosecutor’s Office was informed of them, because the prosecutors did not request an investigation (see testimony of [Nombre036], pages 190 and 193 of the Judgment). The judges knew all of this, but it did not affect the absolute credibility they gave him, impervious to any contradiction or error in [Nombre026]’s statements. “It might be argued to me that these were unadjudicated facts and therefore could not be used by the court because that would violate the presumption of innocence. But then why is it argued against me that I did not prove that the payments allegedly made by [Nombre026] to the accused were of a different nature? When it is used against me, does the presumption of innocence not apply, but only when it benefits the accused who confessed, [Nombre026]?” Judge Camacho Morales, by contrast, demonstrates that in no case was a promise by the alleged bribers proven and that the dates accepted by the judges in their majority opinion are incompatible with a coherent explanation of the tasks assigned to [Nombre026].

As for the unlawful prosecutorial-discretion agreement (criterio de oportunidad) granted to [Nombre026] by deceiving the judges, the judges were divided as to the legality and propriety of judicial approval of that agreement and denied that they had jurisdiction to consider it during the oral trial. This judgment argues that [Nombre026] intended from the outset to cooperate in his first statement in September 2004, without taking into account that the facts he described in that statement are wholly contrary to those he accepted in May 2005, when he reached an agreement with the Public Prosecutor’s Office for an abbreviated proceeding (procedimiento abreviado), and which are virtually identical to those included in the prosecutorial-discretion agreement. The majority opinion states that, although [Nombre026] escaped punishment for his actions, this was not the result of his own decision but of the legislature’s approval of the mechanism and its approval by other judges.

That is incorrect, because the Trial Court was responsible for ruling on approval of the prosecutorial-discretion agreement and refused to do so. The majority naively believes that [Nombre026] cooperated for alleged patriotic reasons. He was placed under house arrest and went unpunished because, instead of partially waiving criminal prosecution (prescindir parcialmente de la persecución penal) by limiting itself to not charging him in connection with the four hundred thousand lines, the Public Prosecutor’s Office waived prosecution entirely, including for other offenses to which he confessed. The majority opinion says nothing about the Public Prosecutor’s Office’s refusal to investigate other offenses confessed by [Nombre026] and substantiated in the OIJ accounting reports. Nor, with respect to the other offenses confessed by [Nombre026], does the majority opinion refer to the preceding circumstances or to the millions in funds that remained in [Nombre026]’s possession under the prosecutorial-discretion arrangement.

There has been a clear tendency to favor [Nombre026] in every respect. The majority relies on [Nombre026]’s statement to legally characterize (tipificar) the conduct attributed to [Nombre012] as “instigation” (instigación), but neither [Nombre026]’s alleged words at [...], nor his alleged “thoughts” or “reflections” at his home, nor his purported words at the fabricated meeting at [Nombre012]’s home indicate either that [Nombre026] needed to be induced to do something he had already accepted in principle—that is, something he had accepted or embraced in essence—and had repeatedly been doing in other cases that no one wished to investigate, or that [Nombre012] caused him to form the intent and resolve to do it: “There is no way to characterize the acts of which [Nombre026] accuses me and the facts described in the indictment as instigation of aggravated corruption based on improper bribery (cohecho impropio), which means that my conduct does not constitute an offense (atípica) and establishes a violation of the substantive law (ley sustancial) of the Criminal Code, requiring dismissal (sobreseimiento) or acquittal in my favor...” (cf. appeal, folios 172432 to 172451).

E. Nature of [Nombre026]’s delivery of funds to the President. The majority opinion rejects [Nombre012]’s account of the nature of the funds that [Nombre026] gave to [Nombre012]—which the latter always acknowledged receiving from the former and which were repaid in 2004, with the payment deposited with the Public Prosecutor’s Office—based solely on [Nombre026]’s statement. His testimony was improperly assessed, and treating as true the statement of that accused who confessed, which is not evidence and is unsupported by any other evidence, causes him irreparable harm. “Regarding the nature of the funds delivered to me by [Nombre026], which I have always acknowledged and which—together with the cash that he initially and falsely claims to have delivered to me in late 2000 or early 2001, only to recant later and say that he did not deliver it—constitute the entirety of what he claims in his initial statement (30 September 2004) to have delivered to me, the judges assert that it was not a loan whose repayment my attorneys deposited beginning in 2004.

And why do they maintain that it was not a loan? Because [Nombre026] says it was not...” (cf. appeal, folios 172451 to 172452). F. A judgment based on unlawfully obtained evidence (prueba ilegítima). Bank evidence obtained without a judicial order in Panamá (Evidence 588). The majority opinion uses and relies extensively on Evidence 588, which is unlawful and unconstitutional and forms the basis for the alleged existence of the offense. Evidence 588 is a certified copy of the Judicial Assistance from the Republic of Panamá, transmitted through notes PGR-030-2004, dated 10 September 2004, and N° 316-DN-TALM-04 of 6 September 2004.

That evidence consists of a certified copy of a letter rogatory (carta rogatoria) to Panamá (dated 10 de setiembre de 2004), in which the Fiscalía requested that the Procuraduría General de la República apply the «Central American Treaty on Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panamá» for the gathering of evidence in the investigation corresponding to the criminal case known as «Caja-Fischel» (expediente penal 04-005356-0042-PE). In that document, the Fiscalía requested the seizure and examination (secuestro y registro) of information concerning all accounts held by Marchwood Holding at all financial institutions within Panamá’s banking system. Likewise, the Fiscalía requested the production of all financial transactions and their respective supporting records (credits and debits), including checks issued from that account, whether cashier’s checks or regular checks, from the date the account was opened through the date of the request, together with the documents supporting those issuances, as well as the account-opening file and all documents submitted to the bank by the person or persons authorized on the account.

Throughout that flow of information between the Ministerio Público and administrative authorities for the purpose of obtaining evidence 588, the corresponding judicial order issued by the pretrial guarantees judge (juez de garantías) in these proceedings to request the required information is conspicuously absent; therefore, that request is marred by defects of legality and constitutionality, since it was made and executed without an order from a judge. The Sala Constitucional has held that documents containing financial information are protected by «bank secrecy (secreto bancario)» and that such secrecy falls within the protections afforded by Article 24 of the Constitución Política, such that, when undertaking any judicial measure (diligencia judicial), the authorities must comply with the procedure and form prescribed by the Constitución Política (cfr. Sala Constitucional, n° 578 de las 10:45 horas del 28 de febrero de 1992).

The constitutional guarantee cannot be waived and applies to all inhabitants, including foreigners; violations of fundamental rights abroad—privacy and bank secrecy—cannot be treated as lawful in Costa Rica. The Law on the Examination, Seizure and Review of Private Documents and Interception of Communications (Ley de registro, secuestro y examen de documentos privados e intervención de las comunicaciones) (Ley N° 7425) was also disregarded, because articles 1, 2 and 3 thereof establish that: a) only courts of justice may order the seizure and examination of private documents when absolutely indispensable for clarifying criminal matters before them; b) only the criminal judge overseeing the preparatory proceeding or the pretrial guarantees judge may, during the investigation, order the seizure and examination of private documents, either sua sponte (oficiosamente) or at the request of the Ministerio Público, provided that they may serve as evidence of the commission of criminal conduct; and c) the order for seizure, examination or review must, on pain of nullity (so pena de nulidad), be issued by means of a reasoned order (auto fundado) identifying, where possible, the documents to which the examination, seizure or review measure will apply, the name of the person possessing them, and their location, regardless of whether that information is located inside or outside the country.

In this case, there is a complete absence of the aforementioned judicial order authorizing the seizure of Marchwood Holdings’ private financial documents and covering all the information requested from the authorities of Panamá and admitted as evidence 588. Moreover, the information contained in what is known as evidence 588, being a certified copy, comes from another criminal case known as «Caja-Fischel»; and if evidence 618, namely Expert Report (Informe Pericial) 428-DEF-443-05.05 with its 19 appendices, is examined, it is readily apparent that the report refers to transfers of money from a company called Servicios Notariales, which was unrelated to the «Caja-Fischel» case, to Marchwood Holding, which was under investigation in that case. Thus, the Ministerio Público learned of the existence of Servicios Notariales QC; in other words, the tainted evidence (prueba espuria) 588 does not come from an independent or prior source, but rather from another case known as «Caja-Fischel».

This unlawfully obtained information arrived from Panamá in early setiembre del 2004 and, specifically, reached the Fiscalía by 10 de setiembre del 2004, as stated at folio 895 of the judgment. At that time, information had been requested only concerning Marchwood Holdings, not Servicios Notariales QC; it was only as of 10 de setiembre de 2004 that the Ministerio Público learned of the existence of a company called Servicios Notariales QC, whereupon it decided to begin an independent line of investigation that ultimately became the present criminal case. The present criminal case therefore did not originate independently of the investigation in the «Caja-Fischel» case. The present criminal case originated with evidence 588, documentation that cannot be considered evidence because it was processed in violation of Article 24 of the Constitución Política and in breach of the independent-source doctrine (teoría de la fuente independiente de la prueba); nevertheless, the judges joining the majority opinion unsuccessfully attempt to justify the independence of evidence 588 by stating (cfr. paginas 933 y siguientes de la sentencia) that other evidence demonstrates the lawfulness of the origin of the present proceedings, such as evidence 592.9 (print-media monitoring from 9 al 31 de diciembre de 2004) and evidence 682 (articles appearing in nationally circulated newspapers, including Diario Extra del 2004).

That material, however, refers only to a house in [...] and to [Nombre021], while the other refers to Taiwan; the fact remains that before that date (10 de setiembre 204), the Ministerio Público was unaware of the existence of Servicios Notariales QC. If evidence 588 is hypothetically excluded (supresión hipotética), there is no other independent, preexisting evidence that would have informed the Ministerio Público of the existence of Servicios Notariales QC and thereby given rise to the present criminal proceedings, in accordance with the case law of the Sala Constitucional (specifically citing judgment N° 4636 de las 16:12 horas del 12 de agosto de 1997). The judges joining the majority opinion nevertheless seek to “sanctify” the unlawfulness of evidence 588 by relying on a letter sent long after that evidentiary documentation had been unlawfully obtained: “Knowing that evidence 588 was unlawful and aware of the consequences arising from its unlawful acquisition, years after the Ministerio Público had obtained that information through improper means, Mr. [Nombre032], pursuant to his negotiation with the Ministerio Público so that it would seek a lesser sentence for him during the trial in the Caja-Fischel case, sent a letter purporting retroactively to authorize the acquisition, use and reliance upon all banking information obtained in the República de Panamá concerning Marchwood Holding, as of a time preceding 10 de setiembre del 2004, the date on which the Ministerio Público learned of the existence of Servicios Notariales QC.” Beginning on page 896 of the majority opinion, the judges validate and base the conviction on that letter signed by [Nombre032], which was admitted during the trial in the present case as evidence 759 (letter signed by [Nombre032] dated 17 de mayo de 2010).

That letter amounts to nothing more than tacit acceptance of the Fiscalía’s unlawful conduct, since otherwise they would never have rushed, years later, to try to validate an incurable defect (vicio absoluto) that was complete at the moment of the unlawful acquisition. Although a distinction may be drawn between the acquisition and admission of evidence, the majority’s proposition that unlawfully obtained evidence may be lawfully admitted is preposterous or absurd, since judgment Magistrado Piza N° 1739-92 has established that evidence has value only if obtained through lawful means. Furthermore, Mr. [Nombre032]’s authority (the type of power of attorney) in relation to Marchwood Holding was never established: “In other words, years later, a particular gentleman appears and unlawfully consents to something, when we do not know whether he has the legal authority to do so...” because the entire case file contains not a single legally issued certificate of corporate authority (certificación de personería jurídica) stating that, on the date the letter was issued, namely 17 de mayo de 2010, Mr. [Nombre032] had authority retroactively and unlawfully to consent to violations of Marchwood Holding’s bank secrecy.

Instead, the judges simply took Mr. [Nombre032] at his word and did not even require proof of his authority as a corporate representative (personero) of Marchwood Holding. By contrast, the dissenting opinion of Judge Camacho Morales seriously and cogently explains why the majority failed to comply with article 181 of the Código Procesal Penal by relying on unlawfully obtained evidence (prueba ilegítima), thereby also violating articles 363, 142 and 184 of that same statute. Judge Camacho Morales concludes that evidence 588 is unlawful for the same reasons that the court had previously—and unanimously—found another item of evidence brought from Panamá in this trial to be unlawful, by resolution de las 8:00 horas del 14 de mayo de 2010 (cfr. tomo XXVII, folios 13352 a 13408), because the constitutional and statutory requirement of a judicial order had been disregarded. The Ministerio Público argued that evidence 588 was valid because the legal representative of the company whose Panamá banking records were introduced at trial had given consent, and the judges accepted that argument.

By resolution N° 499-2011 de las 11:45 horas del 11 de mayo del 2011—in the «Caja-Fischel» case—the Sala Tercera de la Corte ruled on that same item of evidence, known as “588,” declaring it inadmissible (ineficaz), along with the other evidence directly derived from it. In that «Caja Fischel» trial, to which judgment N° 499-2011 refers, an attempt was also made to validate the unlawful evidence from Panamá—the same evidence designated as number 588 in the present case—by employing the same ploy of resorting to [Nombre032]’s approval. The majority of the Sala Tercera likewise rejected that purported validation in opinion N° 499-2011 and instead deemed it entirely unlawful. G. Banking evidence provided without a judicial order. The majority opinion relies on banking documentation unlawfully introduced at trial because the financial institutions lacked express judicial authorization to lift bank secrecy, even though prosecutors or judicial police officers had been authorized to seize the documentation, in accordance with the position stated by the Sala Constitucional in judgment N° 578-92 de las 10:45 horas del 28 de febrero de 1992 and by the Comisión de Asuntos Penales de la Corte Suprema de Justicia.

The appellant (quejoso) identifies nineteen rulings issued by the Juzgado Penal de Hacienda del Segundo Circuito Judicial de San José and contends that the banking documents seized on their authority must be declared inadmissible because none of those rulings authorized the banking institution to lift the secrecy protecting the private documentation (cfr. recurso, folios 172473 a 172486). H. Banking evidence provided after the judicially established deadline.

The majority opinion is based on unlawfully obtained evidence, seized and introduced at trial, gathered outside the time limit established in the judicial authorization, in the cases involving Grupo Financiero Interfín and Acobo Sociedad de Fondos de Inversión, an objection that has been raised since the preliminary hearing, at the beginning of the trial, and in the closing arguments. [Nombre012] argues that his right to privacy was infringed by violating bank secrecy with respect to his accounts at a time when the actions of the judicial officials were not covered by any court order. The OIJ officers who seized the documentation, acting under authority delegated by the Ministerio Público, carried out the seizure after the period ordered by the pretrial judge for conducting the proceeding had expired, which constitutes a genuine violation of due process (debido proceso) (cf. appeal, folios 172487 to 172490). a. Grupo Financiero Interfin.

In this case, the criminal judge expressly ordered that the proceeding be conducted between 8 and 15 October 2004; however, it was not conducted until 27 October, and therefore the action was unlawful and the evidence thus obtained is ineffective (cf. folios 172491 to 172492). b. Acobo Sociedad de Fondos de Inversión. The Criminal Court expressly ordered that the proceeding be conducted between 5 and 15 October 2004; however, it was not conducted until 19 October, and therefore the action was unlawful and the evidence thus obtained is ineffective (cf. folios 172492 to 172496). Third Section.—Disagreement with the legal reasoning. A. Criterion of opportunity (criterio de oportunidad). The majority opinion is based on unlawful evidence, specifically the testimony of [Nombre026], as an alleged cooperating defendant who had confessed, protected by a criterion of opportunity unlawfully requested and approved to secure his impunity, as well as on actions taken by the Ministerio Público that, without judicial approval, unlawfully granted him impunity for other offenses to which he himself had confessed.

He requests that the testimony given by [Nombre026] at trial be annulled and, because there is no other evidence against him of any offense, that the conviction be vacated and the defect remedied by deciding the matter in accordance with the applicable law and acquitting him of the charged offense. The video shows that it was [Nombre026]’s defense counsel who dictated the answers he was to give at trial. In a ruling issued before the judgment, the judges joining the majority opinion had already declared themselves without jurisdiction to decide the objection based on defective procedural activity (actividad procesal defectuosa) raised by the defense concerning defects in the processing and application of the criterion of opportunity [this refers to the ruling issued at 13:30 on 2 September 2010]. Judge Camacho Morales, by contrast, states that the lawfulness of the application of the principle of opportunity (principio de oportunidad) is subject to review and that, in this matter, it was granted through a ruling entirely devoid of reasoning and therefore incapable of producing any legal effect. [Nombre026] confessed to numerous offenses, corroborated by the OIJ’s DEF, which were arbitrarily left uninvestigated; consequently, the application of the criterion of opportunity was not proportionate.

When the Ministerio Público asked the criminal judge to approve the criterion of opportunity, it concealed information crucial to determining the lesser degree of blameworthiness and the proportionality of its application, because the application did not mention other conduct that could constitute offenses and to which [Nombre026] had confessed. Judge Camacho Morales points out the impropriety of the monetary arrangements made by the procuraduría de la ética Pública, because [Nombre026] was legitimized in retaining possession of multimillion-dollar sums, and the judge’s estimates fell short because he did not consider other income to which [Nombre026] confessed but which the Ministerio Público refused to investigate; thus, the State itself legitimized his retention of more than one and a half million dollars (cf. appeal, folios 172497 to 172515). B. Statute of limitations (prescripción).

The majority opinion denies that the limitations period applicable to a sentence of up to three years had expired, because it seeks to apply to him a provision of a law enacted after his initial examination as a defendant, which had already entitled him to a reduction of the limitations period by half. In the ruling issued at 8:00 on 14 May 2010, the court unanimously decided to reserve for determination in the judgment the issue of the applicability of Article 62 of Ley N° 8422 [“Ley contra la corrupción y el enriquecimiento ilícito en la función pública,” in force as of its publication in La Gaceta N° 212 of 29 October 2004]. For [Nombre012], the first formal accusation occurred with the statement of 15 October 2004. Procedural acts (actos procesales) are governed by the law in force when they are performed; a new law cannot be applied retroactively to a procedural act performed while the former law was in force [to that effect, he cites the judgments of the Sala Constitucional N° 4397-99 of 16:06 on 8 June 1999 and of the Tribunal de Casación Penal, N° 132 of 10:30 on 23 February 2006].

He requests that the criminal prosecution be declared time-barred and that dismissal of the proceedings (sobreseimiento) be ordered in his favor (cf. appeal, folios 172515 to 172519). C. Absence of the lawful judge (juez natural). His constitutional right to be tried by a lawful judge was disregarded. This occurred because, to constitute the court, Judge Rosaura García of the Escuela Judicial was summoned, and she assumed the presidency of the court, after which her return to the Escuela Judicial was arranged. This shows that she was brought in expressly and solely to decide this case; notwithstanding her return to the Escuela Judicial, she subsequently issued various rulings instead of her alternate doing so, as though the case were “hers.” Judge Camacho Morales, by contrast, was not brought back to issue those post-judgment rulings concerning motions to supplement and clarify the judgment; instead, they were decided with his alternate or substitute, demonstrating the special treatment given to Judge García so that she could try him (cf. appeal, folios 172520 to 172523).

D. Obstruction of the exercise of his personal defense (defensa material). During the trial, he was prevented from exercising his constitutional right to conduct his personal defense, constituting a due-process violation that renders the judgment null and void. This occurred because the trial court prevented him from personally questioning the witness or expert [Nombre033], called by the Procuraduría General de la República. The appellant states that he holds a doctorate in Economics, is a Catedrático de la Universidad de Costa Rica en la Facultad de Ciencias Económicas, has also taught at the Universidad de California, Berkeley, the Universidad Autónoma de Centro América, George Washington University en el Distrito de Columbia, and the Universidad Carlos III en Madrid, and is a practicing attorney; accordingly, he and his defense counsel preferred that, as an expert on the subject, he conduct the questioning of the expert witness.

The trial court did not permit this, however, and his defense preserved the issue for cassation review (reserva de casación) (cf. appeal, folios 172524 to 172526). E. Violations of due process and failure to comply with the Constitución Política and the International Human Rights Treaties signed by Costa Rica. The judgment is founded on torture and on acts that violated due process and his opportunity to present a defense. His constitutional rights to a defense, to a lawful judge, not to be punished without a final judgment, not to be punished without proof of guilt, and not to be subjected to cruel or degrading treatment were violated. The violation of due process and of his rights, the trial by media and politics, and the continuing psychological torture not only subconsciously conditioned the Court to follow the sole path of convicting him but also gave rise to proceedings “not conducted in accordance with law,” which is his constitutional guarantee and that of every Costa Rican citizen.

The judgment causes irreparable harm arising from the subconscious of the judges and from proceedings that were not governed by due process; he therefore requests that the judgment be vacated and that he be acquitted. a. Fair trial, the judge, and the surrounding circumstances. In this section, he states that there were not only errors during the trial and in the majority opinion underlying the judgment, but also absolute defects (defectos absolutos) occurring throughout these proceedings before trial that have not been cured or validated because they are absolute. The Fiscalía and a sector of the press decided to persuade erga omnes of his guilt and to influence and induce the judges to render a conviction. His detention occurred under conditions of needless humiliation and affront, and he was denied a fair trial. Before reading the operative part of the judgment at the session of 27 April 2011, the judges stated that they did not share the “...traditional notion of the male or female judge who serves as the mouth of the law.” According to Montesquieu, having judges serve as the mouth of the law is the only way for trials to be conducted in compliance with the principle of legality (principio de legalidad) under Articles 39 and 41 of the Constitución Política, pursuant to which justice must be “prompt, complete, and in strict conformity with the laws.” In this manner, the judge is often the mouthpiece of certain media outlets, a reflection of public opinion and demagoguery (cf. folios 172527 to 172532). b. Trial by media (juicio mediático).

This case is paradigmatic of a media or parallel trial that compromises the independence and impartiality of the adjudicator by projecting a preconceived “solution” to the dispute (cf. folios 172532 to 172540). c. Torture. His human rights to dignity, freedom from torture, protection of his honor and image, the presumption of innocence (estado de inocencia), freedom from being displayed as guilty, and due process were violated. The conviction arose under circumstances rendered wholly irreparable by the violations committed against his human rights; he therefore requests that the judgment be vacated and that he be acquitted. He was subjected to cruel and degrading treatment from the moment he arrived at Aeropuerto Internacional Juan Santamaría, according to the facts described in Section F and the evidence offered to corroborate them (cf. folios 172540 to 172545). d. Violations of constitutional provisions, international human rights instruments, and criminal laws.

It has been impossible for him to receive a fair trial since he voluntarily returned to the country on 15 October 2004, because of the senseless duration that turned the investigation into punishment; the arbitrary publicity that produced a self-serving conviction in the media; the use of false evidence and confinement in a holding cell; the unlawful detention; the torture and cruel treatment consisting of public display and humiliation; the imprisonment in isolation in a holding cell for consecutive months; the Ministerio Público’s lack of objectivity; and its deal with a principal perpetrator. The guarantees of the Constitución Política, international human rights instruments, and the laws of the Republic have been violated. It is for the Tribunal de Apelación de Sentencia to remedy those violations by declaring them, vacating the challenged judgment, and ordering his acquittal. He suffered humiliation, contempt, and loss of reputation; he lost his position and freedom and endured the anguish of his family’s suffering (cf. folios 172545 to 172566).

F. Pretrial events that violated due process through the failure to apply, or the erroneous application of, the constitutional and statutory provisions guaranteeing the presumption of innocence and the right to a defense.

In this section, he lists a series of events preceding the trial (referring to the preliminary investigation stage) through which the constitutional, international, and domestic rules identified in the preceding point were violated (cf. folios 172566 to 172666). This is a detailed breakdown of 129 “facts” (as the appellant calls them, although some of these paragraphs contain, in addition to facts, analyses and reflections on the circumstances preceding the trial stage and the issuance of the judgment), as well as an interpretation of the acts or omissions, possible motives or aims of some of the protagonists and figures from that historical period, which he describes, enumerates, and records under the following headings: a) Unjustified delay in the investigation (facts no. 1 to 14, cf. folios 172568 to 172573); b) Violations of the confidentiality of the preliminary proceedings (secreto del procedimiento preliminar) and communications between the Public Prosecutor’s Office (Ministerio Público) and certain media outlets (facts no. 15 to 17, cf. folios 172573 to 172578); c) Unlawful detention (detención ilegal) (facts no. 18 to 25, cf. folios 172579 to 172581); d) Denial of the right to a defense (derecho de defensa) (facts no. 26 to 39, cf. folios 172581 to 172603); e) Degrading public display, cruel treatment, psychological torture (facts no. 40 to 53, cf. folios 172603 to 172609); f) Use of false evidence to obtain a pretrial detention order (orden de prisión preventiva) (facts no. 54 to 69, cf. folios 172610 to 172618); g) The confessed defendant [Nombre026]: from principal perpetrator to cooperating defendant (imputado colaborador).

Improper actions by the Public Prosecutor’s Office in an attempt to grant him impunity (facts no. 70 to 79, folios 172618 to 172642); h) Affront to judicial sovereignty and trial by media (facts no. 80 to 99, cf. folios 172642 to 172653); i) Politicization of the case (facts no. 100 to 129, cf. folios 172653 to 172666). Because the judgment was based on proceedings conducted unconstitutionally and in disregard of the procedural rules protecting the status of innocence (estado de inocencia), confidentiality of the investigation record (secreto del sumario), the right to a lawful judge (juez natural), the right to a defense, personal liberty, respect for human rights, and freedom from torture, it is tainted by absolute defects (defectos absolutos) and must be annulled so that, upon deciding the matter in accordance with the applicable law, the appellant [Nombre012] may be acquitted.

Fourth Section.- Lack of reasonableness, balance, and proportionality in sentencing. The majority opinion fails to state the grounds for imposing the maximum sentence on [Nombre012] and contradicts the unanimous determination regarding the allocation of liability in the civil claims, thereby violating the rules of sound judicial reasoning (sana crítica) and causing irreparable harm (gravamen irreparable), because the absence of supporting grounds renders the sentence imposed arbitrary. Should the conviction against him be affirmed—despite the serious objections raised—he requests that the sentence be adjusted to the minimum and that he be granted the benefit of conditional execution of the sentence (beneficio de ejecución condicional), since the sentence imposed by the majority is plainly disproportionate, manifestly excessive, and unjust. The female judges fault him only for his status as a former president, but do not attribute control over the act (dominio del hecho) to him; they merely characterize him as an instigator, even though the Prosecutor’s Office itself stated in its closing arguments that [Nombre026] was the perpetrator with full control over the act.

Factors favorable to him were not taken into account, such as his age, his conduct before and after the alleged offense and throughout the proceedings, all the humiliation he endured, and his submission to the Administration of Justice, which is not the same as refusing to exercise his right to a defense: “In short, the female judges do not explain why I deserve to receive the maximum rather than the minimum sentence, nor why they deny the benefit of conditional execution when all the objective and subjective requirements for its application are met: I am a first-time offender, I have a family, and I work as an instructor at the Universidad de Costa Rica despite being retired” (cf. folios 172666 to 172670).

Fifth Section.- Relief Requested. Dr. [Nombre012] organizes the claims in his appeal as follows:

"1) That each and every request raised in this appeal against the judgment (recurso de apelación de sentencia) be GRANTED." "2) That the CHALLENGED judgment entered against me be vacated and that, based on an assessment of the evidence received at trial and the evidence requested for this appeal, I be acquitted of all punishment and liability, because, as established in Sections Three D and E, the violations of due process (debido proceso)—which entail violations of substantive constitutional law, the international human rights treaties applicable in Costa Rica, and criminal law—subconsciously caused the Honorable Judges to commit all the violations of substantive and procedural law during the proceedings identified in those sections. The Court hearing this appeal against the judgment may thus remedy the violations of substantive law expressly identified in Sections One, Two, Three, and Four by entering a judgment of acquittal in my favor, given the absence of any evidence whatsoever establishing the acts alleged against me." "3) That, in the alternative to the second request, I be acquitted or the proceedings against me be dismissed (sobresea) for the reasons stated in Section Two F, as proposed by Judge Jorge Camacho, and because the evidence on which the accusation and the judgment of the Honorable Judges in their majority opinion are based is unlawful.

That evidence 588 thus be declared unlawful, from which 'it is concluded that none of the allegations can be deemed proven, because all of the evidence gathered in the proceedings is unlawfully obtained evidence (prueba ilícita), as the entire investigation derives from one—or, rather, several—constitutional violations in obtaining the evidence that guided the investigation from its inception, and because there is no possibility of excluding the application of the fruit of the poisonous tree doctrine, such as an independent source of the evidence or its inevitable discovery, nor any other exception precluding application of the exclusionary rule for unlawfully obtained evidence, under which evidence obtained directly through a constitutional violation must be excluded from the proceedings, as must all evidence indirectly derived from the unlawfully obtained evidence, which in these proceedings constitutes the entirety of the evidence.' (opinion of Judge Camacho, page 1943 of the judgment, second part)" "4) That, in the alternative to the third request, I be acquitted or the proceedings against me be dismissed for the reasons stated in Section Three A, because the only evidence against me originated from an illegitimate opportunity criterion (criterio de oportunidad).

That the ruling of Judge Jorge Camacho regarding the opportunity criterion likewise be adopted; insofar as I am concerned, it concludes: 'Accordingly, for the reasons stated in connection with the opportunity criterion, co-defendant [Nombre012] must also be acquitted of all punishment and liability for his participation as the instigator of the offense of aggravated corruption, in the form of improper bribery, in relation to [Nombre026].' (Opinion of Judge Jorge Camacho, pages 1.996,1997 of the judgment, second part)." "5) That, in the alternative to request four, the judgment against me be vacated and I be acquitted because, even if [Nombre026]'s statement were accepted as lawful—which, we reiterate, IS NOT EVIDENCE—and the opportunity criterion is illegitimate, the sole basis for the majority opinion against me would be that statement by [Nombre026], and there is a complete absence of any evidence supporting his statement, as has been explained and on the basis of the legal violations asserted" "6) That, in the alternative to request five, the conviction entered against me in the judgment under appeal be vacated and that I be declared innocent, since [Nombre026] acknowledges that, when faced with ALCATEL's alleged proposal, he 'ACCEPTED IT IN PRINCIPLE,' such that the offense would already have been COMPLETED at that same location, Restaurante [...], before he supposedly met with me at my home, which, I repeat, did not occur.

Accordingly, that I be acquitted AS THE ALLEGED INSTIGATOR, because A PERSON WHO IS ALREADY DETERMINED TO ACT CANNOT BE INSTIGATED." "7) That, in the alternative, if it is not deemed appropriate to acquit me, the trial be vacated in its entirety and a retrial be ordered, excluding all unlawful evidence, the facts erroneously deemed proven, and the erroneous legal reasoning." "8) That the dissenting opinion of Judge Camacho be adopted, that the statute-of-limitations defenses (excepciones de prescripción) be sustained in my favor, and that, in the event the offense is reclassified, that statute of limitations be applied to me." "9) That, in the alternative, if none of Judge Camacho's conclusions regarding evidence 588 and the opportunity criterion are accepted, it be determined that the statement of confessed defendant [Nombre026] does not establish any proven fact showing my participation, as an instigator or in any other manner, in [Nombre026]'s offense of aggravated corruption in the form of improper bribery.

And that the statute of limitations be applied to me." "10) That, in the alternative to request number nine, the sentence imposed on me—unlawfully set at the upper limit of the prescribed penalty—be adjusted, when it has become evident not only that the alleged conduct attributed to me is far less blameworthy than that of the principal ([Nombre026]), who has been granted absolute impunity, but also that attributing criminal instigation to me is legally inapplicable (atípica), when it is evident that, from the very moment of the alleged offer, [Nombre026] states that he 'accepted' it and that only afterward, while later considering at home the implications of the offer he had accepted, did he decide to consult me in case matters became complicated—something that never occurred. Thus, if [Nombre026] bears no liability, and I neither caused him to act nor, much less, assisted him, the sentence imposed—again, at its upper limit—is disproportionate. That, in the event, inconceivable to me, that I am convicted, the sentence be set at its lower limit and I be granted the benefit of a suspended sentence (ejecución condicional).

Finally, still with respect to Dr. [Nombre012], it must be added that, at folios 173372 and 173373 of Volume XL, there is a letter from him addressed to the President of the Corte Suprema de Justicia, Dr. Luis Paulino Mora Mora, in which the appellant requests a guarantee that he will be tried by the judge prescribed by law (juez natural), selected through a public drawing.

II. THE APPEAL OF DR

[Nombre012] IS DECIDED.- On 15 de octubre de 2004, while serving as Secretary General of the Organization of American States and enjoying the prerogatives inherent in that high office, Dr. [Nombre012], of his own volition, returned to our country to submit to the “natural judge” (juez natural), to answer for the acts in this criminal case for which he was under investigation, to assist in ascertaining the actual truth (verdad real), and thereby seek to establish clearly that he is innocent, as he himself explained to this chamber during the oral hearing held between 5 a 7 de noviembre de 2012 (cf. audiovisual recording on DVD, files c000012110515000.vgz and c0000121105160000.vgz, from 15:47:00 to 16:47:29). Throughout these proceedings, Mr. [Nombre012] denied all charges brought against him and maintained that the acts attributed to him by the Public Prosecutor’s Office were untrue. In exercising his right to a substantive defense (defensa material)—which must be recognized and guaranteed equally to every human being—Mr. [Nombre012] explained that the money he received from [Nombre026] related to a simple loan made to him by that individual, which he had already repaid through judicial deposits.

After conducting a comprehensive review of the judgment of conviction entered against him, it is clear to the judges subscribing to this opinion that the Public Prosecutor’s Office was unable to prove that Dr. [Nombre012] had engaged in the conduct attributed to him in the indictment, or that the defense he offered to justify his conduct was false. The judgment of conviction issued by the majority of the trial court is untenable, both formally and substantively, because of its manifest lack of legal basis and criminal action. Our current Political Constitution, in force since 1949, guarantees that no person shall be subjected to a criminal penalty without the necessary proof of guilt (article 39 of the Political Constitution). Under the laws of the Republic, because Dr. [Nombre012]’s guilt has not been proven and his substantive defense has not been rebutted, the presumption of innocence (presunción de inocencia) guaranteed to every person accused of a crime by our Political Constitution and international human-rights instruments remains intact, particularly articles 11 subsection 1° of the Universal Declaration of Human Rights (UN General Assembly of 10 de diciembre de 1948); 26 first paragraph of the American Declaration of the Rights and Duties of Man (Ninth International Conference of American States of 5 de mayo de 1948); 14 subsection 1° of the International Covenant on Civil and Political Rights (approved by Ley N° 4229 de 11 de diciembre de 1968); and 8 subsection 2° of the American Convention on Human Rights (known as the Pact of San José, approved by Ley N° 4534 del 23 de febrero de 1970), provisions that apply immediately and directly to this matter and that even take precedence over statutes, pursuant to article 7 of our Political Constitution.

In addition to asserting his innocence, Mr. [Nombre012], also in the legitimate exercise of his substantive defense, personally filed the appeals against the judgment of conviction described in the preceding Considerando (I) of this decision, in which he alleged numerous errors of form and substance, some relating to the judgment and others to earlier stages of the proceedings. Of all the issues raised by Dr. [Nombre012] for the comprehensive review of the judgment of conviction issued by the majority of the trial court, it is evident that certain defects do indeed render that majority judgment null and void (whether those defects are considered independently or collectively).

These defects, which by themselves entail the nullity of the entire decision, concern the determination of the facts deemed proven (A) and the fact that the criminal action was extinguished because the statute of limitations (prescripción) had run (B), as explained below. A) Defects in the process of determining the facts deemed proven: First, procedural errors are apparent in the process followed to determine the facts deemed proven, because that determination was based essentially on unlawfully obtained evidence (prueba ilegítima) and because the examination and assessment of the evidence violated the rules of sound judicial reasoning (sana crítica). Consequently, the judgment lacks a basis that could reasonably justify it, a defect that violates article 39 of the Political Constitution, under which every criminal conviction is contingent upon the necessary proof of guilt. A.1.- Tainted evidence (prueba espuria).

Evidence obtained unlawfully may not lawfully be admitted into the proceedings, pursuant to the rule established in the first paragraph of article 181 of the Code of Criminal Procedure, which clearly states: “Items of evidence shall have value only if they have been obtained by lawful means and admitted into the proceedings in accordance with the provisions of this Code.” Under article 180 of that same statutory text, “The Public Prosecutor’s Office and the courts have a duty, on their own initiative, to seek to ascertain the truth through the permitted means of evidence...,” which must be understood in light of the general principle set forth in article 175 of that same body of law concerning defective procedural acts (actividad procesal defectuosa):

“Acts performed in disregard of the forms and conditions prescribed by the Constitution, the International or Community Law in force in Costa Rica, and this Code may neither be assessed as grounds for a judicial decision nor used as predicates thereof, unless the defect has been cured in accordance with the rules governing the correction of judicial proceedings.” Our Constitutional Chamber extensively developed the general right to legality, stating:

“Although the principle of legality and the corresponding right of all persons to legality—and, of course, above all, to constitutional legality and legitimacy—appear to concern substantive rather than procedural issues, they nevertheless have significant implications for due process, even in its strictly procedural sense.” “In the broadest terms, the principle of legality under the rule of law establishes a special form of subordination of public authorities and institutions to the legal system, based on the fundamental premise that every public authority or institution exists as such and may act only insofar as the legal system itself empowers it to do so, ordinarily through express provisions—for public authorities and institutions, only that which is expressly authorized by the Constitution and the law is permitted, and anything not so authorized is prohibited—together with its two most important corollaries, still within a general framework: the principle of minimum regulation, which entails special requirements in procedural matters, and the principle of statutory reservation (reserva de ley), which is nearly absolute in this field.

In our Political Constitution, the general principle of legality is enshrined in article 11 and also arises from its relationship with article 28, which embodies the general principle of freedom—for private persons—and guarantees statutory reservation for its regulation, and with article 121, particularly insofar as it grants the Legislative Assembly exclusive powers to enact legislation (subsections 1, 4 and 17), to establish courts of justice and other public bodies (subsections 19 and 20), and to provide for the collection, allocation, and use of public funds (subsections 11, 13 and 15); powers that may neither be delegated nor, consequently, shared with any other branch, body, or entity (article 9), and that give rise to even more explicit consequences, such as those set forth in the General Law of Public Administration, principally in articles 5 and 7 thereof—which define normative hierarchies—11—which enshrines the principle of legality and its corollary of minimum regulation—and 19 and 59.1—which reaffirm the principle of statutory reservation for the regulation of fundamental rights and the creation of public powers having external effect.

It should likewise be borne in mind that, in Costa Rica, such statutory reservation is confined to formal statutes enacted by the legislative body, because any delegation among the branches of government is constitutionally prohibited (art. 9), thus rendering acts having the force of law inconceivable, at least under normal circumstances.” “It is by virtue of the presence of all these elements of the principle of legality that virtually all procedural matters are reserved to formal statutes, that is, to rules enacted by the legislative body through the procedures for enacting laws, to the complete exclusion of autonomous regulations and the nearly complete exclusion even of executive regulations implementing statutes; likewise, procedural law must be sufficient to govern the exercise of the judicial function and the activities of the parties before the courts, such that no significant gaps remain to be filled by regulations or subjective judgment; and, finally, the requirements of procedural law must be guaranteed both material and formal effectiveness, to such an extent that, in this field, violations of mere legality automatically become, by virtue of the principle, violations of due process and therefore attain constitutional status.” (emphasis added, Constitutional Chamber, N° 1739-92 de las 11:45 horas del 1 de julio de 1992).

However, the facts that the majority of the trial court found to have been established were derived essentially from two unsuitable sources: on the one hand, they were derived from unlawfully obtained evidence (prueba ilegítima)—evidence obtained illegally—specifically, the so-called “evidence 588” (documentary evidence). On the other hand, the facts were also derived from the testimony of the accused (imputado) [Nombre026], but that testimony was erroneously analyzed and weighed by the trial court. The erroneous consideration of those two sources of knowledge invalidates the determination of the fact found to have been established (because, moreover, there are no other distinct, lawful, and suitable items of evidence from which the existence of the alleged fact may be inferred), as explained below. a.- The unlawfulness of “evidence 588,” which gave rise to the case known as «Caja-Fischel» and to the present matter.

Documentary evidence N° 588 is a certified copy of the Judicial Assistance from the Republic of Panama, which was obtained at the request of our Procuraduría General de la República from the Director Nacional de Ejecución de Tratados de Asistencia Legal Mutua y Cooperación Internacional del Ministerio de Gobierno y Justicia de la República de Panamá. It contains banking information concerning the Panamanian company Marchwood Holdings and was obtained without a court order (and therefore stands in the same position as other evidence brought into the proceedings under identical circumstances, which the trial court itself confirmed was unlawfully obtained evidence, by ruling issued at 8:00 hours on 14 de mayo de 2010, cf. Volume XXVII, pages 13352 through 13408 verso, rejecting the Ministerio Público’s request that such other evidence be declared lawful and admitted for presentation at trial, after it had been excluded by the judge at the intermediate stage).

Evidence N° 588 is essential in this matter because it enabled the Ministerio Público to learn of the existence of Servicios Notariales Q.C.S.A. and, on that basis, to request the lifting of bank secrecy (levantamiento de secreto bancario) concerning that company within the Sistema Bancario Nacional; this encompasses all the evidence obtained concerning Servicios Notariales Q.C.S.A. through Banco Cuscatlán de Costa Rica, Cuscatlán International Bank, or Grupo Cuscatlán, as well as, in general, all evidentiary activity originating in the constitutional violation related to evidence N° 588. Counsel for the accused agree that there is no independent source predating the constitutional violation from which the evidence could have been obtained, and that it could not have been inevitably discovered either; accordingly, there is no basis for an exception to the exclusionary rule for unlawfully obtained evidence (regla de exclusión de la prueba ilícita).

The Ministerio Público, by contrast, considers evidence N° 588 lawful on the basis of [Nombre032]’s consent to its use. The majority of the trial court held that evidence 588 is lawful and devotes a substantial portion of Ground II (Considerando II) of the judgment to justifying that position (in the subsection entitled «Objections to evidence N° 588 and all banking documentation obtained from the ‘Caja-Fischel’ case, brought into these proceedings and derived from the aforementioned evidence»), noting that, in any event, the same information derives from the statement of [Nombre032] (whom it considers the sole holder of the right to privacy regarding that banking information and who consented to its use), based on case-law criteria of the Supreme Court of the United States of America (cf. judgment, pages 889 through 952). By contrast, Judge Camacho Morales’s dissenting opinion begins precisely with the analysis and assessment of evidence 588, which he considers to have been obtained unlawfully and therefore unavailable as a basis for the judgment because it was obtained without a reasoned order from a judge (cf. judgment, dissenting opinion, pages 1903 through 1943).

He explains that the right-holder’s consent must precede the act, according to the scholarly doctrine of Professor Francisco Castillo Gonzáles and the case law of the Sala Tercera (rulings N° 111 at 8:40 hours on 26 de marzo de 1993 and N° 604-2008 at 12:10 hours on 23 de mayo de 2008) and of the Tribunal de Casación Penal (N° 308 at 17:00 hours on 7 de abril de 2008), and notes that although one ruling of that same Chamber, invoked by the Ministerio Público in its favor, appears to contradict this proposition, it is not a case that faithfully reflects the prevailing criterion (specifically, ruling N° 232 at 17:00 hours on 11 de marzo de 2011, which was issued by substitute justices). He also clarifies that this defect cannot be cured (saneamiento) through [Nombre032]’s subsequent consent:

«In the present matter, it is evident that [Nombre032]’s consent was subsequent, rather than prior, to the infringement of the constitutional right to privacy, because approximately six years after the evidence had been obtained unlawfully, without a judge’s order, as this Court held in its ruling issued at 8 hours on 14 de marzo de 2010, the Ministerio Público, aware of this Court’s position, approached the purported legal representative of the aggrieved company (Marchwood Holding), Mr. [Nombre032], and asked him to consent to the use in these proceedings of the evidence obtained illegally in Panama concerning the company he represented and, through his consent, to validate both the manner in which it had been obtained and the use made of it during stages of the proceedings preceding the trial; Mr. [Nombre032] agreed by signing the document admitted as documentary evidence N° 759, dated 17 de mayo de 2010, three days after the aforementioned ruling of this Court.

That consent does not satisfy the minimum requirements for it to operate as a justification (causa de justificación) and eliminate the criminal nature of the Ministerio Público’s intervention. Admitting the aforementioned evidence would permit the State to benefit from acts of its officials—which could be criminal—to prosecute and criminally convict citizens, thereby forfeiting all ethical legitimacy to impose a penalty.» (Judgment, page 1923).

Judge Camacho Morales links this issue to the case law of the Sala Constitucional concerning the principles of breadth of evidence and legitimacy of evidence:

«a) The principle of breadth of evidence (principio de la amplitud de la prueba): Given that the purpose of the proceedings is above all to ascertain the true facts, both the Ministerio Público and the judge have a duty to investigate that objective truth diligently, without disregarding any lawful means of proof, particularly when evidence offered by the defense is not manifestly irrelevant, and even ordering, for a more informed decision, any evidence that may be necessary, even if offered irregularly or out of time. In criminal matters, anything may be proved by any lawful means, which necessarily entails an absolute prohibition against relying on unlawful means of proof and against attributing any formal or substantive significance to them, should they in fact exist.» «b) The principle of legitimacy of evidence (principio de legitimidad de la prueba): What was last stated raises, incidentally, a difficult issue that lies at the heart of the case giving rise to this consultation, namely unlawfully obtained evidence, its formal treatment, and its assessment—an issue on which criminal and constitutional scholarship and case law have yet to reach a consensus.

Nevertheless, this Chamber has already been adopting a position that, while not unanimous, is at least consistent, based on the hypothetical suppression of tainted evidence (supresión hipotética de la prueba espuria), in the sense that, in addition to denying it any evidentiary value in itself—on which there appears to be no dispute—it must be removed from the proceedings; that is, it must be assumed never to have existed, and other evidence, not unlawful per se, must also be invalidated insofar as it was obtained through that evidence. The differences between the majority and minority of the Chamber have instead concerned the nuance and degree attributed to the aforementioned principle of hypothetical suppression; it may therefore be said that this is the criterion supported by the erga omnes binding force of the precedents and case law of the Constitutional Jurisdiction, as prescribed by Article 13 of its Law—in this regard, see, among many others, judgments Nos. 802-90, 1298-90, 1345-90, 1417-90, 1855-90, 280-91, 556-91, 701-91, 885-91, 1409-91, and 1578-91.» (emphasis not in the original, Sala Constitucional, N° 1739-92 at 11:45 hours on 1° de julio de 1992).

«In its decisions, this Chamber has also stated that incriminating evidence cannot be assigned that sole purpose [establishing the guilt of the accused with certainty], but must also serve as a guarantee that a fair trial will be conducted, eliminating judicial arbitrariness, since the fundamental right to the presumption of innocence may be rebutted only through evidentiary activity conducted in compliance with fundamental rights» (Sala Constitucional, N° 2001-7341 at 14:38 hours on 12 de setiembre de 2001).

«Among the various interpretations regarding whether evidence is unlawful, we find the tainted-evidence doctrine (teoría de la prueba espuria). The tainted-evidence doctrine, or fruit-of-the-poisonous-tree doctrine (teoría de los frutos del árbol envenado) (fruit of the poissones tree doctrine), provides that whenever a means of proof originating in a constitutional violation contributes evidence of the accused’s guilt, the act that produced the evidence and every means of proof derived from it are null and void. Along the same lines, there is the qualified position known as the ‘independent-source doctrine’ (fuente independiente), under which, if evidence derives from an act that violated constitutional guarantees but also originated in another autonomous item collected during the investigation before the constitutional violation, the evidence remains valid because it derived from that other item and not necessarily from the act that violated the Constitution.

In ruling 701-91, this Chamber already stated: ‘...the position of the majority of the Chamber concerning the validity of evidence related to unlawful evidence may be summarized by stating that the former retains its validity insofar as it did not originate in the latter’; it is therefore understood that the causal chain producing the evidence must be examined, and evidence deriving exclusively from a violation of the Constitution is tainted and null and void» (emphasis not in the original, Sala Constitucional, N° 02529-94, cited in N° 2005-04707 at 15:03 hours on 27 de abril de 2005).

Judge Camacho Morales thus concludes that not only is evidence n° 588 null and void, but so is all other evidence that originates in or derives exclusively from it, and that, applying the method of hypothetical suppression of unlawfully obtained evidence, the alleged fact must be deemed unproven because there are no other independent or autonomous items of evidence predating the violation of the Constitución Política. Judge Camacho Morales explains that the Ministerio Público’s own charging instrument (acusación) confirms that it was the evidence obtained in Panama concerning Marchwood Holding that led to the discovery of Servicios Notariales Q.C.S.A. (cf. alleged fact n° 190 on page 45), and adds:

“In the preceding fact [No. 190, page 45], it is clear—and the Ministerio Público itself so states—that it was the evidence obtained in Panamá that led to the discovery of Servicios Notariales Q.C.S.A., and that this evidence formed the basis of the reports published by the media concerning Servicios Notariales Q.C.S.A.; this is precisely the evidence declared unlawful evidence (prueba ilícita) in this majority opinion. It is also evident that information was being transferred from the Ministerio Público to the media in flagrant violation of the duty of confidentiality (deber de privacidad) established in numeral 295 del Código Procesal Penal y 22 inciso 3 de la Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones [Ley N° 7425], conduct that could constitute the offense of disclosure (delito de divulgación) established in numeral 24 de la misma Ley” (Judgment, page 1939).

Judge Camacho Morales also notes that, based on the statement of [Nombre032], it can be clearly established that, on that person’s part, with respect to the purportedly represented entity Marchwood Holding, there was never prior and express consent for obtaining documentary evidence (prueba documental) N° 588; rather, that authorization was given several years after the evidence had been obtained in Panamá (cf. Judgment, pages 1939 to 1940). He then concludes:

“...none of the facts alleged in the indictment (acusación) can be deemed proven because all the evidence gathered in the proceedings is unlawful evidence, since the entire investigation arose from one—or, rather, several—constitutional violations in obtaining the evidence that guided the investigation from its inception, and because there is no possibility of avoiding application of the fruit-of-the-poisonous-tree doctrine (doctrina de los frutos del árbol envenado), such as through an independent source of the evidence or its inevitable discovery, nor is there any other exception that would preclude application of the exclusionary rule for unlawful evidence (regla de la exclusión de la prueba ilícita), under which evidence obtained directly through a constitutional violation must be excluded from the proceedings, as must all evidence indirectly derived from the unlawful evidence—which, in these proceedings, encompasses all the evidence.” “The foregoing is sufficient reason to acquit all the accused (imputados) of all punishment and liability, given the impossibility of establishing, through lawful evidence, any connection between the monies that, according to the indictment, they received and Servicios Notariales Q.C. and Alcatel Cit.” The challenged judgment was issued on 27 de abril de 2011, and a few days later the Sala Tercera de la Corte Suprema de Justicia issued the judgment resolving the cassation appeals (recursos de casación) that had been filed in the case known as “Caja-Fischel” (expediente judicial N° 04-005356-0042-PE).

By majority decision, Justices Ramírez, Pereira, and Chinchilla declared null and void all evidence gathered in Panamá under the Treaty on Mutual Legal Assistance in Criminal Matters (Tratado de Asistencia Legal Mutua en Asuntos Penales) among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panamá (T.A.L.M.), as well as all evidentiary elements directly dependent upon it (cf. Sala Tercera, No. 499 de 11:45 h. del 11 de mayo de 2011, folios 14004 a 14014, 14042 a 14043 y 14541 del expediente N° 04-005356-0042-PE; Justices Arroyo and Víquez issued dissenting opinions), which, in our view, definitively resolves the dispute concerning the legitimacy of this documentary evidence, consistently with the position stated by Judge Camacho Morales and with the view of this appellate court (Cámara de apelación). The Sala Tercera states:

«Regarding the challenge to the validity of the evidence from Panamá:

By a majority consisting of Justices Ramírez Quirós, Pereira Villalobos, and Chinchilla Sandí, this aspect of the claim, also raised through the second ground of appeal (motivo de apelación), is granted, and the evidence gathered in Panamá through the Treaty on Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panamá (T.A.L.M.), as well as all evidence directly derived therefrom, is declared null and void. To analyze the appellants’ claim, we must first go back to the origins of the 1996 reform of the Code of Criminal Procedure (Código Procesal Penal), which is founded on respect for human rights, whether those of the accused or of the victim. With respect to the accused, which is the issue under discussion, the presumption of innocence (principio de Inocencia) is established as a fundamental principle, from which derives, among other things, the requirement of a prior trial (juicio previo) and that the proceedings be those governed by the Code.

This is also established by the Universal Declaration of Human Rights, Article 11; the International Covenant on Civil and Political Rights, Article 14; and the American Convention on Human Rights, Article 8, subsection 2. Because all these treaties concern fundamental human rights, they are and must be analyzed as taking precedence over any treaty on mutual legal assistance among countries, as provided in Article 2 of the Treaty on Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panamá. Returning to the background of the Code of Criminal Procedure currently in force, one of the fundamental aspects it embraces is respect for due process (Debido Proceso), with particular emphasis on the inviolability of the right to a defense (Inviolabilidad de la Defensa) (Article 39 of the Political Constitution). For this reason, we have quite rightly stated that the reform in question is nothing more than the constitutionalization of criminal procedure law (constitucionalización del Derecho Procesal Penal).

Under this conception, the legislature determined that criminal investigations should be directed by the Ministerio Público, precisely to ensure greater control over the manner in which evidence is introduced into the proceedings, in strict compliance with the Constitution and the law. In other words, the Ministerio Público, which is responsible for investigating crime, must direct the actions of investigating officers so that evidence may be introduced into the proceedings through all lawful means available to it. This entails an absolute prohibition on relying upon unlawfully obtained evidence (medios de prueba ilegítimos), to which the judge consequently may not attribute any formal or substantive effect, because the rules of procedure under no circumstances tolerate the sacrifice of the constitutional safeguards protecting citizens in favor of the search for truth in criminal proceedings (in this regard, the Organismo de Investigación Judicial, the Ministerio Público, and the judge must adhere strictly to the Constitution, international human-rights treaties, and the law), since the legitimacy and lawfulness of acts become the sole valid criterion that the judge may consider when deciding a specific case. Any contrary conclusion means that the hierarchical superior is required, even sua sponte (de oficio), to declare the procedural act ineffective.

In this specific case, although the evidence obtained in the Republic of Panamá was obtained in accordance with that country’s domestic laws—which, because of the constitutional status of the Ministerio Público prior to the reform of Panamá’s Code of Criminal Procedure in two thousand eight, granted it the authority to lift bank secrecy (levantar el secreto bancario) without judicial authorization in the course of an investigation in that country—and therefore, as stated in the appealed judgment, the procedure carried out there did not violate Panamanian domestic law, meaning that the evidence was lawfully obtained under that legal system, there is a serious initial procedural defect that occurred in Costa Rica. Specifically, the application of the Code of Criminal Procedure requires the Ministerio Público to submit the request to lift bank secrecy to the Guarantees Judge (Juez de Garantías) in order to seek, through the Central Authority (Autoridad Central) (pursuant to the Treaty on Mutual Legal Assistance), assistance in obtaining from that country evidence entailing an intrusion into the privacy of the persons’ accounts and private correspondence.

In our view, this absolute procedural defect (defecto procesal absoluto) was overlooked by all the authorities involved in proceeding number 04-005356-042-PE, on the grounds that, because the Ministerio Público in Panamá is authorized to perform the act, the Ministerio Público in our country may claim for itself the right to request directly from the Central Authority (Procuraduría General de la República) that the measure be carried out, without any need for an assessment by the Guarantees Judge. In our view, this interpretation cannot under any circumstances be endorsed by those of us appointed as the final instance to which the parties may resort to secure satisfaction and protection of their clients’ fundamental rights.

It cannot be acceptable in our democratic state governed by the rule of law (Estado Democrático de Derecho) that, for the sake of promptly trying persons accused of allegedly committing criminal acts, regardless of the person concerned, those who at that particular time exercised functional direction of the proceedings within the Ministerio Público should arbitrarily and unlawfully trample upon, through a mistaken interpretation of unlimited powers, the rights afforded to persons accused of committing a crime from the very moment they are deemed suspected of committing that criminal act. It is clear that our democratic system, through its legal system, has made the wise decision to entrust the competent judicial body with safeguarding fundamental rights—including the right to privacy, the confidentiality of communications, and the inviolability of private documents. For this reason, it permits restrictions on those rights only under exceptional and previously established circumstances, specifically for the adjudication of matters submitted to the Courts of Justice, in which the judge may order that such confidentiality be lifted.

In the present case, that judicial assessment was required before requesting that the Central Authority, pursuant to the aforementioned treaty, duly process the request for assistance sought by the Ministerio Público in order to bring documentary evidence from Panamanian banks into the investigation. This is so because the judge must weigh the necessity, usefulness, relevance, and proportionality of the request submitted by the body responsible for the investigation. It is important to note here that the interpretation adopted in these proceedings by the Ministerio Público is erroneous. In our understanding, that body must be the first to have a clear grasp of its role and investigative powers, within the limits conferred upon it by the Constitution and the law in force, so as not to take action that it should have known disregarded the limits imposed upon it by the legal system when it directly requested that the Procuraduría General de la República duly process a request for assistance addressed to Panamá.

That request should first have been authorized by the Guarantees Judge, since it entailed infringing the fundamental rights of persons subject to proceedings in our country and since, as every justice-system official in Costa Rica knows, ordinary legislation requires that: a) the order be duly reasoned; b) where possible, the documents upon which the decision is to be executed, the name of the person possessing them, and the place where they are located be individually identified; and c) criminal activity constitute a prerequisite, with a verified indication that it was committed. All these matters require a prior assessment of the necessity, suitability, and proportionality of the request, which the Ministerio Público should have submitted to the judicial authority. It would be a gross error to conclude, as the court below (a quo) does and as the minority of this Chamber endorses, that this entails issuing an order to the Panamanian authorities.

Quite the contrary, it constitutes approval by the Costa Rican judicial authority so that our country’s Central Authority, pursuant to the repeatedly cited treaty, could proceed as stipulated before the competent authority in Panamá.

The foregoing is not a mere formality; it is the procedural act that, under domestic law, legitimizes the authorized intrusion into a person’s private sphere, because neither the Attorney General nor the representatives of the Ministerio Público have the function or authority to request and obtain access to individuals’ confidential information without prior authorization from the judge responsible for ensuring respect for the fundamental rights of citizens subject to proceedings. This follows from Article 24 of the Political Constitution; Article 12 of the Universal Declaration of Human Rights; Article 11, subsections 2 and 3, of the American Convention on Human Rights; and Article 17 of the International Covenant on Civil and Political Rights, all of which are incorporated into Articles 2 and 3 of the Law on the Search, Seizure, and Examination of Private Documents and the Interception of Communications (Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de la Comunicaciones), Nº 7425 (a law that even criminally penalizes noncompliance), and Article 107 of the Organic Law of the Judiciary (Ley Orgánica del Poder Judicial).

The authority granted to the Ministerio Público by Articles 226 and 290, final paragraph, of the Code of Criminal Procedure to request reports from private persons or public entities applies, as stipulated, only insofar as the information is not private information protected by Article 24 of the Political Constitution. Otherwise, under the second paragraph of Article 181 of the CPP, it entails a violation of due process through infringement of the fundamental right to the privacy of private documents.

The purpose of the Treaty on Mutual Legal Assistance is to strengthen and facilitate cooperation among the region’s justice-administration bodies through an instrument that permits assistance in criminal matters. It is clear, however, that such assistance must be provided with full respect for the domestic legislation of each Member State; what the treaty replaces is the cumbersome consular procedure, in order to streamline communication channels. Its contents cannot under any circumstances affect the system of safeguards applicable in the country. Indeed, its preamble expressly establishes that such assistance is provided with full respect for the domestic legislation of each State.

As mentioned at the beginning of this opinion (voto), the possibility of streamlining procedures cannot become a blank check for arbitrariness, abuse of authority, and disregard for constitutional safeguards and the domestic legal order in force. It is not legitimate that, as occurred in the present case, representatives of the Ministerio Público should even travel to another country in order to be present while the evidence is collected, yet fail to take the minimal amount of time necessary to properly submit the request to the appropriate judicial authority. This results in the sacrifice of evidence essential to deciding the case before the Costa Rican courts, because the act performed in violation of due process must be declared ineffective, while also consuming time and money that all Costa Ricans must bear.

On previous occasions, this Chamber has declared actions taken in similar procedural acts (actos procesales) ineffective where the Public Prosecution Service (Ministerio Público), in carrying them out, has acted contrary to law, with highly regrettable consequences for the proper administration of justice. In this regard, as noted at the outset, regardless of the person subject to the proceedings, the law is equal for all. Accordingly, the objective is not to secure a conviction at all costs, but rather one resulting from the proper admission of evidence (prueba) into the proceedings, in accordance with the Constitution and the law in force in the country, and its subsequent assessment in strict adherence to the rules of sound judicial discretion (sana crítica). Thus, the prosecuting authority must be the first party interested in presenting a case to the court, not only with the possibility of prevailing on its theory of the case in the adversarial trial because it possesses sufficient evidence, but also with evidence that is effective because, in gathering it, the constitutional guarantees protecting the person subject to the proceedings were respected.

Regarding this issue, legal scholarship has maintained: “…In our legal system, the constitutional structuring of procedural rules has always been a subject of debate. Thus, for example, information obtained in violation of constitutional guarantees may not be used; consequently, article 96 of the NCPP makes the validity of the act conditional upon respect for the person’s fundamental rights, unless ‘it benefits the accused’ (Art 181 NCPP). The prevailing doctrinal position remains that irregularities of this kind cannot be cured (convalidación) pursuant to article 178 NCPP and must be declared by the Judge on the Judge’s own motion whenever they entail a failure to observe rights and guarantees established not only in the Constitution, but also in the applicable International or Community Law.” (ARMIJO SANCHO, Gilberth, Garantías Constitucionales, Prueba Ilícita y Transición al Nuevo Código Procesal Penal.

Premio Anual. Alberto Brenes Córdoba, página 127). Consistent with this position, national case law has embraced the “fruit of the poisonous tree” doctrine, under which evidence obtained as the result of unlawfully obtained evidence has no probative value whatsoever. It is important to reaffirm that, notwithstanding the supralegal rank held by the TALM, this does not place it above the Political Constitution, since that status is attained only by human rights treaties (article 48 of the Political Constitution). In conclusion, the evidentiary materials obtained and introduced into the criminal proceedings brought against [Nombre032], [Nombre037], [Nombre021], [Nombre038], [Nombre039], known as [Nombre040], and [Nombre041], through the letters rogatory (cartas rogatorias) sent to Panamá and the supplements thereto, without observing the constitutional and legal guarantees governing requests for their procurement under Costa Rica’s domestic legal order, constitute spurious evidence unlawfully incorporated into the proceedings.

By reason of an absolute defective procedural act (actividad procesal defectuosa de carácter absoluto), they are declared ineffective, as are the other evidentiary materials derived directly therefrom, specifically: the documentary evidence obtained through the Letters Rogatory sent to Panamá and the supplements thereto; the examination statement of [Nombre032], insofar as it is based on the evidence from Panamá; the testimony of [Nombre042], a Panamanian prosecutor, [Nombre043], an assistant in the Panamanian Prosecutor’s Office, and [Nombre044], Director of the Office for Implementation of the Treaty on Legal Assistance, all witnesses who refer to the evidence declared ineffective with respect to its content and the manner in which it was obtained; OIJ Report Nº 200- DEF-495-04-06, insofar as it refers to the evidence from Panamá; and the testimony of the expert witnesses (peritos) from the Organismo de Investigación Judicial, [Nombre045] and [Nombre046], insofar as it pertains to the evidence in question.

Lastly, it is appropriate to examine the curing by the court below (a quo), at hearing number 156 of the trial, of all evidence based on the letters rogatory sent to Panamá and the supplements thereto, with the Court grounding its decision on the “authorization” given by the accused [Nombre032] when providing his examination statement; such curing is absolutely unlawful. First, because several of the accused filed the motion concerning the Defective Procedural Act, on the ground that their fundamental rights had been affected because the procedural act through which the evidence was obtained failed to observe due process (Debido Proceso); the fact that Mr. [Nombre032] himself withdrew his motion concerning the Defective Procedural Act, an action also taken by his defense counsel, cannot cure an act affecting other co-accused in the case whose fundamental right to the privacy of their documents was violated.

The case law of this Chamber cited in the dissenting opinion has no bearing whatsoever on the issue raised here, because in that case there was no infringement of the fundamental rights of other persons involved, and the evidence was relevant only to proving a fact between the person authorizing it and the victim. Moreover, authorization dispensing with the required intervention of the Judge is valid only insofar as it is given before the procedural act is performed; in this regard, see the first paragraph of article 29 of Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de Comunicaciones, Nº 7425, a provision that must be harmonized with article 24 of the Political Constitution and article 1 of the Code of Criminal Procedure (Código Procesal Penal). In a second and extremely important respect, article 29 of the aforementioned special Law expressly provides that authorization to inspect banking records, where an account has multiple holders, must be given by all account holders.

It has been established in the case that the holders of account [Valor034] at BAC INTERNATIONAL. BANK DE PANAMA ARE [Nombre032] AND [Nombre047]. This is the principal account, since it was opened in Panamá for the purpose of receiving, as established in the judgment under appeal, the monies paid by Instrumentarium Corp. Medko Medical, which monies were subsequently transferred to their personal accounts, Marchwood Holding, Harcourt Holding, and Walka, and to the personal account of co-defendant [Nombre037], according to the evidence declared ineffective in the majority opinion. This means that although [Nombre032] had representative authority and could act individually, this cannot validly be interpreted contrary to law, as the court below did in the challenged decision, because article 29 of Ley Nº 7425 del 9 de agosto de 1994 expressly requires authorization from all account holders. This is so precisely because such authorization entails an intrusion into the personal sphere of privacy and the privacy of documents protected by the Political Constitution; therefore, the decision made by one account holder cannot infringe that right as to the others.

Consequently, the Court’s decision to cure the defective procedural act affecting the letters rogatory sent to Panamá and the supplements thereto is inconsistent with the law and therefore does not cure the flawed act or in any way affect what has been stated concerning the declaration of ineffectiveness of all evidence originating from Panamá. Justices Arroyo Gutiérrez and Víquez Arias dissent.

If, in accordance with the Chamber’s precedent, that documentary evidence and its direct derivatives are null and void for that matter, they must necessarily also be null and void for the present case, which derives from that matter. It is also worth adding that disregarding that precedent of the Chamber would give rise to a contradiction that could eventually constitute grounds for cassation (Article 468(a) of the Code of Criminal Procedure). Accordingly, item of evidence 588 and all evidentiary elements directly dependent upon it are null and void. Once this documentary evidence is excluded, only the statement of the cooperating defendant (imputado colaborador), [Nombre026], remains. b.- Regarding the existence of a parallel and independent line of journalistic investigation. During the oral hearing, the Prosecutor’s Office stated that it would take the opportunity to provide “arguments supplementing the arguments set forth in the judgment in support of the lawfulness of this evidence” (see audiovisual recording c0002121107132843.vgz, from 13:42:10 to 13:42:30), and insisted that not only is item of evidence No. 588 lawful, but there is also an uninterrupted, parallel, and independent line of journalistic investigation that may serve as an independent source of evidence to establish the act at issue in these judicial proceedings, according to the case law or doctrines of the Supreme Court of the United States of America. It challenges the position expressed by our Third Chamber in Judgment No. 2011-499 (Caja-Fischel case), arguing that Mr. [Nombre032] does have standing to authorize the use of item of evidence 588.

This panel does not share the Prosecutor’s Office’s position. As stated in the preceding section—to which we refer in order to avoid unnecessary repetition—item of evidence No. 588 is unlawful, as are all evidentiary elements directly derived from it, under the Political Constitution and Costa Rican law, which allow the matter to be resolved directly, as the Third Chamber of our Supreme Court of Justice did.

Nor is the contention tenable that the reasoning of the judgment may be “supplemented” through this appellate proceeding, or that the act at issue in the proceedings may be derived independently from the journalistic investigation, for the following reasons. First, because the authority to provide the grounds for a conviction belongs to the judges of the trial court, not to prosecutors. The Prosecutor’s Office may not supplement or add reasons to cure the lack of grounds in a judicial decision being challenged (the judgment must be self-sufficient with respect to its reasoning).

Second, because the manner in which the media obtain information protected by Article 24 of the Political Constitution cannot, as a matter of principle, be presumed lawful if they obtained it from a purported “confidential source” or by means other than those prescribed by the Political Constitution and the laws of the Republic. In such a situation, the information might perhaps be included in news reports or give rise to new lines of journalistic investigation—even as a legitimate exercise of the right to information—and thereby generate valuable debates on matters of public interest, but it definitely cannot be introduced into criminal proceedings as the basis for a conviction, because Article 181 of the Code of Criminal Procedure imposes an insurmountable limit:

“Evidence shall have value only if it has been obtained by lawful means and introduced into the proceedings in accordance with the provisions of this Code.” “Unless it favors the defendant, information obtained through torture, mistreatment, coercion, threats, deception, improper intrusion into the privacy of the home, correspondence, communications, papers, and private records, or information obtained by any other means that undermines a person’s will or violates the fundamental rights of individuals, may not be used” (emphasis added).

Article 24 of the Political Constitution guarantees the rights to privacy and freedom and the secrecy of communications, which includes bank secrecy. In this regard, our Constitutional Chamber states:

“In general, all banking activity involving contracts, applications, and any other type of relationship with private individuals—as customers—is, by its nature, protected by bank secrecy.-” “Transactions conducted by private individuals with banks—as private-law entities—constitute, both with respect to how they are obtained and the form and manner in which they are established and serviced, private documents protected under Article 24 of the Constitution—unless, by their nature, they must be recorded in public documents or in records that are also public, from which the information they contain could be obtained without the bank’s involvement—and therefore the bank may provide such information only in the cases and in the manner prescribed by that Article.” (Constitutional Chamber, No. 578-92 at 10:45 hours on 28 February 1992).

Article 615 of the Commercial Code provides:

“Bank checking accounts are inviolable, and banks may provide information about them only upon the request or with the written authorization of the owner, or by order of a competent judicial authority. This does not apply to intervention by the Superintendencia General de Entidades Finanieras, or by the Dirección General de Tributación authorized for that purpose, in the performance of their duties as prescribed by law.” The “Ley sobre registro, secuestro y examen de documentos privados e intervención de las comunicaciones” (Ley N° 7425 of 9 August 1994) is the special legislation that—in compliance with Article 24 of the Political Constitution—establishes the cases in which the Courts of Justice may order the seizure, search, or examination of private documents when absolutely indispensable to clarify matters submitted for their consideration. From a constitutional and legal standpoint, when lifting bank secrecy is absolutely indispensable to clarify a matter before a Criminal Court, that information may be obtained only by the Courts of Justice and necessarily in the manner prescribed by the law governing this subject.

In any event, the alleged line of journalistic investigation is not even prior to and independent of the act of judicial assistance by Panama that tainted item of evidence No. 588, since all the reports are subsequent to, or expressly cite, the investigation by the Prosecutor’s Office as their source of information. A.2.- The statement of the defendant [Nombre026]. The court derives the alleged participation of Mr. [Nombre012] from the testimony of [Nombre026]. a.- General considerations regarding the assessment of the statement given by a “cooperating defendant.” The principle of prosecutorial discretion (principio de oportunidad) is an exception to the principle of legality (principio de legalidad), under which the Public Prosecutor’s Office is responsible for bringing public criminal prosecutions in all appropriate cases, in accordance with the provisions of law. In this regard, the principle of legality seeks to guarantee legal certainty and equality in the application of the law.

However, Article 22 CPP sets forth a list of exceptions to that rule, which it calls “discretionary prosecution criteria (criterios de oportunidad).” These are very specific cases in which, with prior authorization from a hierarchical superior, the representative of the Public Prosecutor’s Office may request that criminal prosecution be waived in whole or in part, or limited to one or more offenses or to one or more of the persons who participated in the act.

Of those cases, the one relevant here is that provided for in subsection b) of Article 22 CPP, which states:

“The matter concerns organized crime, violent criminality, serious offenses, or proceedings of a complex nature, and the defendant effectively cooperates with the investigation, provides essential information to prevent the offense from continuing or other offenses from being committed, assists in clarifying the act under investigation or other related acts, or provides useful information to prove the participation of other defendants, provided that the cooperating party’s conduct is less blameworthy than the criminal acts whose prosecution the cooperation facilitates or whose continuation it prevents.” Some refer to this situation as a “Crown Witness (Testigo de la Corona)” for historical reasons relating to the origin and development of the institution in the Anglo-Saxon system—that is, a witness for the King or Queen—while others use the more than imprecise and pejorative labels “repentant witness,” “informer,” or “snitch.” Because Costa Rica is a Republic in which human dignity is respected (Articles 1 and 33 of the Political Constitution), we choose to refer to this person as a “cooperating defendant,” which is how Article 22 CPP describes the person.

For the application of this exception to the principle of legality to be reasonably justified, the results identified in the provision must be achieved—enhancing the effectiveness of the investigation of the acts, preventing the offense from continuing or other offenses from being committed, and obtaining useful information to prove the participation of other defendants—while respecting a value judgment: namely, that achieving those results with respect to the criminal acts whose prosecution is facilitated, or whose continuation is prevented, must be more valuable than the blame attributable to the cooperating party for that party’s conduct. In other words, it must be more appropriate to waive criminal prosecution of the cooperating defendant in whole or in part if such cooperation secures those benefits. The institution itself has been heavily criticized because it undermines fundamental principles of the rule of law (Estado de Derecho) (in this regard, LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4th ed., San José, Editorial Jurídica Continental, 2009, pages 110 to 113 and 119 to 124), to the point that it has been said:

“...granting the Public Prosecutor’s Office discretionary authority—whether unfettered or regulated discretion—so that it may:

• 1)Either refrain from bringing a criminal prosecution, despite being aware of an act that appears to constitute an offense, in which case proceedings are not even commenced;
• 2)Or request that the accused be given a sentence different from or lower than the one prescribed by law, despite being aware that the sentence established in the Criminal Code is different or higher; and
• 3)Or conclude the proceedings without a conviction being entered, always despite the existence of an act that at least appears to constitute an offense—all of this must necessarily entail the perversion of the entire substantive criminal-law system.” “The most serious aspect of the matter is that the entire effort of the criminal legislature and the policy decisions adopted in defining conduct as an offense and prescribing a penalty may be rendered meaningless by virtue of a non-criminal provision authorizing the Public Prosecutor’s Office to control the application of that criminal law in specific cases. If the provision establishing the principle of prosecutorial discretion were classified as procedural, this would lead to the absurd result that the application of the entire Criminal Code would be subject to a rule of criminal procedure—a single rule—through which, it could be said, all substantive criminal-law provisions would be emptied of content” (MONTERO AROCA, Juan: Principios del proceso penal, Valencia, Tirant lo blanch, 1997, pages 78 to 79).

“The introduction of this mechanism into Argentine criminal law was not, and remains not, free from controversy. Prominent voices have been raised against it, openly rejecting the possibility of the State entering into negotiations with a person who commits an unlawful act, both for moral and constitutional reasons and because the agreement undermines the legitimacy of the purposes of State-imposed punishment” (SCHIAVO, Nicolás: The Figure of the ‘Cooperating Offender’ in Law 23.737, at <http://new.pensamientopenal.com.ar/16102007/doctrina03.pdf)>.

With regard to the cooperating defendant (imputado colaborador), rather than opportunity—understood as expediency—it is a matter of opportunism, in the second sense of the word, “...which consists of taking maximum advantage of circumstances to obtain the greatest possible benefit, without regard to principles or convictions” (REAL ACADEMIA ESPAÑOLA: Dictionary of the Spanish Language, Madrid, 21st edition, 1992, page 1049), as occurs in this area when exceptions are made to the mandatory exercise of criminal prosecution (acción penal).

“...The prosecution witness, called a ‘pentito’ or cooperating offender under Italian procedural law, is a discreditable, dangerous, and immoral instrument employed by the State in its fight against crime. The authority vested with the right to prosecute—which in our system is the Public Prosecutor’s Office—fails to recognize that fighting unlawfulness by using morally questionable means amounts, in a certain sense, to legitimizing the conduct of those who place themselves outside the law. It is clearly an effective and powerful tool [...] Nevertheless, this does not alter the immoral nature of the tool employed. The so-called opportunity principle (criterio de oportunidad) is nothing of the sort; it is an opportunistic criterion, not one of opportunity. The parties have no way of knowing whether the legally protected interests being negotiated are of greater or lesser rank than those being infringed.

The Public Prosecutor’s Office handles this dangerous instrument as it sees fit and does not account for it until the trial itself. Does this not leave the defense without recourse? A few years ago, taking advantage of Eugenio Raúl Zaffaroni’s presence in Costa Rica, I spoke with him in the company of our distinguished colleague Lic. Ricardo Hilje. Taking advantage of the occasion, I asked the eminent Argentine academic and judge for his opinion regarding this mechanism, which was just then emerging as a possibility on the Costa Rican procedural horizon. Zaffaroni replied with what I had always believed: that a State governed by the rule of law cannot fight crime by using the same methods as criminals, namely, methods that violate basic principles such as loyalty. An informant is despised everywhere, even when the outcome of the information provided is axiologically acceptable...” (CASTELLON V., Gonzalo: The Prosecution Witness, in the newspaper La Prensa Libre, Thursday, April 29, 2010).

It is also an exception to the prohibitions governing a defendant’s statement (declaración del imputado), specifically those in Article 96 of the Code of Criminal Procedure, since there can be no doubt that negotiating the application of this opportunity principle may be a way of inducing or compelling the defendant to “voluntarily” state what is of interest to the Public Prosecutor’s Office. The third paragraph of Article 96 CPP (“The promise of an advantage shall be permitted only when specifically provided for by law”) allows what the remainder of the provision prohibits. An advantage not provided for by law would be prohibited, because it is plainly improper to offer advantages to a defendant in exchange for a confession or the provision of incriminating information, since obtaining the benefit could condition or compel the defendant to say “freely” what the Public Prosecutor’s Office wants to hear in exchange for the advantage it offers from an evident position of superiority.

That is what the law provides, but it entails a normative inconsistency. Even if the defendant is made an offer authorized by Article 22(b) CPP, the trial court cannot overlook the fact that the defendant has in reality been tempted or manipulated by the advantage offered by the prosecuting authority; that if the defendant testifies, the statement is not made as freely and spontaneously as it may appear, but is conditioned by the prospect of obtaining an advantage in the face of the severity of the criminal justice system. Accordingly, the law’s mere authorization to agree upon an opportunity principle does not relieve the court of its duty to exercise particular care when determining the evidentiary value (valor probatorio) of the statement given by the “cooperating witness” (as Judge Camacho Morales noted in his dissenting opinion concerning the decision issued at 13:30 hours on September 2, 2012, cf.

Volume XXVIII, folios 13713 reverse through 13714 reverse). But if our legislature adopted this legal mechanism (instituto), it may be assumed that its purpose was to strengthen the system’s efficiency (cf. GONZÁLEZ ÁLVAREZ, Daniel: The Opportunity Principle in the Exercise of Criminal Prosecution, in Ciencias Penales, Journal of the Asociación de Ciencias Penales de Costa Rica, San José, Year 5, No. 7, July 1993, pages 63 to 69), not to promote impunity:

“In all these circumstances, it is a requirement that the act whose prosecution is waived be considerably less serious than those which the defendant helps to investigate or whose continuation the defendant helps to stop; otherwise, impunity for serious offenses would be encouraged, thereby depriving application of the opportunity principle of all meaning” TIJERINO PACHECO, José María: Opportunity Principle, in A.A.V.V.: Reflections on the New Criminal Procedure, San José, Imprenta y Litografía Mundo Gráfico S.A., 1996, page 98).

The head of the Public Prosecutor’s Office who authorizes the application is the official responsible for assessing the “opportunity,” expediency, and necessity of applying this principle (Art. 22 CPP). Regarding judicial review (control jurisdiccional) of the application of opportunity principles, the Constitutional Chamber has held that:

“...the function of bringing charges for publicly prosecutable offenses (delitos de acción pública) is a function assigned by law to the Public Prosecutor’s Office. Consequently, it is for the prosecutor to decide whether it is expedient to apply an opportunity principle [...] The judge’s authorization excludes any assessment of the measure’s expediency or appropriateness, because the judge may not substitute their decision for that of the prosecutor, who is responsible for exercising criminal prosecution...” (Constitutional Chamber, No. 2001-02662, issued at 15:30 hours on April 4, 2001).

It is clear, however, that the trial court is responsible for analyzing and assessing the evidence produced through this particular opportunity principle. The Third Chamber has stated that, because the criminal prosecution against the cooperating defendant “...is suspended pending the outcome of the trial, the statement given at trial by the prosecution’s ‘witness’ against the other accused persons must be made in the capacity of a defendant and with due regard for the attendant safeguards” (Third Chamber, No. 476, issued at 10:02 hours on March 16, 2012).

The Constitutional Chamber has also established certain criteria to be followed regarding the cooperating defendant, specifically in relation to this particular case, in judgment No. 2009-12090, issued at 14:40 hours on July 31, 2009, concerning a constitutional challenge (acción de inconstitucionalidad) brought by don [Nombre012] against Articles 24, 297(d), and the second paragraph of Article 299 of the Code of Criminal Procedure:

“...the fact that no right to appeal is provided against a decision approving the application of an opportunity principle for persons appearing as defendants in the same case does not violate due process or the right of defense, because the testimony given by the person to whom an opportunity principle has been applied will be assessed by the court, which must state the grounds for finding it credible or not in relation to the remaining evidence; moreover, that testimony may be extensively challenged by the parties at trial. Likewise, the defendant has the right to challenge the judgment if the defendant believes that defects occurred in the reasoning of the decision or in the admission or assessment of the evidence...” “...the possibility is provided of waiving the exercise of criminal prosecution [...] provided that the defendant’s conduct is less blameworthy than the punishable acts whose prosecution the defendant facilitates or whose continuation the defendant prevents.

This assessment of blameworthiness concerns culpability, such that the cooperating person must warrant a finding of lesser blameworthiness or culpability than the principal offender with respect to whom the cooperation is provided...” “...It is important to mention, by way of reference, that the European Court of Human Rights, in its judgment of September 6, 1978, recognized the legitimacy of the prosecution witness or cooperating offender. Subsequently, according to decisions of September 27, 1990, and November 20, 1989, that same judicial body determined that such evidence should be admissible only as a source of circumstantial evidence (prueba indiciaria); that is, the data or information provided requires corroboration and November 20, 1989, that its admissibility must be limited to use as a source of circumstantial evidence; that is, the data or information provided requires corroboration by other evidence.

It becomes an investigative tool subject to direct or indirect confirmation of the data or circumstances provided concerning the acts under investigation. According to the case law of the European Court of Human Rights, these requirements do not deprive the cooperating person of legitimacy.” “...a reading of the challenged Article 22(b) clearly indicates that the cooperation-based opportunity principle applies to participants whose conduct is considered less blameworthy [...] it is further required that the defendant cooperate effectively with the investigation, provide essential information to prevent the offense from continuing or other offenses from being committed, help clarify the act under investigation or other related acts, or provide useful information to prove the participation of other defendants; as the provision stipulates, all such cooperation requires that the cooperating person’s conduct be less blameworthy than the punishable acts whose prosecution the person facilitates or whose continuation the person prevents.

Blameworthiness concerns the degree of culpability with which the person acted, which cannot be determined a priori but must necessarily be assessed in each individual case...” It is important to note that, in this judgment of the Constitutional Chamber, Justices Calzada and Jinesta dissented, warning that:

“In our view, ‘prosecutorial discretion criteria (criterios de oportunidad)’ produce the unlawful effect of a total or partial relinquishment of the State’s punitive power (ius puniendi) with respect to certain offenses or particular persons who have participated in an allegedly criminal act. The non-waivable nature of a paramount public power is irreconcilable with any criterion of expediency or discretion—ultimately relative and subjective—in its exercise. Furthermore, the Constitution presupposes a fundamental ethical and moral order, to such an extent that Article 28 of the Constitution provides that morality is one of the limits on the principle of freedom of will. In our view, ‘prosecutorial discretion criteria’ may ultimately be objectionable from the standpoint of universal morality and a minimum ethical-constitutional foundation, because they empower the prosecuting authority to forgo public criminal prosecution (acción penal pública) against particular persons or for certain acts.

From another standpoint, the principle of legality in criminal matters presupposes that the People, in whom the original legislative power resides, delegate it to the Assembly through suffrage (Article 105 of the Constitution) so that it may classify certain conduct as unlawful and culpable; thus, the prosecuting authority, which lacks any democratic legitimacy, is not in a position to decide, at its discretion or convenience, what conduct and which persons to prosecute when the legislature, acting under authority delegated by the people, has previously determined that they must be prosecuted. In short, an authority lacking direct or indirect democratic legitimacy is not in a position to weigh what the public or general interest considers should or should not be prosecuted. It must be borne in mind that the basic or fundamental guidelines and policies governing investigation, prosecution, and the exercise of criminal prosecution are established primarily and above all by the punitive legislation enacted by the Legislative Assembly by virtue of the power delegated to it by the people.

This also contravenes another fundamental principle within the constitutional standard, set forth in Article 129 of the Constitution, which provides that ‘Laws are binding’ and that ‘A law shall not be abrogated or repealed except by a subsequent law,’ because, despite the force and binding nature of the law and the impossibility of repealing a law in a specific case, prosecutorial discretion criteria may be used to decline to apply the law to one or more acts and to particular persons. The foregoing reasoning demonstrates that prosecutorial discretion criteria are incompatible with a proper and due understanding of a Constitutional State governed by the rule of law, notwithstanding the numerous doctrinal, sociological, or criminological arguments that may support their establishment (e.g., that the criminal justice system lacks the capacity to punish all conduct, the conservation of prosecutorial resources, the existence of insignificant conduct—petty offenses—that should not be prosecuted, or that criminal prosecution has traditionally focused on conventional crime, zzando [sic] non-conventional offenses, etc.).

None of those doctrinal or extra-legal arguments supporting prosecutorial discretion criteria may take precedence—because they lack constitutional support—over the constitutional provisions, values, and principles stated above. The partial or relative displacement of the principle of legality—inherent in the Constitutional State governed by the rule of law—through prosecutorial discretion criteria is of such magnitude that it inexorably requires a constitutional amendment permitting it, something not contemplated by our Constitution. Thus, by way of illustration, under a systematic interpretation and allowing for the distinctions of the case, Article 180, paragraph 3°, of the 1949 Constitution permits, in national Public Law, the displacement or suspension of the principle of substantive and budgetary legality in favor of the principle of necessity, under qualified circumstances ‘to meet urgent or unforeseen needs in cases of war, internal disturbance, or public calamity.’ Finally, it must be noted that, in exercising its legitimate sovereign power, the legislative body has other policy alternatives or options for achieving the objectives pursued by prosecutorial discretion criteria, such as decriminalization or depenalization, increasing the number of administrative offenses while rigorously delineating the respective domains of Criminal Law and punitive Administrative Law, and introducing suitable and expeditious tools to combat non-conventional crime, etc.” b.- Considerations concerning the analysis and assessment of the statement given by [Nombre026].

If [Nombre026] was granted prosecutorial discretion for utilitarian purposes, that decision by the Public Prosecution Service (Ministerio Público) may therefore be judged by its results or consequences. From this perspective, the following questions may be asked concerning the accused (imputado), [Nombre026]:

Did he cooperate effectively in the investigation of the act attributed to him?

Did he cooperate effectively in clarifying other offenses related to the offense in whose proceedings prosecutorial discretion is being applied to him?

Did he provide essential information to prevent the offense from continuing or other offenses from being committed?

Did he help clarify other related acts?

Did he provide useful information to prove the participation of other accused persons in the acts under investigation?

Was [Nombre026]’s conduct less reprehensible than the acts whose prosecution he supposedly facilitated or whose continuation he prevented?

This Chamber considers that the answer to all those questions is “No,” because it is readily apparent that [Nombre026] did not even give a reliable statement and that the majority of the court neither critically analyzed nor assessed it, as was required for such an unusual and supposedly essential deposition. Let us recall that [Nombre026] is the only eyewitness to the alleged participation that he attributes to [Nombre012], which made it necessary to exercise caution when analyzing and assessing his statement, as scholars of this discipline who have reflected on this doctrine have advised since the Enlightenment:

“Some courts offer immunity to the accomplice to a serious offense who discloses the others. This recourse has its disadvantages [...] The disadvantages are that the Nation authorizes betrayal, which is detestable even among wrongdoers; for crimes of courage are always less harmful to society than crimes of baseness, because the former are uncommon and, with only a beneficent force to direct them, will contribute to the public good; whereas the latter are more common and contagious, and are always self-serving. Moreover, the court reveals its own uncertainty and the weakness of the law, which implores the assistance of the person who violates it...” (BECCARIA, Cesare: On Crimes and Punishments, Madrid, Alianza Editorial, 1997, pages 108 to 109).

Classical literature also contains well-founded objections regarding testimony about another person’s conduct given by an accused person who confesses fully or partially in exchange for an advantage, for example:

“We reiterate that whenever a general accusation against an accomplice is presented as an exculpatory statement by the accused who makes the accusation, suspicion regarding the latter’s truthfulness is legitimate. It follows that such suspicion becomes overwhelming when immunity has been promised on condition that the accomplice’s name be disclosed, because the incentive to lie is so great that logic refuses to give credence to such a disclosure of participants, purchased at the price of immunity for the person making it. Fortunately, however, the use of immunity as the price of disclosure has lost much of its importance because it has been shown to cause serious harm. Rather than deterring crime through the mistrust it creates among accomplices, the promise of immunity encourages crime by assuring each person that there will always be an available means of escaping criminal justice. The promise of immunity, which is an immoral pact between the law and the offender, is not only a legal error but also an evidentiary error because, on the one hand, it encourages crime and corrupts and disturbs society with the spectacle of the release of an offender who enjoys immunity and is almost always not merely the most culpable but also the most depraved; and, on the other hand, it subverts every evidentiary standard and, through the operation of law, creates in the accused’s mind a very powerful incentive to make false disclosures” (FRAMARINO DEI MALATESTA, Nicola: Logic of Evidence in Criminal Matters, Volume II, Editorial Temis, S.A., 2002, page 260).

At present, the observations of Ferrajoli and Riera Beiras concerning the cooperating witness (testigo colaborador) are also relevant. The former has warned that, because the rights-protective model reverses the idea that the end of discovering the truth justifies any means, it is solely the nature of the means that guarantees attainment of the end; from this follows the prohibition of any promise or direct or indirect pressure upon accused persons to induce them to express remorse or cooperate with the prosecution; and he cautions us that:

“All criminal and procedural safeguards [...] are effectively altered by negotiation between the parties or, worse still, between the judge and the accused when its object is the evidence and the punishment: the retributive connection between punishment and offense, because the punishment and its extent are made to depend more on the offender’s conduct during the proceedings than on the seriousness of the offense; the principle of strict legality, because the degree of reliability and relevance of the cooperation provided—and therefore the prerequisites for a reduction in punishment—is wholly indeterminate and open to subjective judgment; the principle of materiality, given the eminently subjective nature of the cooperative attitude or, worse still, the ‘remorse’ or ‘dissociation’ required of the accused, onto whom the prosecution’s burden of proof is also shifted; the adversarial principle (principio de contradicción), because of the confusion of roles between the parties and the monologic character imparted to all procedural activity; the safeguards of defense and publicity, because the accused’s cooperation with the prosecution requires a tête-à-tête between investigator and investigated person that does not tolerate the presence of unrelated third parties and that, on the contrary, because of the unequal relationship between the contracting parties, degenerates into murky transfers of trust of the ‘servant and master’ variety; and, finally, the principle of equality under criminal law, because only the guilty can cooperate, bargain, and profit—and all the more so when they are seriously culpable—whereas the innocent or those bearing only marginal responsibility cannot do the same and, because they know nothing about the offense and provide no incriminating contribution, are doubly penalized.

Legality, the judicial nature of adjudication, the non-derogability of prosecution and trial, and the non-disposability of criminal-law situations ultimately vanish in this unequal negotiation, yielding to a wholly discretionary power that inevitably results in arbitrariness” (emphasis not in the original, FERRAJOLI, Luigi: Law and Reason: Theory of Criminal Guarantees, Editorial Trotta, Madrid, 1995, pages 608 to 609).

Rivera Beiras, for his part, warns with utmost clarity and precision of the risk that the cooperating-witness mechanism poses to the ascertainment of the truth:

“...this may perhaps be one of the points that most forcefully demonstrates the predominance of political considerations over legal ones. This is so much the case that clear examples can be found in European legislation that—although using different legislative techniques—has been ‘legalizing’ special, lenient, and reward-based treatment for informants/repentant offenders/cooperating witnesses, etc.” “And, in truth, I believe it may be said, without fear of being mistaken or exaggerating, that the rules governing ‘repentant offenders’ have most forcefully and profoundly changed the nature of criminal legislation and its underlying principles. Indeed, this legislative trend transformed the foundations of act-based criminal law (Derecho penal de acto), based on the offense itself, into those of offender-based criminal law (Derecho penal de autor).

Why is such an assessment made? Let us examine certain points that are essential to piecing together the process I am attempting to describe.” “First, it must be noted that the repentance of the person to be rewarded is by no means the spontaneous repentance that has always existed in ordinary criminal legislation. Quite the contrary, it is calculated repentance. And that calculation is made by measuring the benefits—procedural, sentencing, or correctional—that the repentant offender believes he may obtain.” “To put it much more plainly: the objective is to induce the offender to switch sides in exchange for a judicially granted or judicially negotiated reward.” “Moreover, and increasingly so, the distortion of the law becomes more evident: the accused is instrumentalized so that his confession may subsequently be used—as privileged evidence—against his former associates whom he has informed against.” “It must also be said, in close connection with the foregoing, that the repentant offender will usually—depending on the extent of his repentance/informing/betrayal—cease to be an accused person and become a witness.

Of course, he is not an impartial witness, but rather one with a profound personal interest.” “From this point onward, it is evident that it will no longer be possible to know when he is telling the truth and when he has begun to exaggerate, lie, or simply invent facts in order to obtain the benefits. This is because his benefits become inversely proportional to the harm suffered by the persons against whom he informs; the rule is simple: the more harm he causes his former associates, the greater the personal benefit he will obtain.” “This leads to one of the most striking consequences of this entire system: the person who serves the shorter sentence will not be the one who commits fewer offenses, but the one who informs against more people.” “It seems to me that, after the observations discussed above, little further argument is needed to conclude that a criminal justice system—both substantive and procedural—inspired by the principles described constitutes a genuine weapon of political struggle that has ultimately subverted the principles of a criminal law rooted in the liberal Enlightenment tradition.” “A concrete and current example of everything being discussed is found in a provision of the Spanish Criminal Code, which states: ‘[...] Judges and Courts, providing their reasoning in the judgment, may impose a penalty one or two degrees lower than that prescribed by law for the offense in question when the person has voluntarily abandoned his criminal activities and appears before the authorities, confessing the acts in which he participated, and, in addition, actively cooperates with them to prevent the commission of the offense or effectively assists in obtaining decisive evidence for the identification or apprehension of other responsible persons, or to prevent the activities or development of armed bands, organizations, or terrorist groups to which he belonged or with which he collaborated’ (emphasis added, RIVERA BEIRAS, Iñaki: Recorridos y posibles formas de la penalidad, Anthropos Editorial, 2005, pages 117 to 119).” Among the criticisms made in our academic literature of the “cooperating accused (imputado colaborador)” is precisely the limited reliability of the results obtained:

“The principal criticisms concern the limited credibility that a Crown witness may have...” “The application of the 1996 Code has been unclear. First, the institution fell into disrepute when, in a well-known case, the Crown witness changed his statement several times.” (LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4th ed., San José, Editorial Jurídica Continental, 2009, pages 122 and 123).

“...it has been said that evidence obtained through this means deserves very little credence, since it may easily happen that a person seeks to implicate others in order to protect his own position, attempting to be released from criminal liability. Ultimately, the statutory benefit that the cooperating person may obtain depends on the effectiveness of his contributions, so those contributions may be seriously influenced by his own interests—not only procedural, but also financial and even publicity-related. But that is not all: it is also possible that the purported cooperating person may instead seek to mislead the authorities conducting the investigation by providing false information. Consider, for example, the manipulation that several accused persons could engage in merely by agreeing to offer distorted cooperation, falsifying, for instance, the information they provide.” “For some, when an accused person informs against others, asserting that they committed the act with him or that they intend to commit further offenses, the authorities are required to proceed with the utmost prudence and caution, without disregarding that information but assigning it only the value appropriate to a report of a possible crime (notitia criminis).

If an accused person decides to reveal secrets that another would jealously guard, how many reasons might motivate such conduct? It has therefore rightly been said that the system should establish every safeguard necessary to ensure the truthfulness of the information by corroborating it through other means.” “Nevertheless, in many cases the cooperating person’s disclosures are readily accepted as genuine indications of criminal liability, regardless of the informant’s character, his lack of credibility, or the prior contradictory statements he may have made. Although the cooperating accused sometimes does not disclose everything he knows or does not assume all the responsibility attributable to him, it may happen that, because of an accommodating attitude, his disclosures are accorded far greater credence than any exculpatory account offered by those against whom he has informed. In certain cases, this may result in insufficiently thorough police inquiries and, closely related to that, stagnation in investigative techniques.” “Under these circumstances, procedural safeguards, the presumption of innocence, and the traditional standards governing judicial investigations may be destroyed by the mere word of the cooperating accused.” “...It must also be borne in mind that the prosecution negotiates with persons who may still be members of the criminal organization or remain connected to it, and who may therefore provide false information in order to divert or delay the investigation or cause it to fail, potentially even resulting in an unjust conviction entered against an innocent person” (emphasis not in the original, ZUÑIGA MORALES, Ulises: El Testigo de la Corona, in AAVV, Derecho Procesal Penal Costarricense, San José, Asociación de Ciencias Penales de Costa Rica, 2007, pages 594 to 595 and 601).

Similarly, regarding the “procedural frauds (fraudes procesales)” that may be facilitated by the cooperating accused and the issue of the evidentiary value (valor probatorio) of his statements, the following warning is given:

“Added to the list of objections is the risk that the Administration of Justice may be used by ‘false repentant offenders,’ who, for the purpose of misdirecting the inquiries, may jeopardize the dignity and safety of persons having no connection whatsoever with the offenses.” “There appears to be no doubt that a criminal judgment may validly be based on the account provided by a single witness when an examination of that witness’s testimony in the specific case withstands analysis under the rules of sound human understanding.

If that is so, and the statement of one co-accused against another has been admitted as valid evidence, one may ask what specific objection is made to this mechanism with regard to its evidentiary value. The fundamental objection is that it is a statement made by someone with a strong interest in harming the other defendants and thereby obtaining an advantage in the proceedings brought against him” (emphasis not in the original, RODRIGUEZ CAMPOS, Alexander: El arrepentido y la investigación penal encubierta Aspectos problemáticos de la persecución del crimen organizado, in A.A.V.V., Una oportunidad para reflexionar XXV aniversario del Ministerio Público, San José, Departamento de Publicaciones e Impresos del Poder Judicial, 2000, pages 299 and 301 to 302).

It should be noted that Judge Camacho Morales, in his dissenting opinion (voto salvado), also explained that the processing and granting of prosecutorial discretion (criterio de oportunidad) to [Nombre026] involved violations of due process (debido proceso). He had even warned of this previously, providing extensive reasons, when the interlocutory ruling (resolución interlocutoria) of 13:30 hours on 2 de setiembre de 2010 was issued (cf. “The objections based on defective procedural activity (actividad procesal defectuosa) raised in response to [Nombre026]’s appearance at trial pursuant to prosecutorial discretion are denied,” Volume XXVIII, folios 13676 to 13736). In that ruling, he also wrote a dissenting opinion—emphasizing the need to ensure judicial review (control jurisdiccional) of the application of that mechanism for the co-accused who did not benefit from such prosecutorial discretion—to which he refers and which he quotes verbatim herein (cf. pages 1944 to 1988). In addition to what he stated on that occasion, he noted that information necessary to decide the request for the application of prosecutorial discretion had clearly been withheld from the criminal court judge. Judge Camacho Morales informs us that:

“The Public Prosecution Service (Ministerio Público) submitted a request to the Criminal Court Judge while withholding information decisive for establishing the lesser degree of blameworthiness and conducting the proportionality analysis required for the application of the opportunity criterion (criterio de oportunidad). The request for application of the opportunity criterion did not mention other conduct that could constitute criminal offenses and that was confessed to by [Nombre026] and is reflected in expert report 297-DEF, documentary evidence Nº 598, such as ‘commissions’ of $110.207,00 and $29.833,95 received from Cibertec S. A. and Empaques Asépticos S. A. (folio 38). It also omitted money that [Nombre026] confessed to having received from [Nombre041] by means of check Nº [Valor035], drawn on [Nombre041]’s account Nº [Valor036] at Banco de San José, in connection with the La Joya electricity-generation project, allegedly receiving a total of $56.000,00.

This last event is recorded in the complaint submitted by the Technical Defense (Defensa Técnica) of [Nombre012] as evidence when raising a claim of defective procedural activity (actividad procesal defectuosa) against the opportunity criterion, as an interlocutory matter; that complaint gave rise to case Nº 08-000032-615-PE. Those documents contain a request for dismissal (desestimación) of the case in which the prosecution lists all the acts alleged against [Nombre026] by co-defendant [Nombre012], acknowledging that they had been investigated, but requests dismissal of the complaint on the grounds that the prosecution of [Nombre026] had been suspended through the application of an opportunity criterion and that, for this reason, the Attorney General had not committed the offense of breach of official duties (incumplimiento de deberes). The complaint was dismissed on the basis of that request.

However, an examination of the opportunity-criterion file (legajo de criterio de oportunidad) readily shows that neither the relevant requests submitted to the Criminal Court Judge nor the unreasoned ruling granting the opportunity criterion included any of the acts mentioned above. Consequently, the suspension of the criminal prosecution (acción penal) resulting from the application of section 22(b) of the Code of Criminal Procedure (Código Procesal Penal) could not encompass those acts, which were not presented to the Criminal Court Judge so that he could assess [Nombre026]’s situation in its entirety and determine whether granting the requested opportunity criterion was proportionate and, above all, whether [Nombre026] had a lesser degree of blameworthiness in relation to all the offenses for which the Public Prosecution Service intended to grant that co-defendant immunity, but which it failed to bring to the Criminal Court Judge’s attention in the relevant request.

As a result, the Criminal Court Judge applied the opportunity criterion solely and exclusively to the acts included in the request, as he expressly stated in the ruling by declaring in the ‘Por Tanto’ that ‘(…) the prosecution of the public criminal action is suspended with respect to the acts described in the first recital of this ruling’ (ruling at folios 41 to 89 of the opportunity-criterion file. Emphasis added). Thus, because the other acts referenced were not described in the request for application of the opportunity criterion and therefore also do not form part of the first recital of the ruling, they are, and always have been, outside the scope of the opportunity criterion. Nevertheless, [Nombre026] was granted immunity with respect to them by allowing the criminal action to be extinguished by the statute of limitations (prescripción), an evidently unlawful situation that the Public Prosecution Service has refused to correct, even though it was pointed out by co-defendant [Nombre012] in the aforementioned complaint and by his Technical Defense at trial when raising defective procedural activity against the opportunity criterion.

Through the actions of the Public Prosecution Service, [Nombre026] was granted immunity through a de facto rather than a lawful opportunity criterion, thereby evading the necessary judicial oversight (control jurisdiccional) required in this regard.” (Judgment, pages 1989 to 1990).

Judge Camacho Morales also informs us that, in negotiating the opportunity criterion, [Nombre026]’s possession of millions of dollars allegedly derived from unlawful sources—having allegedly been received as bribes—was legitimized, through the non-application and disregard of the legal provisions establishing that the proceeds of crime are and must be subject to forfeiture (comiso). This thus constituted money laundering (legitimación de capitales), allowing [Nombre026] to retain a substantial portion of the money and assets acquired as proceeds of the bribes, an economic benefit that Judge Camacho Morales estimates at approximately two million four hundred thousand dollars ($ 2,400,000.oo) (cf. judgment, pages 1990 to 1991). Judge Camacho Morales states that [Nombre026]’s testimony was thereby procured as follows:

“[Nombre026]’s fundamental rights were also violated, particularly through the denial of his personhood and its inherent dignity. By negotiating an opportunity criterion with him through unlawful inducements (an economic benefit and the absence of the legal prerequisites for granting the opportunity criterion), he was instrumentalized, degraded to the status of an object, and used by the State’s prosecuting body to achieve purposes that are unacceptable in a democratic adjudicatory system: obtaining a conviction by resorting to means prohibited by law, the Political Constitution, and International Human Rights Law. The testimony given by [Nombre026], and the formation of his intent to provide it, were induced in an openly unlawful manner (art. 96 of the Code of Criminal Procedure), and he was therefore used by the Public Prosecution Service to achieve its ends, without regard to the fact that, at the conclusion of these proceedings, if legality prevails (minority opinion), [Nombre026] could still be tried.

He was thus given a false expectation, and the principle of prompt and effective justice (principio de justicia pronta y cumplida) was violated to his detriment.” “Accordingly, [Nombre026]’s testimony constitutes unlawfully obtained evidence (prueba ilícita) and cannot and must not be considered as the basis for any ruling (art. 181 of the Code of Criminal Procedure)...” The facts deemed proven in relation to Mr. [Nombre012] are described in Considerando III of the judgment, facts n° 84 to n° 114 (cf. Judgment, pages 995 to 1007). Facts n° 84 to n° 94 describe the alleged conversation between [Nombre026] and [Nombre012] on the morning of 4 de diciembre de 2000 at the latter’s home, during which [Nombre026] is said to have told [Nombre012] about the bribe proposed to him by [Nombre035] and [Nombre015] the previous day at the “[...]” restaurant, in exchange for taking the necessary actions as an ICE director to promote the migration from TDMA technology to GSM technology, prevent the tender process (proceso de licitación) for the four hundred thousand lines from being aborted, and vote in favor of awarding that tender to Alcatel.

It is stated there that [Nombre012] approved [Nombre026]’s acceptance of the Alcatel officials’ proposal and determined how the bribe would be divided between the two of them. According to the Tribunal’s majority, these duly proven facts constitute the offense charged against [Nombre012], but the only direct evidence of those facts is [Nombre026]’s testimony (there is no independent evidence corroborating the truth of his account). It is important to recall what Judge Camacho Morales tells us in this regard:

“The specific account of those facts rests exclusively on the statement of [Nombre026], which, as already noted, constitutes unlawfully obtained evidence and, even if it did not, would by itself be insufficient to prove those facts, as established by constitutional and cassation case law. In judgment 12090 de 2009, issued at 14:40 on 31 de julio de 2009, the Constitutional Chamber (Sala Constitucional), addressing the legitimacy of a cooperating witness (testigo de la corona), cites decisions of the European Court of Human Rights indicating that such a witness may be admitted only as a source of circumstantial evidence (prueba indiciaria), meaning that the data or information provided must be supported by other evidence. The Constitutional Chamber expressly stated: ‘It is important to mention, by way of reference, that the European Court of Human Rights, in its judgment of 6 de septiembre de 1978, recognized the legitimacy of the cooperating or cooperating-defendant witness (testigo de la corona o arrepentido).

Subsequently, in decisions of 27 de septiembre de 1990 and 20 de noviembre de 1989, the same judicial body determined that such testimony may be admitted only as a source of circumstantial evidence; that is, the data or information provided must be supported by other evidence. It thus becomes an investigative tool subject to direct or indirect confirmation of the data and circumstances provided concerning the events under investigation. According to the case law of the European Court of Human Rights, these requirements do not undermine the legitimacy of the cooperating witness.’ (Emphasis added). This is precisely the position adopted by the Third Chamber of the Supreme Court of Justice (Sala Tercera de la Corte Suprema de Justicia) in judgment 136-2003, when addressing the statement of a defendant who testified as a cooperating witness, denying that statement independent evidentiary value to establish the narrated facts and expressly stating that evidence corroborating his account was required.

The Third Chamber stated in this regard: ‘The only element considered by the trial judge was the statement of co-defendant [Nombre048], who named two additional persons as participants in the thefts and described each person’s contribution and the places where they disposed of the stolen items. However, this account was not corroborated by other evidence, except with respect to the participation of the “cooperating defendant,” since items suitable for committing this type of offense, as well as stolen property, were seized from his vehicle. The only evidence linking [Nombre049] to the charged acts is the co-defendant’s statement, which is insufficient. [Nombre050] depends on the outcome of this case for an order dismissing his own case to be issued.’” “Given that, as already indicated, [Nombre026]’s testimony constitutes unlawfully obtained evidence, and is also the only evidence through which the Public Prosecution Service seeks to prove the criminal acts attributed to [Nombre012], even if it were lawfully obtained evidence, it would not be sufficient to prove them, in view of his status as a cooperating witness and the benefit he expects to obtain from his testimony.

Additional evidence would be required to prove those acts, and no such evidence exists. For all these reasons, the acts under discussion were not proven by any valid evidence.” (Judgment, pages 1993 to 1995).

Judge Camacho Morales adds that, for these same reasons, the testimony of [Nombre026] alone is also insufficient to prove the conduct attributed to co-defendants (coimputados) [Nombre018], [Nombre004], [Nombre001], [Nombre027], [Nombre021], [Nombre015], and [Nombre009] (cf. Judgment, pages 1996 to 1997). This chamber finds it objectionable that the Public Prosecutor’s Office (Ministerio Público, MP) chose to apply the opportunity criterion (criterio de oportunidad) to [Nombre026], since it appears not to have made an accurate assessment of the culpability that could reasonably have been anticipated with respect to each of the alleged perpetrators before proceeding to trial. It has been stated that this failure to differentiate may give rise to situations as unacceptable as, for example, granting the perpetrator of a homicide impunity in exchange for using his confession to implicate his accomplices (the example is from LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4th ed., San José, Editorial Jurídica Continental, 2009, page 124). In this regard, the Third Chamber has stated:

«A requirement for applying this criterion is that the criminal prosecution being waived be considerably less serious than the punishable acts whose prosecution it facilitates. This is so because, as stated above, the purpose of applying this mechanism is not to confer impunity, but to achieve greater effectiveness within the system. If a person who had participated to a greater extent or committed a more serious offense than the person whom the authorities seek to prosecute were allowed to negotiate, there would be no proportionality between the punishment imposed and the incident left unpunished. If the acts or degrees of participation were equally serious, chance or arbitrariness would determine who would be tried and who would not. The criterion was therefore made applicable only in cases in which the participation of the “repentant offender” is less significant than that of the person sought to be apprehended, when the same act is involved, or where the offense is less serious when a different act is involved.

In the present case, the opportunity criterion should not have been applied because both defendants had identical participation in the same act. According to the statement of proven facts, three persons committed the thefts, dividing the tasks so that [V.Z.] and [M.A.] entered the homes and took the objects, while [E.Q.] drove the car in which they traveled, waited for them outside the selected residences, and then drove them away from the scene in that vehicle. According to the evidence, they also traveled in the vehicle driven by [E.Q.] to sell the stolen objects, and the proceeds were divided among all of them. It is evident that all three defendants were co-perpetrators of the offenses. The selection of one defendant to be brought to trial and another to receive an opportunity criterion was capricious and gives rise to arbitrariness and uncertainty. The requirement that the participation of the “repentant offender” be considerably less serious than that of the person whom the authorities seek to prosecute was not satisfied» (emphasis not in the original, Third Chamber, N° 2003-00136 at 9:20 on February 28, 2003).

The defendant [Nombre026] did not maintain a consistent account throughout the proceedings. Indeed, the examination of Dr. [Nombre012] as a defendant was conducted on the basis of the first account given by [Nombre026] (according to which he had accepted gifts, without any prior promise, for an act already performed, with no other involvement by [Nombre012] beyond receiving gifts connected with the money that [Nombre026] received from Alcatel), whereas the indictment and trial were based on a different account regarding which the defendant was never examined (according to which he received and accepted a corrupt proposal and therefore favored Alcatel in exchange for a subsequent gift, with [Nombre012] having participated beforehand). Thus, Don [Nombre012] was not even formally advised of the accusation or examined concerning the alleged meeting at his home, at which he supposedly induced [Nombre026] to commit an offense; consequently—as attorney Gairaud objects—he was never formally advised of the conduct said to constitute the offense of instigation (instigación).

The judgment states that [Nombre012] instigated [Nombre026], but that fact was not known from the case file when [Nombre012] testified; it became known only eight months later, when [Nombre026] gave his second account of the events. [Nombre026] himself acknowledges that he changed his initial account in his testimony at trial and attempts to justify doing so:

«That night at the Ministerio Público, I accepted responsibility and said that the offer had been made after the award; it was a way of justifying myself. I was so confused and disoriented, but it was obvious that this assertion could not stand on its own; that was because the Fiscalía said that could not have been the case and asked me to justify it, and that was when I clarified matters. I said that the offer was not made after the award but before it» (Judgment, page 520).

«I did say in that statement that I received the money or reward from Alcatel after the award by the board of directors; I believe I gave that account on September 30, 2004, and I do not remember whether I discussed it with my attorney. What I have is a superficial veneer of legal knowledge, but I have already explained here that the truth is otherwise; I had already stated that here. What I said here is true. I did not lie; I simply tried to cover for or protect myself at that time, but I later became more precise. Alcatel offered me 1.5% or 2% [...] In that September 30 statement, I admitted my responsibility and gave a detailed description of them; in an effort to justify myself, I stated that the offer would materialize afterward, but I later clarified the point...» (Judgment, pages 543 to 544).

He then changed his account to confess to an alleged aggravated corruption offense through improper bribery (Corrupción agravada por Cohecho impropio), a statement that would specifically have enabled him to obtain an abbreviated proceeding (procedimiento abreviado) in May 2005. It is readily apparent that what he actually did was not “clarify the point,” but substantially alter his account because of the benefit represented by an abbreviated proceeding, which ultimately did not even materialize because, through the opportunity criterion, he was granted impunity in exchange for testifying to his new account of the events. Since the two accounts described above cannot both be true, at least one of them must have been false; we can therefore state with certainty that he lied at some point for his own benefit and thereby obstructed the ascertainment of the truth, for which reason the trial court should have been more skeptical when analyzing and assessing his testimony.

The majority, however, overlooked this reality and confidently concluded that [Nombre026] testified disinterestedly in order to assist the Administration of Justice. On the one hand, the majority opinion avoids the issue concerning the examination of Don [Nombre012] as a defendant by stating that the defendant had to request an expansion of his first statement in order to address these “other” facts, as though it were the accused’s responsibility to ensure that he was properly examined. It is Kafkaesque to suggest that defendants are obligated to ascertain the act with which they are charged and learn of the evidence against them. Formal notice of the accusation (intimación) is part of due process (S-IV, N° 1739-92); changing the facts for which a person is being investigated jeopardizes the defendant’s right of defense, and it is incumbent upon the Ministerio Público to examine the accused again and formally advise him of the new facts attributed to him.

On the other hand, the majority disregards defendant [Nombre026]’s lack of consistency, evades the difficulty arising from his evident inconsistency, and instead treats his statement as conclusive evidence and affords it full credibility. This had a major impact on the majority’s decision, considering that, for most of the proven facts, there is no other item of evidence corroborating [Nombre026]’s statement alone. There are grounds for reasonably suspecting that [Nombre026] altered his account throughout the proceedings to obtain different procedural benefits (house arrest instead of pretrial detention, the possibility of agreeing to an abbreviated proceeding, and ultimately the benefit of the opportunity principle (principio de oportunidad)). It is reasonable to suspect that he sought impunity at any cost, including by testifying against third parties (especially [Nombre012]). His testimony was self-interested, so the court necessarily should have been more skeptical and rigorously examined whether other independent evidence existed to confirm or corroborate [Nombre026]’s statements regarding the facts of criminal-law significance.

[Nombre026] was not required to swear to tell the truth; he testified as a defendant assisted by defense counsel, declining to testify or respond to the questions put to him. His defense counsel—even while seated beside him—would whisper in his ear before he responded, as can be seen in the audiovisual recording of the corresponding trial hearings. The majority itself states in its decision that [Nombre026] declined to answer questions posed by counsel for defendants [Nombre012], [Nombre015], and [Nombre021], but the judges say that this does not diminish the credibility of his account because he was being questioned about self-incriminating facts (cf. Judgment, pages 1642 to 1643). This chamber does not accept that criterion as valid because, if the prosecuting authority entirely waived the criminal prosecution against him, it presumably did so precisely so that he would assist in ascertaining the substantive truth. Furthermore, even when [Nombre026] contradicts himself (which he attributes to “confusion”) and the defense points this out to show that he is unreliable, the court majority chose to excuse him, as it did, for example, on page 1723:

«[Nombre026] states that these were emotionally confusing times for him and that he therefore made the mistake of saying that the delivery was made in cash, when in fact it occurred as he testified at trial, namely by resorting to the investment certificates for money belonging to his mother because funds originating from Alcatel and deposited with Banco Saint Georges had been blocked. This panel finds those explanations valid under the rules of logic and common experience because of the various banking transactions carried out by [Nombre026] to make the respective deliveries of money to [Nombre012], together with the fact that it has been corroborated, based on his oral testimony and the documentary evidence, that he did not deliver the stated amount in cash but through 7 bearer certificates...» (Judgment, pages 1723 to 1724).

Finally, with regard to the substance of his statement and what [Nombre026] says occurred, his testimony is likewise unreliable. He says that he did not accept the offer until [Nombre012] gave his approval. He explains that this was because, when the proposal was made to him, he replied that he could not by himself do what they were asking in exchange for the offered “reward,” that he could not “steer the judgment of six fellow members of the board of directors” because it was “something very significant [...] and required authority beyond my capabilities.” He says that he assumed he would need [Nombre012]’s commitment and that, if Don [Nombre012] had said no, he “would have called the whole thing off” (cf. Judgment, page 502), yet it later emerges that neither he nor [Nombre012] had to do anything to steer the other members of the board of directors, according to [Nombre026] himself:

“The award in favor of Alcatel was unanimous; if any member of the board of directors held a dissenting position, that member did not make it public. No one raised an objection. My role in awarding the contract to Alcatel was to cast my vote; I was no more important than the other directors, and therefore, if there was dissent, interference by the President of the Republic was important in the event that the other directors took a different course. I do not know whether that eventuality arose, because that is a matter for the President” (judgment, pages 539 to 540).

“I do not know whether he [[Nombre012]] did something did not do something” (sic, judgment, folio 548).

It is highly suspicious that he claims he required [Nombre012]’s approval to achieve a result that ultimately occurred without requiring any “direction” from him. There is no evidence indicating that [Nombre012] provided any assistance in enabling [Nombre026] to do what the corruptors had asked of him. All of this gives rise to reasonable doubt as to whether the alleged participation that [Nombre026] attributes to [Nombre012] was real, since it is plausible to suppose that it could well have been a false accusation intended to simulate the existence of a defendant more blameworthy than himself and thereby obtain the benefits arising from the discretionary prosecution criterion (criterio de oportunidad) as a cooperating defendant (imputado colaborador). It could even be supposed that, by the time [Nombre026] sought to introduce the alleged participation of [Nombre012], the latter’s influence was no longer necessary. c.- Conclusion.- As we stated above, the defendant (imputado) [Nombre026] is the sole eyewitness to the alleged form of participation that he attributes to [Nombre012] (having instigated or induced him to commit the offense of aggravated corruption in the form of improper bribery (Corrupción agravada en la modalidad de Cohecho impropio)), and his statement is the only direct evidence of that alleged act, which constitutes nothing less than the core of the charge.

This circumstance underscores the need for caution when analyzing and assessing the credibility of his testimony, which—because he was a cooperating witness—had to be confirmed or corroborated by independent evidence, not as to secondary circumstances but as to the essential elements of his account, a condition prescribed by constitutional case law itself that was not satisfied in this matter. The mere circumstance that the alleged protagonists of the events—[Nombre035], [Nombre015], [Nombre026], and [Nombre012]—were in Costa Rica on 3 de diciembre de 2000 (according to the study of their migration records, expense reports, and travel itineraries conducted by the majority of the court in the judgment, cf. pages 1685 to 1690, under the heading “Verification of [Nombre026]’s statements regarding the meeting at [...] and at the home of the accused [Nombre012]”), which was the day on which [Nombre026] says he spoke alone with [Nombre012] at the latter’s home, is not evidence corroborating that [Nombre012] “approved” [Nombre026]’s acceptance of the proposal made by the Alcatel officials; it is such an ambiguous or equivocal indicium (indicio) that, standing alone, it could simply be a coincidence.

Nor could the alleged fact that the circumstances created an urgent need for [Nombre026] to do what his corruptors had asked of him (cf. Judgment, pages 1691 to 1693) be regarded as an indicium that [Nombre026] told the truth when attributing participation to [Nombre012]. Finally, the existence of documents corroborating that [Nombre026] transferred money to [Nombre012] does not necessarily confirm that [Nombre026] told the truth, because they could also corroborate [Nombre012]’s defense, in which he explains that the transfer arose from a personal loan made to him by [Nombre026], which he accepted because he considered the latter’s wealth legitimate. The absence of objective evidence corroborating [Nombre026]’s account concerning the approval and instructions he claims to have received from [Nombre012] is evident. The majority of the trial court minimized the possibility that the temptation to obtain immunity for one or more acts of his own could have led the accused (encartado) [Nombre026] to falsely incriminate other persons as participants; that his interest could have been sufficiently strong to motivate him to deceive the Public Prosecution Service (Ministerio Público) and the judges with lies, even by slandering an innocent person and falsely identifying that person as a co-perpetrator or participant (accomplice or instigator), if by doing so he could minimize or evade his personal responsibility.

Suspicion that a cooperating defendant is lying about another person’s conduct—the basis for discrediting him—is commonplace in legal scholarship, and all the authorities cited in this section are intended to illustrate for the reader why a cooperating defendant is not considered a suitable witness (because he lacks the will to tell the truth and instead intends to deceive). The very nature of the offenses attributed to [Nombre026] is an objective factor that permits reasonable suspicion of him, because if it is specifically alleged that he deliberately breached the duties of the public office entrusted to him, reducing that office to an instrument for acting corruptly and enriching himself, it may be supposed that he lacks the moral sense associated with sincere repentance, especially when other objective factors are also present, such as the lengthy prison sentences that could be imposed upon him and the magnitude of the economic harm caused.

Taken together, these factors may motivate him to become interested in informing on or even slandering third parties if, by doing so, he can mitigate the rigors of the criminal justice system or obtain a procedural advantage as valuable as immunity, in addition to the possibility of retaining through this means a large portion of the money and property acquired through the gifts he received. And if one adds to the foregoing that [Nombre026] has contradicted himself and has substantially modified his version of events to suit his convenience (which is likewise unreliable on the merits), it becomes clear why this chamber considers him unworthy of the credibility afforded to him by the majority of the trial court. [Nombre026] neither acted nor testified sincerely and disinterestedly, nor did he do so “...so that situations such as his might prompt social reflection” (Judgment, pages 1632 to 1633).

The majority of the trial court found that “his statements are entirely credible and disinterested” (Judgment, page 1642); this assumption by the judges is not supported by any objective evidence. On the contrary, the process of change evident in his version of events is an objective factor supporting the reasonable conclusion that he acted in a biased or self-serving manner, motivated by his own interests or convenience. B) Extinguishment of the criminal prosecution (statute of limitations) (Extinción de la acción penal (prescripción)). In this matter, the rules governing the statute of limitations for criminal prosecution were erroneously applied. The statute of limitations is one of the grounds for extinguishment of a criminal prosecution (article 30, subsection e, of the CPP), and it is worth recalling that the Constitutional Chamber (Sala Constitucional) has described the nature of the statute-of-limitations doctrine in the following terms:

“This Chamber has stated on numerous occasions that the statute of limitations for criminal prosecution constitutes a procedural sanction imposed in response to the inaction of the Administration of Justice, whose immediate purpose is to guarantee legal certainty both for the persons involved in the case and for the community at large” (Sala Constitucional, N° 856-2001 de las 15:18 horas del 31 de enero de 2001).

Article 62 of the “Law against Corruption and Illicit Enrichment in Public Office” («Ley contra la corrupción y el enriquecimiento ilícito en la Función Pública») (Ley N° 8422 de 6 de octubre de 2004, effective upon its publication in La Gaceta N° 212 del 29 de octubre de 2004), amended the statute-of-limitations regime for criminal prosecutions concerning offenses against the duties of public office, as follows:

“Article 62.-Statute of limitations for criminal liability. Criminal prosecutions concerning offenses against the duties of public office and those provided for in this Law shall be time-barred in the manner established by the applicable legislation; nevertheless, the following rules shall govern:” “a) Once the running of the statute of limitations has been interrupted, the periods established in article 31 of the Code of Criminal Procedure (Código Procesal Penal) shall begin to run again for a new period, without any reduction.” “b) In addition to the grounds provided for in article 33 of the Code of Criminal Procedure, the running of the statute of limitations for criminal prosecution may be interrupted by a declaration that an affirmative act or omission of the administrative authority was unlawful, or by the annulment of administrative acts and contracts related to the corresponding offense, whether the ruling is issued in judicial or administrative proceedings.” It is readily apparent that subsection a) of article 62 of Ley N° 8422 introduced a significant exception to the provisions of the first paragraph of article 33 of the Code of Criminal Procedure (amended by Ley N° 8146 de 30 de octubre de 2001, published in La Gaceta N° 227 de 26 de noviembre de 2001) regarding the legal effect of interrupting the statute-of-limitations period:

“Once the proceedings have commenced, the periods provided for in the article before the preceding article shall be reduced by half for purposes of calculating them in order to suspend or interrupt the running of the statute of limitations…” It has been debated throughout the proceedings whether subsection a) of article 62 of Ley N° 8422 applies to this matter, specifically whether, once the running of the statute of limitations has been interrupted, the period established in article 31 of the CPP begins to run again for a new period, with or without any reduction. This is an issue concerning the temporal application of the law, which is resolved through the direct application of two provisions of our Political Constitution (Constitución Política), namely articles 34 and 129, which provide as follows:

“Article 34.- No law shall be given retroactive effect to the detriment of any person, or of that person’s acquired property rights or settled legal situations.” “Article 129.- Laws are binding and take effect on the date designated therein; if no such date is designated, ten days after their publication in the Official Gazette.” “No one may claim ignorance of the law except in the cases authorized by the law itself.” “Neither the waiver of laws in general nor the specific waiver of laws concerning the public interest shall be effective.” “Acts and agreements contrary to prohibitory laws shall be null and void unless those laws provide otherwise.” “A law shall not be abrogated or repealed except by a subsequent law; disuse, custom, or contrary practice may not be invoked against its enforcement. By referendum, the people may abrogate or repeal it in accordance with article 105 of this Constitution.” (As amended, this final paragraph, by Artículo 1 inciso d) de la Ley 8281 de 28 de mayo de 2002, published in La Gaceta No. 118 de 20 de junio de 2002).

Pursuant to these rules, Article 62 of Ley N° 8422 may not be given retroactive effect to the detriment of the accused (imputado), and it must be deemed mandatory and effective as of the date designated by that law, namely the date of its publication, which occurred on 29 de octubre de 2004. By that date, the limitation period (plazo de prescripción) had already been interrupted in the case of Dr. [Nombre012] by the first formal accusation of the acts (pursuant to Article 33(a) of the Code of Criminal Procedure), and therefore the limitation period was reduced by half and began to run anew as of 15 de octubre de 2004 (the date on which the accused’s formal examination (indagatoria) was conducted), because that was the effect provided for by the law in force at the time of the interrupting event. The initial limitation period for the criminal action (acción penal), in the case of Dr. [Nombre012], is five years (pursuant to Articles 31 and 32 of the Code of Criminal Procedure and Articles 46, 74, 340, and 342 of the Criminal Code, since the maximum term of the penalty is five years, given that he is accused of “Incitement to the offense of Aggravated Corruption in the form of Improper Bribery”).

Once the proceeding commenced, that period was reduced by half for purposes of calculating suspension or interruption of the limitation period, and it was interrupted by the examination of 15 de octubre de 2004 (cf. Volume II, folios 552 to 558), causing a period reduced by half (that is, two years and six months) to begin running anew; that period elapsed without any ground for suspension of the criminal action and expired on 15 de abril de 2007. The next interrupting act provided for by law was the ruling that scheduled the preliminary hearing for the first time (Article 33(c) of the CPP), an event that did not occur until 10 de setiembre de 2007 (by means of the ruling issued at 13:30 on 10 de setiembre de 2007, cf. Volume XX, folios 8452 to 8453). Consequently, the criminal action against Dr. [Nombre012] was indeed extinguished by operation of the limitation period. Nevertheless, this Chamber is mindful that the final paragraph of Article 376 of the Code of Criminal Procedure provides that:

“When application of the complex-case procedure (procedimiento complejo) is ordered during the preparatory or intermediate stages, the reduction by half of the limitation period provided for in Article 33 of this Code shall not apply.” (As added by Ley N° 8146 de 30 de octubre de 2001, published in La Gaceta N° 227 de 26 de noviembre de 2001).

However, it is not enough for the ruling designating the matter as subject to complex-case processing (tramitación compleja) to be issued during the preparatory or intermediate stages for the reduction by half of the limitation period not to apply, since it plainly cannot be applied retroactively to cases in which a ground for interruption had already taken effect and—for the benefit of the accused—reduced the period by half, as occurred in this matter. The ruling designating the matter for complex-case processing was not issued until 3 de marzo de 2006 (by means of the ruling issued at 15:00 on 3 de marzo de 2006, cf. Volume XVII, folios 7506 to 7566) and was upheld by decision N° 403-06 issued at 13:30 on 23 de junio de 2006, cf. Volume XVII, folios 7703 to 7707), because the issuance of that ruling cannot revoke or nullify the legal effect that the law itself assigns to an interrupting act that has already occurred. We must bear in mind that, as a general rule, rulings are not enforced during the period for filing an appeal or while the appeal is pending, unless the law provides otherwise (Article 444 CPP). The second paragraph of Article 379 of the CPP emphasizes that:

“The Courts shall take special care to ensure that application of the special rules [governing the procedure for matters subject to complex-case processing] does not undermine the principles and guarantees established in the Constitution, in the international or Community law in force in Costa Rica, and in the law.” If the ruling designating the matter for complex-case processing (having been issued during the preparatory or intermediate stages) were retroactively attributed the legal effect provided for in the final paragraph of Article 376 CPP, this would violate the aforementioned constitutional rules governing the temporal application of the law and the very principle of legality established in Article 1 of the CPP, unjustly giving the Public Prosecutor’s Office—and the court itself—the opportunity to circumvent the procedural consequence represented by the limitation of the criminal action.

Moreover, Costa Rican legal scholarship has analyzed the scope of the final paragraph of Article 376. Specifically, it includes the academic views of two renowned jurists (both former alternate justices of the Sala Tercera, former judges of the Tribunal de Casación Penal, and professors at the Facultad de Derecho de la Universidad de Costa Rica), whose writings were brought to the court’s attention by defense counsel: namely, the following texts by licenciada Rosario Fernández Vindas and doctor Javier Llobet Rodríguez. The former explains:

“Consistent with this, if a proceeding is designated for complex-case processing after the ‘first formal accusation of the acts against the defendant in offenses subject to public prosecution,’ an act which, pursuant to Article 33(a) of the C.P.P., entails interruption of the limitation period for the criminal action for a period reduced by half, that reduction must apply because, at that time, the proceeding would not be subject to complex-case processing but rather to ordinary processing. In short, it is improper to give retroactive effect to the designation as complex for purposes of the exception established regarding the limitation period for the criminal action, because this is tied to the performance of certain acts, which ultimately determines whether the reduction in the time required for the criminal action to become time-barred applies. Thus, if the act interrupting the limitation period for the criminal action occurs while the designation of the proceeding for complex-case processing, issued during the preparatory or intermediate stages, is in force, that reduction does not apply, and the full period must be calculated from that point onward.

Conversely, if the act interrupting the limitation period occurred before complex-case processing of the matter had been ordered—that is, while the proceeding was being conducted under the general, ordinary procedure—the reduced limitation period must apply and would remain in effect unless and until another act capable of interrupting that limitation period occurred. If that subsequent act occurred after complex-case processing had already been authorized, and thus under the exception, the period for interruption of the limitation period for the criminal action would have to be calculated in full (not reduced by half) from that specific act onward” (emphasis added, FERNÁNDEZ VINDAS, Rosario: Procedimiento para asuntos de tramitación compleja, in A.A.V.V., Derecho Procesal Penal Costarricense, Volume II, Asociación de Ciencias Penales de Costa Rica, 1ª ed., San José, 2007, pp. 923 to 924).

For his part, regarding the third paragraph of Article 376 of the CPP, doctor Llobet Rodríguez comments as follows:

“This paragraph was introduced by the amendment enacted through ley 8146 del 30 de noviembre del 2001. The correct approach is that the non-reduction of the period may not be applied retroactively. Thus, when a ground for interruption of the limitation period arose before the designation for complex-case processing, the period that continues to run is reduced by half. In that situation, when a new ground for interruption of the limitation period arises after the designation for complex-case processing, the provision that the limitation period is not reduced by half does apply, and therefore the period running from that interruption is the full period (on this point, see: Cf. Fernández Vindas. Procedimiento..., pp. 923-924)” (emphasis added, LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4ª ed., San José, Editorial Jurídica Continental, 2009, p. 567).

However, in the trial court’s view, once the designation for complex-case processing became final (on 23 de junio de 2006), it did have the effect provided for in the final paragraph of Article 376: namely, that the reduction by half of the limitation period provided for in Article 33 would not apply. It so ruled unanimously in its ruling issued at 8:00 on 14 de mayo de 2010 (cf. Volume XXVII, folios 13352 to 13408 verso). That ruling states as follows:

“The final paragraph of Article 376 of the Code of Criminal Procedure was added through the amendment enacted by Ley N° 8146 de 30 de octubre de 2001, published in La Gaceta N° 227 de 26 de noviembre de 2011, and therefore it is and has been a rule in force since several years before the commencement of this proceeding, which dates from late 2004, and before the accused gave their respective statements, all of which were given beginning in octubre de 2004. Although it is true that, in principle, the limitation period was reduced by half when the first act interrupting the limitation period occurred (the accused’s statements, pursuant to Article 33(a) of the Code of Criminal Procedure), at which time the proceeding, at which time the proceeding was being handled as an ordinary proceeding, it is also true that, from that same moment and from the publication of the aforementioned procedural amendment, the defendants were aware, in principle, that this reduction could cease to have effect if the proceeding came to be handled as a complex case, since Article 376 so provided.

Accordingly, the continued effect of the reduction of the limitation period was always contingent upon the proceeding continuing to be handled as an ordinary proceeding, and that effect would be lost if the rules governing complex-case processing were applied, unless, of course, the limitation period had expired before that event. In such a case, all the circumstances extinguishing the criminal action by operation of the limitation period would already have arisen under the rules governing ordinary proceedings, and it would have to be so declared, insofar as the accused’s legal position would already have been fully settled and application of complex-case processing could not reverse that state of affairs; any subsequent ruling recognizing it would have declaratory rather than constitutive effect.” “Accordingly, eliminating the effect of reducing by half the limitation period in cases in which the limitation period then running had not expired when the designation for complex-case processing became final does not constitute any retroactive application of Article 376 of the Code of Criminal Procedure or of the judicial ruling applying it, nor does it impair the principle of legal certainty, because the accused knew from the commencement of the proceeding what to expect in that regard” (Volume XXVII, folio 13364).

That reasoning contravenes the cited constitutional provisions; its conclusion is fallacious, because the mere fact that the final paragraph of Article 376 has been in force since it was added by Ley N° 8146 in 2001 does not mean that the defendants could have foreseen—much less that they were required to accept or “abide by”—the court’s retroactive interpretation and application of that provision in order to “reverse” the effect of an interrupting act completed before the decision ordering that the matter be handled as a complex case was issued. If the trial court itself acknowledges that the statute of limitations on criminal prosecution (prescripción de la acción penal) “is a sanction for inactivity in the processing and adjudication of the case” (cf. Judgment, folio 788), it is unclear why it chose an interpretation that defeats the purpose of that ground for extinguishing the criminal action, giving the prosecutor and the court itself the possibility of “reversing” that effect so that the criminal action could, so to speak, be revived, thereby circumventing the procedural sanction.

Nevertheless, it was under that criterion that the decision of May 14, 2010 analyzed the case of each defendant and ruled as follows:

«Unanimously, the statute-of-limitations defenses (excepciones de prescripción) raised on behalf of defendants [Nombre004]; [Nombre001]; [Nombre007], [Nombre009], [Nombre018], [Nombre015], and [Nombre021] are denied. The statute-of-limitations defenses raised on behalf of [Nombre024] and [Nombre012] are reserved for determination at the time of judgment.» (Volume XXVII, folio 13407, front and back).

When issuing the judgment, the court returned to the issue in Considerando II of the judgment, subsection A), entitled “Statute-of-limitations defense concerning the criminal action on behalf of defendants [Nombre007], [Nombre021], [Nombre024], and [Nombre012],” and ruled under the same criterion (although this time by majority vote, because Judge Camacho Morales dissented on this point), reiterating that this was not a retroactive application of the law, but rather “the immediate effectiveness of a procedural provision in a pending criminal case” awaiting resolution. It offered a convoluted argument that the principle of non-retroactivity (principio de irretroactividad) applies only to substantive criminal law, and not to procedural rules or doctrines, such as the statute of limitations (cf. judgment, pages 786 to 800). In any event, in this Chamber’s view, that argument neither justifies nor authorizes disregarding the legal effect—an immediate one, it might be said—produced by the examination of the accused (indagatoria) under the legislation in force when that interrupting act occurred.

Judge Camacho Morales, as stated above, dissented on this issue, changing the position that he had previously shared with his fellow judges in the decision of May 14, 2010 (cf. dissenting opinion, judgment, pages 1997 to 2012), and relied on case law that is relevant to mention here. First, he cited the Sala Constitucional, according to which:

«Because proceedings constitute a sequence of individual acts previously regulated by law, new legislation may properly govern acts carried out after it enters into force, while the prior law governs acts performed while it was formally in force, before its repeal, so that each act is assessed under the law in force when it was performed» (Sala Constitucional, N° 4397-99 at 16:06 hours on June 8, 1999).

He also mentioned a judgment of the Tribunal de Casación concerning specifically the application of Article 62 of Ley N° 8422, which states:

«Such a provision is effective only from its entry into force for cases in which any of the interrupting acts provided for by procedural law subsequently occurs, and provided that the period had not already been reduced under the rules previously in effect, because procedural acts are governed by the procedural law in force when they occur, not by laws governing acts that had already occurred. In other words, the full limitations period could not be restored on the basis of a provision that was not yet in force when, under the legislation that did govern, a ground having a reducing effect occurred» (Tribunal de Casación Penal, N° 2006-0132 at 10:30 hours on February 23, 2006).

In light of everything set forth in this subsection, this Chamber finds that the trial court erroneously applied the rules governing the limitations period for criminal prosecution, because in this case the criminal action against Dr. [Nombre012] was indeed extinguished. The judges signing this judgment find that the Ministerio Público belatedly requested application of the special provisions established for the so-called «Procedure for complex cases (Procedimiento para asuntos de tramitación compleja)» provided for in Articles 376 to 379 CPP; had it requested their application in a timely manner, it could have prevented the limitations period from being reduced by half. This is another detail that, together with the manner in which the exercise of prosecutorial discretion (criterio de oportunidad) was granted to [Nombre026], demonstrates the Ministerio Público’s deficient management of the criminal action in this case.

For all the reasons stated, the appeal is granted, and the criminal action is declared extinguished because the limitations period has expired. Documentary evidence (prueba documental) N° 588 and all evidentiary items directly dependent upon it are declared null and void. The criminal conviction entered against Mr. [Nombre012] is vacated, and he is instead directly acquitted of all punishment and liability because, given the nullity of the essential evidence and the expiration of the limitations period, it is impossible to order a retrial or reconsideration of the decision insofar as the criminal action is concerned. The matter must therefore be decided directly (Article 465, third paragraph, of the CPP) on the basis that his guilt was not established by a final judgment, pursuant to Article 39 of the Constitución Política. The challenged judgment remains undisturbed insofar as it acquitted him of four offenses of Illicit Enrichment (Enriquecimiento ilícito).

As to the civil aspect of the judgment, it shall be governed by what is stated in Considerando VI, which decides the appeal filed by attorney Cristian Arguedas Arguedas on behalf of Dr. [Nombre012]. Given the manner in which this matter has been resolved, it is unnecessary to rule on the remaining claims raised by the appellant in his appeal, because the corresponding relief sought has already been granted.

III. APPEAL BY LIC

RAFAEL ENRIQUE GAIRAUD SALAZAR.- Lic. Gairaud Salazar, defense counsel for Mr. [Nombre012], expressed his disagreement with the judgment through various filings. The first was an “appeal” (recurso de apelación), which he filed on 2 de junio de 2011 (cf. Volume XXXV, folios 16894 to 16905). The second was an “appeal on points of law” (recurso de casación), which he filed on 4 de agosto de 2011 (cf. Volume XXXVII, folios 17840 to 17907). The third was an “appeal against the judgment” (recurso de apelación de sentencia) (cf. folios 172768 to 172837), through which Lic. Gairaud Salazar adapted his previous claims into an appeal against a criminal judgment, in accordance with Transitory Provision III of Law No. 8837 of 3 de mayo de 2010 (“Creation of the appeal against judgments, other reforms to the system of challenges, and implementation of new rules on oral proceedings in criminal cases”), requesting that the initial appeal he had filed be included.

He notes that the majority opinion of Judges Rosaura García Aguilar and Ileana Méndez Sandí (Judge Jorge Camacho Morales dissented) contains evident errors in the determination of the facts and in the admission and assessment of the evidence; that the reasoning is contrary to due process; and that the sentence imposed on his client is disproportionate and contrary to law because the proven conduct does not satisfy the elements of the charged offense of Instigation to Aggravated Corruption. He alleges failure to observe Articles 22, 142, 175, 178, 184, 204, 361, 363 subsection b), and 369 subsections c), d), and j) of the Code of Criminal Procedure; Article 62 of the Law against Corruption and Illicit Enrichment; the Universal Declaration of Human Rights and the American Convention on Human Rights (“Pact of San José”); and Articles 47, 71, 340, and 342 of the Criminal Code. He requests that the judgment be declared ineffective and invalid and that the case be remanded for new proceedings, or that [Nombre012] be acquitted directly, for the following reasons.

• A)Lack of reasoning and violation of sound rational judgment (sana crítica racional). The majority did not provide reasons for its decision. Nor did it explain the weight assigned to much of the evidence, which was not even analyzed but merely mentioned in the decision, despite the defense’s express request that it be analyzed. The majority treated the statement of cooperating defendant (imputado colaborador) [Nombre026] as conclusive evidence, without considering that his account was not corroborated by any other evidence. Nor does it recognize that, according to [Nombre026]’s own account—that he initially accepted the corrupt proposal made at the restaurant [...]—it is evident that he had resolved to commit the offense from the very moment he accepted the proposal, long before the alleged meeting with [Nombre012], and that what he allegedly required from the latter was assistance if “the matter became complicated,” something that, according to [Nombre026], never occurred.

Since [Nombre026] had accepted the offer of a gift, it is therefore evident that [Nombre026] had already resolved to act before allegedly speaking with [Nombre012], and thus the latter cannot be regarded as having instigated anything. The majority accepts everything stated by [Nombre026] as true and does not even fully specify the circumstances of manner, time, and place in which the offense was allegedly completed or what [Nombre012]’s alleged assistance would have entailed. It fails to decide the defense’s challenges to the application of prosecutorial discretion (criterio de oportunidad) in favor of [Nombre026], claiming a lack of jurisdiction, which is not only unlawful but also constitutes an abdication of the authority vested in the court whose decision is under appeal, since the court is required to decide every matter argued. [Nombre026] could not benefit from such prosecutorial discretion because his culpability (reprochabilidad) was equal to or greater than that attributed to counsel’s client: “...this is evident—the appellant states—when, in analyzing the civil action, the Court itself unanimously indicates that it is impossible to establish a single joint and several liability among the alleged participants, identifying separate chains of liability, with [Nombre026] appearing in two of them while my client appears in only one.

The judgment itself thus establishes [Nombre026]’s greater culpability, not to mention that [Nombre026] is identified as the PRINCIPAL PERPETRATOR and my client merely as a participant; that [Nombre026] had absolute CONTROL OVER THE ACT and my client did not; and that [Nombre026] committed many more offenses than the one relating to the procurement of the 400 mil cellular telephone lines. This makes it clear and unmistakable that [Nombre026] was not eligible to benefit from the impunity granted through prosecutorial discretion, because his culpability was not less than that of my client. None of this was examined by the majority of the Court, which unlawfully failed to fulfill its duty to oversee the legality of the acts occurring at trial and refused to determine whether that mechanism was applicable, as well as whether [Nombre026]’s statement was invalid...” Article 62 of the Law against Corruption and Illicit Enrichment was likewise erroneously applied, as it was enacted long after Mr. [Nombre012] ceased to be a public official and therefore could not be applied to him retroactively, as the majority that handed down the conviction in these proceedings unlawfully did, thereby contradicting an earlier interlocutory ruling that the judges themselves had issued, stating that, in [Nombre012]’s case, the only matter requiring determination was the precise applicable criminal offense.

He also objects to the rejection of the defense’s argument concerning the acts about which [Nombre012] was formally questioned as a defendant (indagado): “The court does not analyze the substance of the defense’s objection that Mr. [Nombre012] was questioned on the basis of [Nombre026]’s initial statement, something he himself acknowledged at trial, in which he claimed for his own benefit that what had occurred was the receipt of gifts for a completed act, whereas the indictment and trial concerned an alleged act of Aggravated Corruption. These are plainly entirely different acts: those about which our client was questioned and those for which he was tried, in violation of the principles of inviolability of the defense, due process, and formal notice of the charges (intimación). The majority opinion evades the issue with the absurd assertion that the defendant could have expanded his statement to address these other or new acts.

I repeat that this is absurd because the burden of making the accusation rests with the prosecuting authority, not the defense. The issue therefore remains unresolved, as does the indisputable fact that the former president was not questioned about the acts for which he was tried. In his first statement, [Nombre026] never said that he had received a corrupt proposal, that he accepted it, and that for that reason he favored ALCATEL in exchange for a subsequent gift. Our client was questioned on the basis of that initial statement, but he was later tried for acts that [Nombre026] recounted afterward and about which my client WAS NEVER QUESTIONED...,” which invalidates the entire proceeding. The evidence supports a finding that [Nombre012] engaged in no unlawful conduct, but the court, absurdly and illogically, treated [Nombre026]’s spurious account as conclusive evidence and found it fully credible.

Regarding the sentence imposed, the majority opinion plainly lacks reasoning; it is absurd to impose the maximum sentence on a mere participant when the principal perpetrator is granted absolute impunity. As evidence, he requests: a) the videos of the trial proceedings, to establish [Nombre026]’s actual account at trial and his acknowledgment of the moment when the offense was completed; and b) that convicted defendant [Nombre027] be called to testify as to whether Alcatel made a corrupt proposal (cf. appeal in Volume XXXV, folios 16894 to 16905). B) Violation of due process in determining the facts. If the defendant granted prosecutorial discretion, [Nombre026], acknowledges that he “initially accepted” the proposal made to him by Alcatel officials (proven fact 88), the offense had already been completed, and the alleged subsequent instigation attributed to [Nombre012] is impossible. In any event, the proven fact cannot be deemed established solely on the statement of cooperating defendant [Nombre026].

If the court had doubts regarding the meaning of the phrase “initially,” it should have adopted the interpretation most favorable to the defendant, pursuant to the principle of in dubio pro reo (cf. appeal, Volume XXXIX, folios 172770 to 172772). C) Violation of due process in the admission and assessment of evidence. This is because [Nombre026]’s statement was treated as evidence rather than as a means of obtaining evidence; upon its admission, it was given the weight of conclusive evidence, and facts of significance—such as the alleged meeting and the alleged acceptance attributed to [Nombre012]—were deemed established solely on the basis of his statement (cf. appeal, folios 172772 to 172773). D) Violation of due process in determining the sentence. The majority upholds [Nombre026]’s impunity but instead imposes the maximum sentence on [Nombre012] for conduct that does not even constitute the offense of instigation; but even if it were considered criminal, it plainly amounted to minimal participation, and thus the sentence does not reflect the criteria of proportionality and reasonableness established in our law.

He therefore requests that it be reduced to the minimum and that the benefit of a suspended sentence (ejecución condicional de la pena) be granted (cf. appeal, folios 172773 to 172774). E) Lack of reasoning in the judgment issued by the majority. Proven facts No. 71 to 75 are supported by no evidence other than the uncorroborated statement of cooperating defendant [Nombre026], which was neither corroborated nor validated by any lawful evidence obtained through him (as a “source of evidence”). The judges do not explain how [Nombre012] “asked” and then “ordered” [Nombre026] to arrange payments from Alcatel. In the case of co-defendant [Nombre018], several allegedly circumstantial elements corroborate [Nombre026]’s account regarding his participation, but that is not the case with respect to [Nombre012], since no reference is made to any direct or circumstantial evidence corroborating what [Nombre026] says.

He testified as a defendant and enjoyed all the rights and guarantees attaching to that status, was assisted by defense counsel, and was permitted to decline to answer questions posed to him; his counsel was even allowed to whisper answers in his ear for him simply to repeat, something absurd under any legal system, since defense counsel cannot answer for the defendant (he requests that the video of [Nombre026]’s statement under questioning by defense counsel be viewed). It is clear that [Nombre026] sought impunity at all costs by testifying against third parties, meaning that his statement was self-serving and necessarily required support from other evidence. [Nombre026] changed his account of 31 de setiembre del 2004, when he confessed to the alleged receipt of gifts, as he himself states in his trial testimony transcribed in the judgment: “I did say in that statement that I received the money or reward from Alcatel after the award was approved by the board of directors; I believe I gave that account on 30 de setiembre de 2004; I do not recall whether I discussed it with my attorney.

What I have is a legal veneer, but I have already explained here that the truth is otherwise; I had already said that here, and what I said here is true. I did not lie; I simply tried at that time to cover or protect myself, but I later clarified the details. Alcatel offered me 1.5% or 2% [...] In that statement of 30 de setiembre, I admitted my responsibility and gave a detailed description of them; in an effort to justify myself, I stated that the offer would be consummated later, but I subsequently clarified the point...” [Judgment, pages 543 to 544]. He later changed that account to confess to alleged aggravated corruption through improper bribery (Corrupción agravada por Cohecho impropio), a statement made specifically so that he could be granted an abbreviated procedure (procedimiento abreviado), with a custodial sentence (pena privativa de libertad) of only four years, when the prevailing case law was based on the principle that “house arrest (arresto domiciliario)” did count toward the sentence.

Thus, [Nombre026] would have served half the sentence and could have requested application of the benefit under Article 55 of the Criminal Code by the time he gave his second version of events. Moreover, that house arrest was, strangely, maintained for the cooperating defendant (imputado colaborador)—when no other defendant was subject to precautionary measures (medidas cautelares) restricting freedom of movement—until the point at which the possible sentence to be imposed would have been fully served under that case law, which has now been entirely discredited by the Third Chamber. [Nombre026] obtained application in his favor of the opportunity criterion (criterio de oportunidad) by virtue of that new statement, thereby securing impunity not only for the offense that the Prosecutor’s Office linked to [Nombre012], but also for seven or eight additional offenses, some involving Alcatel itself and money received as proceeds of corruption [he cites the statement of the OIJ expert, [Nombre036], who testified that [Nombre026] received money before and after the four hundred thousand lines, without it having been established that he required outside support to receive that money], as the Prosecutor’s Office stated during the proceedings, only to recant later, but at a point when all these offenses were already time-barred or in the process of becoming time-barred. [Nombre026] provided no independent evidence corroborating his account.

It is not true that, beginning with his first statement, he displayed a clear intention to cooperate with the Administration of Justice, because the fact is that he lied in one of his two versions, since they contradicted each other. In the first version, he says that Alcatel officials contacted him to offer him a gratuity (dádiva) after the award of the four hundred thousand lines; in his second version, he says that they contacted him before the award: “How can it be said—Licenciado Gairaud Salazar asks—that [Nombre026] cooperated with Justice from the outset, if he later testified, in order to obtain the benefit of the abbreviated procedure or the opportunity criterion, that he was contacted before the award and offered the gratuity, at a time when, while enjoying house arrest, he was first offered an abbreviated procedure carrying a negligible sentence (whereas my client was given the maximum sentence as the alleged instigator), and then an opportunity criterion granting him ABSOLUTE IMPUNITY, even though the Prosecutor’s Office identified him in its closing arguments as the DIRECT PERPETRATOR WITH FULL CONTROL OVER THE ACT.

In this regard, we must say that if the two versions are diametrically different, [Nombre026] is lying in one of them. If it is the first, his interest was not in cooperating with the Administration of Justice, but in hindering and obstructing it; and if it is the second, he likewise lies for self-serving reasons in order to obtain a benefit. Thus, the contention—apparently dismissed by the majority judges—that his motives for testifying are spurious is fully corroborated, in contrast to the naïve and biased account in the majority opinion.” Facts No. 85 to 93, deemed proven against [Nombre012], lack a legitimate basis, because [Nombre026]’s account alone is insufficient; the trial court required independent evidence corroborating the cooperating witness’s account. The OIJ’s Economic and Financial Crimes Section determined that the alleged gratuities delivered by [Nombre026] to [Nombre012] did not correspond to the 60% that [Nombre026] claimed had been agreed upon, which constitutes “counter-indicative evidence (contra-indicio)” supporting the conclusion that [Nombre026] was not telling the truth.

The judges misunderstand the nature and applicability of the opportunity criterion (“Crown witness (testigo de la corona)”) and err by treating [Nombre026]’s account as conclusive evidence. [Nombre012]’s alleged participation was not part of the corrupt agreement among [Nombre026], [Nombre035], and [Nombre015], and the judges disregard the fact that, in his statement, [Nombre026] says that the meeting took place in noviembre del 2000, not in the first week of diciembre. The majority sought to make reality fit what [Nombre026] said, violating the principle—accepted by the judges themselves—that [Nombre026]’s account had to be corroborated on factually relevant matters of criminal significance. Nor did the majority address another piece of “counter-indicative evidence” raised by the defense in its closing arguments, which discredits [Nombre026]: the meetings at [...] and at [Nombre012]’s home could not have occurred on 3 and 4 de diciembre de 2000, because on 5 de diciembre [Nombre026] attended a vote of the ICE Board of Directors and voted contrary to Alcatel’s demand (he voted for direct contracting (contratación directa) instead of contracting open exclusively to Alcatel for the procurement procedure).

This also shows that [Nombre026]’s statement cannot be regarded as truthful or as corroborated by any direct or indirect evidence; it cannot be treated as witness testimony because he was a defendant with a direct interest in the outcome of the proceedings. He requests that the judgment be vacated and a retrial ordered (see appeal, folios 172774 to 172800). F) Lack of reasoning (falta de fundamentación) in the judgment because it failed to analyze and rule on the following objections raised by the defense:

a.- On 5 de diciembre, [Nombre026] attended a vote of the ICE Board of Directors and voted contrary to Alcatel’s demand (he voted for direct contracting instead of contracting open exclusively in favor of Alcatel for the procurement procedure). This discredits what [Nombre026] says about the alleged meetings at “[...]” and at [Nombre012]’s home and demonstrates that no such corrupt agreement existed as of 5 de diciembre, that [Nombre026] lied, and that the alleged meeting at [Nombre012]’s home—on which the majority bases don [Nombre012]’s alleged criminal liability (responsabilidad penal)—did not occur (see appeal, folios 172800 to 172803).

b.- The effect of [Nombre027]’s vote on the Board of Directors on the alleged existence of a corrupt agreement between Alvatel and several ICE directors, which constitutes the supposedly factual basis that, according to the majority, lends credibility to [Nombre026]’s account. “The judgment deems it proven that Alcatel’s process of buying people’s loyalty occurred between abril and agosto del año 2000 and that, through this conduct attributed to the defendants who were Alcatel officials ([Nombre035] and [Nombre015]), at least three directors were recruited: two appointed by my client ([Nombre027] and [Nombre026]) and one who had a close relationship with him, although appointed by President [Nombre051] ([Nombre004]). In short, in order to deem [Nombre026]’s statement truthful, as well as the process of inducement to which he claims to have been subjected by Alcatel officials, the majority opinion deems it proven at least that, by the end of año 2000, three ICE directors had been bought by the French multinational.

Nevertheless, when recounting the various sessions of the ICE Board of Directors concerning mobile telephony, the majority opinion itself states that, in marzo del año 2001, [Nombre027] took actions contrary to Alcatel’s interests; specifically, he requested reconsideration and reversal of a prior vote that had resolved to purchase 160,000 GSM-technology lines from Alcatel, but [Nombre027] did not have enough votes for that request for reconsideration to be granted [...] If the court, in its majority opinion, deems this proven on the basis of the documentary evidence comprising the minutes of the ICE Board of Directors and has stated that, by the end of 2000, [Nombre027] was a key player—necessarily a player bought by Alcatel—in order thereby to corroborate [Nombre026]’s account, it is evident that resolving this specific issue, as we requested, was essential not only to establish the existence of the corruption scheme, but also to establish the truthfulness of [Nombre026]’s own account.

The majority plainly evaded this issue and did not even address this aspect in its ‘reasoning,’ even though, I reiterate, the defense expressly requested a ruling on it in order to demonstrate the impossibility of lending credibility to the account of the self-confessed [Nombre026]. Both arguments were presented to the Court, and it failed to rule on the substance of the defense’s submissions with a reasoned decision” (see appeal, folios 172803 to 172805).

c.- [Nombre026] gave two versions of events during the proceedings: the first on 30 de setiembre del 2004, in which he says that he received a gratuity from Alcatel without any prior promise; and another in mayo del 20005, given in connection with the application in his favor of an abbreviated procedure that later resulted in an opportunity criterion, in which he states that the proposal was made before the award, that he undertook to fulfill three conditions (which, as stated above, he failed to fulfill on 5 de diciembre de 2000), and that [Nombre012]’s alleged participation was no longer limited to receiving part of those gratuities, but extended to allegedly participating in the process by which [Nombre026] formed the decision to commit the offense. The two versions are contradictory and cannot both be true, yet the court does not analyze the defense’s challenge to [Nombre026]’s credibility (see appeal, folios 172805 to 172806).

d.- The defense also argued that, given the obvious contradiction between [Nombre026]’s versions, it was necessary to determine which was true and, if that was impossible, to adopt the version most favorable to the parties, pursuant to the in dubio pro reo principle. But the majority fails to resolve that argument, which has decisive consequences for the disposition, because “...if the offense was Receipt of Gratuities (Recepción de Dádivas) and my client, under the version of 30 de setiembre, did not participate in [Nombre026]’s decision to commit the offense, then, as we explained at length in our closing arguments, the alleged wrongful conduct would hypothetically have consisted merely of my client’s receipt of gratuities. That conduct was not criminally proscribed (atípica), because they would have been received when my client was not a public official, an essential element of the objective offense definition (tipo objetivo), and therefore the conduct would go unpunished, or at least the statute of limitations would have run” (see appeal, folios 172806 to 172807).

• G)Violation of the rules of sound judicial reasoning (sana crítica), because the judgment is not coherent but contradictory concerning essential matters bearing on the credibility that may be accorded to the account given by defendant [Nombre026] and the conditions that Alcatel allegedly required him to fulfill as part of an alleged offer of corruption made to him at “[...]” in Alajuela.

“On the one hand, in its analysis of the merits, the judgment maintains that [Nombre026]’s account is entirely credible and that, with regard to the existence of the unlawful proposal, it has been established that [Nombre026] was offered a percentage of the value of the contract for four hundred thousand cellular telephone lines, in exchange for satisfying three conditions: 1) ensuring the migration to GSM technology; 2) ensuring that such migration was carried out through an open competitive procurement procedure; and 3) once the technical departments recommended Alcatel’s bid, voting in favor of it. Notwithstanding the foregoing, the majority opinion itself acknowledges that the decision to migrate was made by the ICE technical departments and that, as [Nombre026] himself stated, he had no involvement in them, nor did he ever discuss or attempt to do anything to bring about the migration. Second, the majority opinion itself acknowledges that the decision as to how the acquisition would be conducted—through direct procurement (compra directa), an open procedure, or a competitive procedure—WAS NOT AND HAD NOT BEEN ICE’s responsibility to make, much less that of its Board of Directors and still less that of [Nombre026], but rather that of the Office of the Comptroller General of the Republic [...].

The foregoing gives rise to an evident contradiction in the majority opinion: either [Nombre026] undertook and fulfilled Alcatel’s demands as part of the corrupt proposal made to him, or it was the Office of the Comptroller General, as applicable, and the technical bodies that determined not only the method of procurement but also the migration to GSM technology itself; both propositions, however, cannot be true at the same time. The two propositions are plainly contradictory. Either [Nombre026] is telling the truth and he had control, or some degree of control, over those matters, which is why he was required to ensure their fulfillment in order to receive the gratuity (dádiva), or he is lying and, as the Court accepts in its majority opinion, those matters were in the hands of other entities over which [Nombre026] had no control or influence; both propositions, however, cannot be true at the same time.

As I have said, the Court contradictorily finds both that [Nombre026]’s statement is credible and that it lacks credibility regarding central aspects of his alleged involvement in the challenged procurement, and even more so regarding his ability to fulfill the demands allegedly made by Alcatel. This renders the reasoning contradictory, with the two arguments canceling each other out and leaving the judgment without adequate grounds. There is a clear contradiction in the analysis of the evidence because, as we stated, under the principle of non-contradiction, two mutually opposed judgments cannot both be true at the same time; two conflicting judgments cancel each other out.

The judgment is likewise contradictory insofar as it finds it proven that, by December 4, 2000, [Nombre026] had received Alcatel’s corrupt proposal, had consulted my client, and had been induced to commit the offense. We will address the issue of consummation below, but it is evident that the Court bases my client’s liability on the fact that, at the meeting allegedly held at his home on December 4, he induced [Nombre026] to commit the offense. Nevertheless, it finds it established beyond any doubt that on December 5, the day after [Nombre026] was induced to commit the offense, he voted in favor of matters contrary to the alleged agreement he had already accepted: first, he voted for direct procurement, although Alcatel required an open procurement process; furthermore, he did not vote in favor of Alcatel, but in favor of all its competitors. Since those assertions are wholly contradictory and cannot both be true at the same time, the reasoning is incoherent and therefore null and subject to appeal. We expressly request that the Court of Appeals uphold this ground of appeal and vacate the challenged judgment because it is based on contradictory propositions from which it derives, or purports to derive, my client’s criminal liability” (cf. appeal, folios 172808 to 172811).

• H)Violation of the rules of sound judicial evaluation (sana crítica) in determining and stating the grounds for the facts. In the present case, the judgment flagrantly violates the logical rule of derivation by concluding, on the basis of the evidence, that my [Nombre012] engaged in unlawful conduct, even though all the evidence—including [Nombre026] himself—indicates that my client did not engage in any conduct that favored Alcatel or its procurement by ICE in any way. According to [Nombre026]’s account, after receiving the proposal from Alcatel’s officials, he determined at home that the matter was very complex and that he needed, as he put it, the President’s support in order to proceed, but that he never needed to ask him for anything because the procedure “was progressing very smoothly.” The foregoing is essential to corroborating two points: technically, among all the evidence admitted at trial, there is not a single item from which the existence of unlawful conduct by my client could legitimately be inferred. On the contrary, as we noted above, when [Nombre026] describes his participation, he merely states that he allegedly consulted the President in case the assistance of a higher authority was required, which he admits was never necessary.

The majority opinion itself finds this proven [referring to proven fact No. 91]; even assuming that [Nombre026] told the Alcatel officials that he required a higher authority, none of his accounts states that he told them that this was the President of the Republic. In fact, the decision to allegedly communicate the matter to Dr. [Nombre012] arose only after he had reflected on the matter at home, and merely in case he needed assistance which, we reiterate, was not necessary, according to [Nombre026] (cf. appeal, folios 172811 to 172813).

• I)Violation of the rules governing formal notice of charges (intimación) to the accused. In its closing arguments at trial, the defense raised the issue that [Nombre012] had not been duly given formal notice during the investigation stage of the acts for which he was ultimately charged and convicted. “The basis for that challenge,” attorney Gairaud Salazar states, “lies in the fact that, because the Constitutional Chamber has declared that formal notice of charges is part of due process (decisions 9879-2001 and 1739-92, Constitutional Chamber), it requires not only that the accused be informed of the provisional legal classification assigned to the acts under investigation or be made aware of the evidence then held by the Public Prosecution Service, but fundamentally—as Llobet notes, in connection with the accused’s right to remain silent—that the accused be informed of the specific acts for which he is under investigation. Obviously, and logically, the acts of which the accused is formally notified at the appropriate time may change, and if that change affects or alters his potential liability, the Public Prosecution Service is required to question the accused again and formally notify him of the new acts attributed to him [...].

This is precisely what was raised before the Court. My client was questioned on October 15 on the basis of the acts that [Nombre026] had admitted, consisting—as was established before the Court through documentary evidence in the closing arguments—of the assertion that, after the contract had been awarded to Alcatel, he, [Nombre026], had received a gratuity without any prior promise. In that account, [Nombre026] does not state that he required my client’s assistance or that meetings with Alcatel officials had taken place at ‘[...]’ or at my client’s home. He was therefore formally notified that, according to [Nombre026], my client was given a portion of the gratuities received.

Nevertheless, when [Nombre026] changed his account in May 2005 in connection with the offer of an abbreviated procedure (procedimiento abreviado), which was later used to benefit him through a discretionary non-prosecution arrangement (criterio de oportunidad), [Nombre026] radically and substantially altered the facts. He stated that his original account—which, as he said at trial, was prompted by his legal knowledge or veneer and served as a mechanism for self-justification and an attempt to minimize his liability—should be understood not as meaning that he had received the gratuity without a prior promise, but rather that a meeting had taken place at ‘[...]’ in Alajuela, at which [Nombre035] and [Nombre015] proposed paying him a gratuity in exchange for satisfying three conditions involving assistance to Alcatel. Finding the proposal attractive and accepting it in principle, he then reflected on it at home and decided to consult the President of the Republic, Dr. [Nombre012].

Plainly, there is an enormous difference between the two accounts. In one, there is a gratuity without a prior promise and no action by my client, other than his own alleged receipt of gratuities connected to the money that [Nombre026] received from Alcatel. In the second account, my client allegedly participated ‘beforehand,’ including attending a meeting at which he was informed of the corrupt proposal made to [Nombre026] and supported it. The issue, therefore, is that because my client was formally notified only of the first set of facts and no new questioning was ever ordered to notify him formally of the new facts recounted by [Nombre026], there was a flagrant violation of his constitutional and statutory rights. Although this defect cannot be cured because it involves the violation of fundamental rights (Art 178 of the Code of Criminal Procedure (CPP)), the Court surprisingly states in its majority opinion that no defect exists and, reversing the parties’ procedural responsibilities, asserts, first, that my client or his defense was required to request a new formal notice. This is absurd and violates the constitutional privilege against self-incrimination. Second, oversight of the proceedings falls within the authority of the Public Prosecution Service.

It is in the Public Prosecution Service’s interest to ensure that the formal notice of charges is given, since the law conferred that authority upon it through the reform that gave rise to the current Procedural Code. Finally, it is not the defense’s task, nor is it within the defense’s authority, to decide whether the accused is to be formally notified of new facts; what does fall within the defense’s authority is deciding whether the accused, once duly notified, will make a statement. Thus, the issue turns on the fact that Dr.” [Nombre012] was formally notified of the charges (intimado) only regarding the receipt of two checks drawn on the account of [Nombre026]’s wife in favor of my client’s wife, the alleged delivery of 360,000 dollars—which, we must point out, was ruled out—as well as the receipt of certain certificates with the third payment identified by [Nombre026] on 30 de setiembre del 2004; the remaining alleged receipts of money are facts of which my client was never formally notified and concerning which he was therefore never questioned as a defendant (indagado), nor was he questioned about the alleged meeting at his home at which he supposedly induced [Nombre026] to commit a crime; that is, HE WAS NEVER FORMALLY NOTIFIED OF A CHARGE OF INCITEMENT (INSTIGACIÓN), thereby preventing him, in accordance with due process (debido proceso), from being tried, much less convicted, for such acts.” The trial court rejected the defense’s objection, stating that the right of defense had not been impaired and that [Nombre012] could have requested an expansion of his initial statement.

However, the correct course—the appellant argues—is for the accused to be formally notified of the acts attributed to him, at least of the fundamental circumstances necessary to bring the conduct within a criminal offense and permit him to exercise his right of defense: “...something that did not occur in this case, in which the formal notice, based on [Nombre026]’s first statement, is not even remotely similar to that contained in his second statement, not only because of the factual circumstances themselves but also because of the change in the alleged forms of participation and their legal classification. For this reason, my client should have been questioned again following the change in [Nombre026]’s statement in mayo del 2005, which did not occur [...] Thus, to maintain, as the majority does, that our challenge is absurd because accepting it would paralyze the investigative stage is a way of evading the specific point raised by the defense.

It is not a matter of evidence, I reiterate, but of facts, and whenever the facts change, the accused must be questioned regarding those new facts, as many times as they change, if they are capable of being classified as a different criminal offense. In this case, their essential nature derives from the assertion that my client incited [Nombre026], and this was not a fact known from the case file when my client gave his statement, but only eight months later, when [Nombre026] provided his second version of events.” [Nombre012] was never formally notified of the acts with which he was charged; he was never formally notified of acts constituting incitement. A new formal notification should have occurred when the new facts were introduced, which did not happen either during the intermediate stage or at trial, contrary to the false assertion in the majority opinion. What occurred at the beginning of the trial was that the Prosecutor’s Office reclassified the acts under a more serious offense, Aggravated Corruption through Bribery in the Performance of Official Duties (Corrupción agravada por Cohecho propio), but there was no change whatsoever to the acts charged.

This is an incurable flaw, an absolute defect under Article 178(a) of the Code of Criminal Procedure, because it concerns a constitutional right, as it is a fundamental right enshrined in the Universal Declaration of Human Rights and the American Convention on Human Rights (“Pacto de San José”), as the Sala Constitucional has held. A dismissal (sobreseimiento) should therefore have been entered, since the matter cannot be remanded to procedural stages that have already concluded in order to cure the defect (cf. appeal, folios, 172813 to 172821).

• J)Violation of the rules of sound judicial reasoning (sana crítica) and of judicial oversight of the criterion of opportunity (criterio de oportunidad). In response to interlocutory challenges raised by the defense concerning the application of the criterion of opportunity, the same judges who issued the majority opinion in the judgment also participated in issuing the ruling at 13:30 on 2 de setiembre del año 2010, stating that their court lacked jurisdiction to hear the challenges raised against the criterion of opportunity granted in favor of [Nombre026] and that such authority belonged to the Sala Tercera de la Corte Suprema de Justicia. This constitutes an unlawful, even unconstitutional, renunciation of the criminal court’s jurisdiction, as that court is responsible for hearing all disputed issues and exercising judicial oversight of due process, as required by the procedural law in force.

As Judge Camacho Morales states in his dissenting opinion, the procedure followed in applying that mechanism in favor of [Nombre026] violated due process. It is in the judgment that the judges determine that, by comparing the alleged degrees of culpability attributable to [Nombre026], [Nombre018], [Nombre015], and [Nombre012], it can supposedly be established that the conduct of [Nombre026], despite his being the principal perpetrator, is less culpable: “However,” the complainant adds, “the judge who heard the request for application of the criterion of opportunity was denied that very possibility, thereby violating the judicial oversight of the criterion of opportunity established in procedural law. The judge before whom the Prosecutor’s Office filed its request was not permitted to determine whether it was true that [Nombre026]’s conduct was more or less culpable than that of the other three accused persons mentioned.

It is precisely the Court’s reasoning regarding the possibility of comparing the lesser degree of culpability or lesser seriousness of the act among the various participants involved in the mechanism that was violated. By deliberately dividing jurisdiction through the Prosecutor’s Office, so that one judge heard the request to apply the Criterion of Opportunity and another heard the Indictment, any oversight whatsoever of the greater or lesser degree of culpability required by the legal system was prevented. This rendered the procedure for granting the mechanism wholly defective and contrary to due process and the legal system—not because of nullity for nullity’s sake, but because whether or not the mechanism is applied affects my client’s exercise of his right of defense, its actual and not merely formal exercise, particularly when the accused beneficiary manages to convince a court that determines that no evidence corroborating his account is necessary and that the issue is simply whether or not he is credible.

Given that, as we have seen, the statement of the cooperating accused, within the mechanism of the ‘CRITERION OF OPPORTUNITY’ (Art 22 of the Procedural Code), is not EVIDENCE, but rather its content must be accompanied by lawful means of evidence (medios de prueba) that corroborate or validate that accused person’s account, and given that the value of such a statement lies NOT in its being a MEANS OF EVIDENCE, but in its being a means of OBTAINING EVIDENCE, in accordance with section 22 of the CPP, which provides: ‘...and the accused effectively cooperates with the investigation, provides essential information to prevent the crime from continuing ... helps clarify the act under investigation or other related acts, or provides useful information to prove the participation of other accused persons ...’ It is evident that the judge approving that criterion must have before him the full range of possible degrees of culpability—that is, the indictment and the request for approval of the criterion of opportunity—and must rule, as required by law, at the conclusion of the Preliminary Hearing, sections 37 and 319 of the Procedural Code having been violated by the majority opinion.” Second, the appellant objects that it was improper to evade a ruling on the criterion of opportunity and to state, as the majority opinion does, that [Nombre026] gave his statement out of altruistic motives, since his improper interest is evident.

Nor does he agree with the majority’s assertion that the Sala Tercera has erroneously interpreted the issue of greater or lesser culpability to mean that the participation of the “repentant offender” must be less serious than that of the person whom the authorities seek to prosecute, since culpability cannot be determined until the judgment stage, once the existence of the unlawful act has been established, which would in any event render that procedural mechanism inapplicable. In this case, [Nombre026]’s conduct is more serious than that of any other accused person, since the Prosecutor’s Office itself states that he was the direct perpetrator with full control over the act; his conduct therefore could not be less “culpable” than that of a participant. It was not possible to grant immunity to a perpetrator in contrast to an alleged incitement that the court acknowledges did not consist of a direct act of inducement, but was merely symbolic.

He requests that the challenged judgment be declared invalid because it is based on a criterion of opportunity that was unlawfully granted and that a judgment of dismissal be entered (cf. appeal, folios 172821 to 172828).

• K)Violation of the rules governing the imposition of punishment and failure to state reasons (falta de fundamentación). He alleges that although the majority imposed the maximum sentence on his client, it did so by stating that this was warranted by his “greater culpability” in relation to the protected legal interest (bien jurídico tutelado) and for an obviously improper reason: because he was the Presidente de la República and because [Nombre026] was less culpable, having spoken and returned a sum of money, whereas his client returned no money and attempted to evade responsibility by offering explanations that the majority deemed untenable, and because he did not explain the origin of some of the funds received from [Nombre026]. “These assertions,” attorney Gairaud Salazar argues, “even though the majority hastened to claim that it was not applying the Offender-Based Criminal Law theory (Derecho Penal de Autor), clearly reveal that the reasons for reimposing the maximum sentence are untenable.

First, the greater or lesser degree of culpability does not depend on the rank of the office held by the official, but on the greater or lesser impact upon the actual injury to the protected legal interest, not upon that interest in the abstract; that is, for the specific act, the responsible person’s actions are of such-and-such magnitude and therefore determine the sentence to be imposed. Second, the exercise of the Right of Defense—which is precisely the corollary of the assertion that [Nombre026] confessed while my client did not—is yet another flagrant violation of due process. The sentence, and particularly the maximum sentence, cannot be imposed because the accused exercised a constitutional and statutory right; such an assertion is arbitrary and unlawful under both statutory and constitutional law. Finally, it is based on reversing the burden of proof (carga de la prueba). It is not for the accused to prove anything, but for the prosecution; therefore, his alleged failure to provide such an explanation of the funds does not make the person’s conduct more or less culpable.

Those three reasons render illegitimate the criterion used by the majority to establish my client’s allegedly greater culpability compared with [Nombre026], but they do not provide reasons explaining why the maximum sentence was imposed on my client. In any event, because those reasons are unlawful, they must be excluded as grounds for the sentence imposed; once they are excluded, and because the majority did not specify the reasons—not for my client’s alleged greater or lesser culpability, but for the quantum of the sentence—it is evident that the sentence was imposed arbitrarily and unlawfully, in violation of the duty to state the reasons for the sentence [...] The maximum sentence is imposed on him for exercising his right of defense; that is the conclusion we reach after reading the majority opinion’s reasons for the sentence.” Nor is it possible to consider that sentence reasonable if we take into account that, according to the majority opinion, my client acted merely as an instigator (instigador), not as a principal (autor); that the instigation (instigación) was subliminal—a gesture or a division of percentages—not a direct and express action upon [Nombre026]’s psyche, such that it is disproportionate for the direct principal with full control over the act to go unpunished while the subliminal instigator is given the maximum sentence prescribed for the offense.” He requests that the ground concerning the lack of reasoning and the failure to determine an appropriate and proportionate sentence be upheld and that, should the other grounds of appeal on procedural and substantive grounds not be upheld and the appealed judgment be affirmed, the sentence imposed be properly adjusted to an equivalent term allowing conditional suspension of the sentence (ejecución condicional de la pena) (cf. appeal, folios 172828 to 172831).

• L)Violation of the rules governing application of the substantive law on instigation (Articles 47, 342, and 340 of the Criminal Code). The facts found proven in paragraphs 90 and 91 of the judgment do not fall within the definitions of the criminal offenses of “Accomplices” (Complices) (Article 47 of the Criminal Code), “Improper Bribery” (Cohecho impropio) (Article 340 of the Criminal Code), and “Aggravated Corruption” (Corrupción agravada) (Article 342 of the Criminal Code). [Nombre026] did not need to be induced, but only potentially to receive assistance. According to the majority, the instigation was not even direct but was instead inferred from the statement “let’s go 60/40.” Attorney Gairaud Salazar adds: “Thus, from the very moment the proposal was made to him, [Nombre026] accepted it. The majority opinion states that [Nombre026] indicated that he did so ‘in principle,’ an adverb that, according to the ‘Pequeño Larousse’ dictionary, means provisional, without full acceptance, which is plainly incorrect.

When [Nombre026] says that he accepts in principle, he is saying that he accepts the proposal, and any possible condition is resolved in proven fact 91: he needed to know whether my client could potentially help him if the matter became complicated, which, as we have seen, never occurred. In other words, [Nombre026] was already resolved to commit the offense at the very moment the benefit (dádiva) was offered to him, which, under the substantive provisions violated, is the moment of consummation (consumación); my client could not have induced the commission of an offense that HAD ALREADY BEEN CONSUMMATED, according to the majority opinion’s own reasoning. Acceptance in principle reveals that [Nombre026] tells them, yes, I accept, but I have reservations and must think about it, which is precisely what the majority opinion says occurred when he arrived home and, seeing the scale of the case, decided to inquire about my client’s possible cooperation.

This is plainly NOT INSTIGATION; therefore, Article 47 and Article 340, as regards CONSUMMATION, were flagrantly violated by the majority opinion. Consequently, if [Nombre026] accepted the proposal made at that same [...], and if he thereafter required only potential assistance and did not need to be induced, my client plainly did not instigate him, since, as Castillo González, cited by the court, states: ‘Castillo González states that “to induce” means that the instigator immediately influences the principal’s will or, stated differently, “causes” or “gives rise” in the principal to the decision to commit the offense (Op. cit., p. 499). Regarding the subjective element (tipo subjetivo), the instigator must induce another person and do so intentionally; it is an intentional act, and neither negligence nor conditional intent (dolo eventual) is sufficient (Op. cit., p. 510). Reference is improperly made to a dual intent: i) the instigator must act intentionally with respect to his own activity as the person inducing the offense; ii) the instigator must also possess intent directed toward the principal’s intentional commission of the consummated criminal act.

(op. cit., p. 511).’ Consequently, if [Nombre026] accepted the proposal made at that same [...], and if he thereafter required only potential assistance and did not need to be induced, my client plainly did not instigate him; the appealed decision therefore incorrectly applies the rules governing instigation and the consummation of Improper Bribery.” He requests that this claim be upheld and that, upon finding from the proven facts that [Nombre026] consummated the offense before allegedly meeting with [Nombre012], that he had already resolved to commit it when the alleged meeting involving his client took place and therefore could not have been instigated, and that it was unlawful to convict him as an Instigator of the Offense of Aggravated Corruption through Improper Bribery, a judgment of acquittal (sentencia absolutoria) be entered in his favor, as required by law, on the basis of the established facts (cf. appeal, folios 172831 to 172836).

He concludes his brief by requesting that this Court of Appeals for Criminal Judgments reverse the appealed decision, order new proceedings, or enter a judgment of acquittal if this Court finds it evident that there is insufficient evidence to support prosecution of the charges against his client at trial. He requests that an oral hearing be scheduled for argument.

IV.THE APPEAL OF ATTORNEY RAFAEL ENRIQUE GAIRAUD SALAZAR IS DECIDED.- In view of what was decided regarding the appeal (recurso de apelación) of Dr. [Nombre012] in the preceding Recital (Considerando), it is unnecessary to rule on the appeal of his defense counsel, Lic. Rafael Enrique Gairaud Salazar, since the relief sought has already been granted.

V. APPEAL BY LIC

CRISTIAN ARGUEDAS ARGUEDAS.- Lic. Arguedas, also counsel for Mr. [Nombre012], expressed his disagreement with the judgment in several written submissions. The first was an appeal on points of law (recurso de casación), which he filed on 1 de agosto de 2011 (see Volume XXXVII, folios 17387 to 17407). The second was an “appeal against the judgment” (recurso de apelación de sentencia) (filed on 10 de febrero de 2012, see Volume XXXIX, folios 172687 to 172710), through which Lic. Arguedas adapted his earlier grounds for appeal on points of law into an appeal against a criminal judgment, pursuant to Transitory Provision III of Ley N° 8837 de 3 de mayo de 2010 (“Creation of the appeal against judgments, other reforms to the system of challenges, and implementation of new rules on oral proceedings in criminal procedure”). He alleges failure to observe Articles 41, 153 and 154 of the Political Constitution; 41, 112, 142, 266, 363, 365 and 367 of the Code of Criminal Procedure; and 99, 290 and 291 of the Code of Civil Procedure, on the following grounds: A) Failure to state reasons for the judgment, because the court refrained from deciding the civil action (acción civil) brought by the Instituto Costarricense de Electricidad (ICE), purportedly because its civil action for damages (acción civil resarcitoria) lacked an adequate factual basis (it contained no clear description of the acts attributable to [Nombre012]) supporting the relief sought; it therefore referred the interested parties to the civil courts to adjudicate ICE’s civil claims.

No legal provision authorizes the trial court to decide in this manner, denying prompt and effective access to justice by failing to rule on a matter submitted to its jurisdiction and competence. Because the trial court may not remedy the parties’ deficiencies in conducting litigation, it should have declared ICE’s civil complaint inadmissible, ordered it closed, or dismissed it outright, as required by Article 291 of the Code of Civil Procedure, with the resulting award of costs. The trial court was required to decide the matter submitted to its jurisdiction and competence, but it failed to do so; nor did it state its legal reasoning or the applicable provisions underlying its decision not to rule, thereby denying [Nombre012] access to justice. The trial court ruled citra petita because it failed to decide a matter submitted to it. This defect was raised unsuccessfully at every appropriate procedural stage and opportunity.

• B)Failure to state reasons because the trial court did not decide the civil action brought by ICE. The trial court states that a particular feature of these proceedings is that not all the accused participated in every alleged criminal act; rather, different groups of accused persons were involved in particular acts. This circumstance made it necessary to identify and specify each group of accused persons and third-party civil defendants (terceros demandados civiles) who might be jointly and severally liable among themselves, also in relation to particular acts and the particular damage those acts might have caused. It therefore concluded that there was no single item of damage for which all the accused and, potentially, third parties were jointly and severally liable, which was the premise on which the Instituto Costarricense de Electricidad and the Procuraduría General de la República quantified their civil claims.

What might exist instead are items of damage caused by the criminal conduct of particular groups of accused persons, for which the accused in each group and potentially third parties would be jointly and severally liable, independently of any damage caused by other groups of accused persons. The court states that the claimed damage and relief had to be specified for each group of jointly and severally liable parties, but this was not done; instead, an overall estimate and a single request for an award were submitted as though all the accused and legal entities were jointly and severally liable for one total item of damage, which was not the case, because what might exist in this particular case were several separately identifiable items of damage corresponding to each group of accused persons and third parties who might be required to repair them. The total damage referred to in the civil actions could be no more than the sum of the individual items of damage caused by each group of potentially liable parties, a figure that, for purposes of the compensation sought, was devoid of any legal relevance.

The court adds that, by quantifying their claims in the manner they did, the civil plaintiffs (actores civiles)—the Procuraduría General de la República and the Instituto Costarricense de Electricidad—made it impossible for the Court to rule on their merits. This was compounded by the fact that no attempt was made to establish the individual damage potentially caused by each group of jointly and severally liable debtors. Thus, even if the Court decided to do the work of the civil plaintiffs for them, it lacked the necessary information; and if it were to do so, the civil defendants would ultimately learn only when judgment was entered what specific, defined, and particular claims had been brought against them. This would violate due process (debido proceso), which requires claims to be specified before the conclusion of the preparatory proceedings so that the civil defendants may properly exercise their right of defense, a right that would be violated if the Court ruled on the merits of the claims as pleaded.

In addition, no consideration was given to the fact that the Instituto Costarricense de Electricidad itself, which sought compensation for damage and losses in its favor, was one of the legal entities that, by law, were jointly and severally liable with the civil defendants for repairing them. The Court considers that it could not remedy the party’s negligence without seriously violating important principles of civil procedure, such as judicial objectivity and impartiality, the right of defense, and due process generally, by permitting actions contrary to the statutory provisions governing civil actions for damages that affect the proper conduct of the proceedings and the parties’ right of defense, since they would learn what specific claim had been made against them only upon entry of judgment. According to the court, similar objections could be raised regarding the civil actions brought by the Procuraduría General de la República, the State body charged by the Code of Criminal Procedure with pursuing civil actions for damages on behalf not of the State, but of collective and diffuse interests (Intereses Colectivos y Difusos) (Article 38 of the Code of Criminal Procedure).

When pleading the civil action for damages and the relief sought, the Procuraduría General de la República could not disregard the fact that the State and the Instituto Costarricense de Electricidad were also designated by law as jointly and severally liable for the damage and losses to collective or diffuse interests for which compensation was sought. This was because public officials from the Executive Branch, the Legislative Branch, and the Instituto Costarricense de Electricidad participated in the possible causation of the damage and losses. By failing to bring a civil action for damages against those entities, the Procuraduría General de la República breached its obligations under sections 20 and 21 of its Organic Law. Accordingly, the court concludes, when claiming social damage (daño social) in representation of collective and diffuse interests, the Procuraduría General de la República could not demand full joint and several liability from all the civil defendants without distinguishing, as was required in this case, among the various groups of jointly and severally liable debtors.

For each group, it was required to identify the specific alleged criminal act and the damage resulting from it, all factually supported by the description of the events. Therefore, the appellant concludes, the formal defects identified by the trial court concerning the rules of statutory joint and several liability caused a lack of defense, confusion, and improper processing of the civil actions. The court then decided not to rule on the matter, evading its constitutional obligation to administer justice, denying justice to defendant [Nombre012], and referring the matter to the civil courts, when the proper course was to hear the matter and dismiss the claims, with the corresponding award of costs against the civil plaintiffs. Lic. Arguedas states that, during service of the civil action, he raised the defense of failure to join necessary parties as co-defendants (excepción de litis consorcio necesario pasivo), in view of the rules of joint and several liability governing this case, but it was never heard.

During the intermediate stage, at the preliminary hearing, and at trial, he maintained that defense because ICE’s and the PGR’s civil complaints were considered improperly pleaded and because several persons met the procedural requirements to be named as defendants but had not been, such as [Nombre026], whom ICE never sued despite his being the principal perpetrator of the acts attributed to [Nombre012]. The court should have sustained the defense of failure to join necessary parties as co-defendants and awarded costs, but should never have declined to hear the matter. C) Failure to state reasons in the judgment concerning costs, since the court does not state the grounds for its conviction, the applicable legal provisions, or its reasons for, first, ruling without a specific award of costs. Second, although the court acknowledges the incurable defects in ICE’s and the PGR’s civil complaints and that those defects were the responsibility of the civil plaintiffs and the Courts of Justice, this representation neither accepts nor agrees with the court’s attempt also to hold the defense responsible for its opponents’ mishandling of the civil actions, since that was not the defense’s responsibility, nor was such a conclusion logical or rational.

In any event, Dr. [Nombre012]’s defense always brought those circumstances to the attention of the various criminal judges and, to that end, raised every type of defense at every appropriate procedural opportunity; that argument therefore lacks any basis whatsoever. If the court acknowledges that the complaints contained insurmountable defects resulting from their improper handling by the civil plaintiffs and the complicity of the administration of justice, that can never be attributed to the defense, especially when it was the defense that reported those circumstances at every procedural stage. Third, the court’s ruling is entirely unsupported because it does not state what plausible grounds there were for litigating. Not a single reason or justification is given for finding that there were plausible grounds to litigate and therefore exempting the civil plaintiffs from costs, and it did not rule on the relief sought by the defense, at least with respect to the defenses raised throughout the proceedings.

Nor did it analyze the recklessness and bad faith with which ICE and the PGR litigated by filing absurd complaints lacking any evidentiary basis. He requests that this appeal be granted, that the civil complaints be declared inadmissible and dismissed on the merits, and that the State and the Instituto Costarricense de Electricidad be ordered to pay legal and procedural costs in accordance with the decree on attorneys’ fees currently in force.

• D)Failure to observe and erroneous interpretation of the Code of Criminal Procedure and the Code of Civil Procedure, and violation of the principle of congruence and correlation between the civil claim and the judgment. With great legal acumen, the court sets forth the grounds that may give rise to various grounds for appeal and cassation due to violation of the principles of congruence and correlation between the civil claim and the judgment; however, the court errs and rules short of the relief sought (citra petita) by failing to decide the matter. According to the case law of the Second Chamber, citra petita occurs when a ruling is omitted on issues disputed by the parties (cf. N° 618-2010 at 9:15 a.m. on May 20, 2010), as occurred in this matter. Neither ICE’s legal representatives nor those of the PGR requested or asked the court not to decide this matter submitted for its consideration. Nor did the technical civil counsel for Dr. [Nombre012]; rather, all the parties were eager for the court to fulfill its constitutional mandate. It follows from Articles 99 of the Code of Civil Procedure and 365 and 367 of the Code of Criminal Procedure that the option of not deciding a matter submitted to the trial court has no legal basis in civil or criminal procedural law. The principle of congruence is violated when the trial court refrains from considering the merits of the matter and fails to rule. For the foregoing reason, this appeal must be granted in its entirety. E) Violation of the principle of congruence described above because the trial court did not consider the merits of the matter and consequently did not grant the relief sought by [Nombre012]’s defense. In addition to the lack of reasoning and the contradictory judgment, Attorney Arguedas states that he can find no valid legal argument for the court’s failure to rule on the merits. He asked the court to dismiss the civil actions brought by ICE and the PGR because the harm claimed by the plaintiffs does not exist. It never occurred, and therefore they are not entitled to any compensation. First, regarding ICE’s civil action, Attorney Arguedas raised the defenses (excepciones) of absence of a legal right, lack of standing to sue (falta de legitimación activa), absence of cause, among others, which were never resolved or addressed by the Court, since ICE suffered no economic loss whatsoever but instead profited and benefited from the procurement of the four hundred thousand cellular lines. In this regard, the appellate court may review item of evidence number 646 and the testimony of the former Executive Presidents of ICE, [Nombre052] and [Nombre053], and ICE Marketing Manager [Nombre054], who testified at trial, confirmed the profits obtained by ICE as a result of the contract with Alcatel, and further denied that ICE had suffered any economic loss. Likewise, ICE’s claim is based on a reduction made by ARESEP to fixed-line rates and to the deposit or guarantee, as well as the denial of a rate increase; therefore, the relief sought by ICE has no causal nexus (nexo causal) whatsoever to the facts adjudicated by the trial court. One need only examine item of evidence 782 to realize that the Aresep decision reducing cellular rates dates from 2003, long before the facts adjudicated by the Court became public knowledge (October 2004), which makes the absence of a causal nexus to the adjudicated facts evident. In other words, the facts in the present case file did not give rise to the Aresep decision. In that decision (item of evidence 782), Aresep, pursuant to its Organic Law, reduced rates for the entire cellular and fixed-line telephone network, not merely for the four hundred thousand lines procured from Alcatel. If that is so, the appellant asks, what do the reduction made one year before the events, involving telephony procured from Lucent and Ericcsson, and the 2004 facts attributable to Alcatel have to do with one another, or what is their causal nexus? The absence of a causal nexus between the relief sought by ICE and the adjudicated facts is evident. Accordingly, ICE’s claim should have been and must be dismissed on the merits. In connection with the same Aresep decision (item of evidence 782), contrary to what ICE had requested at the time, the public-services regulatory body did not approve a requested increase of four hundred colones because, as witnesses [Nombre055], [Nombre056], and [Nombre052] properly testified, GSM generated economies of scale, lowered the cost of administering the cellular network, and those savings had to be passed on to end consumers through a reduction in rates. Consequently, the relief sought by ICE in its civil action lacks any causal nexus to the facts examined by the court in the present case file. Finally, in that decision, Aresep reduced the guarantee or deposit per cellular line from sixty thousand colones to twelve thousand five hundred colones, entirely on the basis of the new and improved cost structure resulting from implementation of the GSM network. However, as the expert retained by ICE testified, the security deposit was not ICE’s property but belonged to users. Nevertheless, in an unprecedented move, ICE sought millions in compensation because it was unable to “play the float” or earn interest on the users’ money. This plainly constitutes unjust enrichment (enriquecimiento sin causa) and is therefore unlawful; in any event, it has no causal nexus whatsoever to the facts adjudicated by the Court. In summary, the multimillion-dollar and unlawful compensation sought by ICE has no causal nexus to the facts adjudicated by the trial court. For that reason, the adjudicating body should have ruled on the merits, dismissed ICE’s civil action, and ordered ICE to pay costs for acting in bad faith by filing a frivolous claim (demanda temeraria) wholly lacking any causal nexus to the facts adjudicated by the trial court. Despite this, in direct violation of the Constitution, the Court did not decide the defense’s request but instead committed citra petita, because it decided absolutely nothing. On the other hand, the civil claim for social harm (daño social) filed by the PGR meets the same fate as ICE’s, because it is frivolous and is based on nonexistent claims, which are discussed below. The PGR alleges supposed harm to democracy arising from electoral abstention, an absurd proposition because electoral abstention has been occurring in the country since the 1986 elections and has grown steadily since then without stopping. At the request of the Tribunal Supremo de Elecciones, shortly after the 2002 elections (two years before the ICE-Alcatel case was even known), the Universidad de Costa Rica conducted the study “Abstencionistas en Costa Rica ¿Quiénes son y por que no votan?”, by Ciska Raventos Vorst et al. (item of evidence 771), which states and concludes as follows: a) The weakening of party loyalties is not unique to Costa Rica; b) In a two-party system, disaffiliation from political parties frequently leads to abstention; c) Beginning in 1990 and 1994, but particularly in 1998, a new form of abstention became evident, motivated instead by discontent with politics and politicians; d) The interpretation of the data leads us to conclude that the Costa Rican political system, marked by considerable stability in party choices and voter preferences, entered a period of change during the two most recent elections. (It should be borne in mind that this refers to 1998 and 2002, before the events under investigation). The principal feature of this change is discontent with politics and politicians, expressed through voters’ withdrawal from the two party options of the second half of the last century, and not through the present case. With respect to the 2021 elections, the trend was toward greater abstention. e) In 2002, this group of highly educated and socioeconomically well-positioned voters was attracted to the PAC’s platform and therefore exercised its right to vote once again in that election. Conversely, on that occasion, voters from lower socioeconomic levels once again increased the abstention percentages, literally offsetting the possible effect of those who had abstained in 1998 but returned to the polls in 2002. The foregoing supports the assertion that, had a third option not existed, abstention levels might have increased considerably; f) In summary, the increase in electoral abstention during the two most recent elections appears to be linked primarily to political factors associated with the end of the political cycle of the second half of the twentieth century, in which the principal institutions weakened have been the political parties. Despite the actual data proven and issued by the Universidad de Costa Rica, the PGR bases its calculation of the abstention percentage on an article in the newspaper Al Día dated October 6, 2004, stating that abstention in the 2006 elections was 64.20/0r which, as is publicly known, never actually occurred, because abstention in 2006 was 34.80/”; to verify this, one need only examine item of evidence 772, the certification of election results issued by the TSE. In a wholly absurd manner, the PGR proposes a methodology for calculating entirely nonexistent harm to democracy based on the following. The PGR proposed that, because abstention was 3l.2% in 2002 and the figure reported by the newspaper Al Día after interviewing 500 people was estimated at 64.2% in 2004, the difference between those figures—which equals 33%, or the 841.702 voters who would eventually abstain according to the electoral roll—must be multiplied by the amount of $12.71, which it claims is the cost per vote, producing a total of USD $10.697.617; therefore, because the ICE-ALCATEL case bears 33.9% of the responsibility according to a survey of 104 people, the amount attributed to his client is USD $3.626.492. The foregoing calculation is preposterous and absurd for several reasons:
• 1)the actual abstention percentage has no relationship whatsoever to the facts adjudicated by this Court (items of evidence 771 and 772), since it was lower than the figure asserted by the PGR and was attributable to factors unrelated to the adjudicated facts, as stated above.
• 2)The election budget is constitutionally established and is spent regardless of how many voters go to the polls, whether 1, 10, 300, or the entire electorate votes. That expenditure is simply part of our decision as a country and of our democratic identity, making the calculation of $12.71 per voter plainly ill-advised.
• 3)The 33.9% weight assigned to the responsibility of the ICE-Alcatel case was determined by 104 people from Heredia in a survey; in other words, it does not come from a serious study that can be extrapolated to the entire national population, as the PGR’s own expert and expert [Nombre057] stated when testifying at trial.
• 4)An actual figure is compared with the assessment from a survey conducted midway through the electoral period that cannot be extrapolated to the population, demonstrating the lack of seriousness and the frivolous nature of the PGR’s civil action.
• 5)Conduct on election day is compared with a belief expressed outside the electoral period and, above all, with a figure published in a newspaper by a journalist with no knowledge whatsoever of the subject and not even based on actual data.
• 6)National voter abstention as a result of the image or judgment formed of a political leader is wholly illogical and unsupported by any serious study. To reach that conclusion, even in the most extreme case, one would have to assume that electoral abstention never existed before 2002 and that 100% of voters participated in every election. The figure of 100% applies only to the entirety of the electoral roll. [Nombre012] bears no responsibility for those who abstained from voting or for any harm to democracy in this regard. This renders the alleged harm to democracy simply untenable and wholly lacking in any causal connection (nexo causal) to the facts adjudicated; accordingly, the Court should have dismissed the claim and ordered the PGR to pay legal and procedural costs. Likewise, the PGR seeks compensation for untenable and nonexistent harm to the national economy. Dr. [Nombre012]’s defense offered evidence and actual data establishing that the Costa Rican economy suffered no harm whatsoever from the facts adjudicated, but instead grew stronger year after year.

Although the PGR proposed an ineffective methodology devoid of any scientific basis, the actual data show that the national economy suffered no impairment whatsoever, or at least that the facts adjudicated by the Court had no adverse effect on national economic development. Exhibit 774, a certification issued by the Banco Central de Costa Rica, clearly shows that the economy grew stronger and expanded year after year from 2001 to 2006 and suffered no impairment whatsoever. Likewise, Exhibit 774 shows that tourist numbers and tourism revenue consistently increased between 2002 and 2006 and never declined; in other words, the facts adjudicated here had no effect whatsoever other than to benefit them. Therefore, there is no causal connection, and the alleged harm to the national economy claimed by the PGR in connection with the facts adjudicated here does not exist. Exhibit 774 itself conclusively establishes that national exports did not decline as a result of the facts adjudicated by the Court.

It should be noted that the data series for 2001 through 2006 shows sustained growth in national exports; in other words, the facts adjudicated here had no impact whatsoever on exports. The PGR’s civil action (demanda civil) therefore should have been dismissed, with the PGR ordered to pay the corresponding costs. With respect to foreign direct investment, Exhibit 773 is clear: the Ministerio de Comercio Exterior certified that foreign investment never ceased to grow during the years 2001 through 2006, but instead increased and expanded year after year. The PGR’s civil action therefore should have been dismissed, with the PGR ordered to pay the corresponding costs. Accordingly, the PGR’s civil claims concerning the nonexistent harm to democracy and to the national economy are plainly unfounded and lack any evidentiary or legal basis, because neither democracy nor the economy was in any way affected by the facts adjudicated by the trial court in connection with the ICE-Alcatel case.

The Court therefore ruled citra petita (citra petita), insofar as it failed to decide the relief requested by Dr. [Nombre012]’s civil defense; the proper disposition is to dismiss the PGR’s civil action due to the complete absence of any social harm. In light of the foregoing, the Court committed the defect of inconsistency (vicio de incongruencia), because it was required to decide the civil actions brought by both ICE and the PGR, and the only legally permissible disposition was to dismiss them and order both civil plaintiffs (actoras civiles) to pay legal and procedural costs. Relief Requested (Petitoria). In light of the foregoing, the following relief is requested from the Court of Appeal:

“a) Grant this appeal against judgment No 167-201I of fifteen hours on veintisiete de abril de dos mil once issued by the Tribunal penal de Hacienda del Segundo Circuito Judicial, insofar as it concerns the civil claims (acciones civiles).” “b) Declare inadmissible the civil lawsuits (demandas civiles) brought by both the Instituto Costarricense de Electricidad and the Procuraduría General de la República, ordering both civil plaintiffs (actores civiles) to pay the legal and procedural costs incurred by the civil defense of [Nombre012].” “c) Uphold the objection of failure to join necessary defendants (excepción de litis consorcio necesario pasivo) with respect to the civil lawsuits brought by both the Instituto Costarricense de Electricidad and the Procuraduría General de la República, ordering both civil plaintiffs to pay the legal and procedural costs incurred by the civil defense of [Nombre012].” “d) Grant this appeal on the grounds that the judgment failed to state reasons (falta de fundamentación) concerning the grievances mentioned above, and order both the Instituto Costarricense de Electricidad and the Procuraduría General de la República to pay the legal and procedural costs incurred by the civil defense of [Nombre012], because the lawsuits were reckless, untenable, and brought in bad faith.” “e) Grant this appeal and dismiss the civil lawsuits brought by both the Instituto Costarricense de Electricidad and the Procuraduría General de la República on the merits, since the damages claimed by both civil plaintiffs do not exist, ordering both civil plaintiffs to pay the legal and procedural costs incurred by the civil defense of [Nombre012].”

VI.RULING ON THE APPEAL FILED BY ATTORNEY CRISTIAN ARGUEDAS ARGUEDAS.- Attorney Cristian Arguedas’s objection is well founded; the failure to rule in the judgment on the civil claims filed constitutes a denial of justice. A) Regarding the civil action for damages (acción civil resarcitoria) brought by the Instituto Costarricense de Electricidad. Considerando XV of the challenged judgment addresses the civil actions for damages. It states:

“The Civil Action for Damages brought by the Instituto Costarricense de Electricidad lacks an adequate factual basis supporting the relief sought and enabling the exercise of the right of defense and enforcement of the congruence principle (principio de congruencia) between the judgment and the civil action for damages, a defect that, by itself, constitutes an insurmountable obstacle at this stage of the proceedings and prevents this Court from ruling on the merits of that civil action.” (judgment, page 1862).

According to the trial court, Article 112(d) of the Code of Criminal Procedure (specifically, the requirement to state the grounds on which the action is based) means that the civil plaintiff must provide a clear, precise, and detailed account of the facts giving rise to the civil action, in order to safeguard the congruence principle (cf. judgment, pages 1862 to 1873). The court states that those grounds must be established when filing the application to be admitted as a civil plaintiff (solicitud de constitución de actor civil), and that it would under no circumstances be permissible to do so in the closing arguments at trial, as ICE’s counsel attempted to do (cf. judgment, page 1873). It adds that the failure to satisfy the formal requirement of describing the facts entails declaring a civil action for damages inadmissible pursuant to Article 291 of the Code of Civil Procedure (cf. judgment, page 1874), but that:

“When the formal defect is detected at the time judgment is rendered, the only possible consequence is to refrain from ruling on the merits of the matter raised, because it is not possible to do so validly” (judgment, page 1874).

It later adds:

“Given these circumstances, the appropriate course is to refrain from ruling on the merits of the civil action for damages brought by the Instituto Costarricense de Electricidad, whose formal defects clearly should have been cured during earlier stages of the proceedings or, had they not been cured, should have resulted in a declaration of inadmissibility. However, as previously indicated, at this stage of the proceedings the only solution available to the Court is not to rule on the merits, so that the interested party may pursue its claims in civil court” (judgment, page 1879).

We consider the trial court’s reasoning erroneous: even assuming that the highly detailed description of the facts whose absence the court below (a quo) faults constitutes a requirement of the initial application to be admitted as a civil plaintiff—a formalistic view that this chamber does not share—the court should, in any event, have ruled as appropriate on the merits, because once the matter had proceeded to trial, the proceedings could not be remanded to stages already foreclosed—admissibility or admission as a civil plaintiff—on the pretext that the civil plaintiff should “supplement its action and cure the defect” (judgment, page 1873) in its application for admission (which Article 179, second paragraph, of the CPP expressly prohibits), much less in order to refer the parties to civil court. What the trial court ordered constitutes an unmistakable denial of access to justice, a formalism lacking any reasonable basis in Article 112(d) of the CPP and resulting from an interpretation of that provision that conflicts with the rule established in Article 2 of the CPP, an error that must be corrected.

Account must also be taken of what will be stated in the following subsection of this consideration. B) Regarding the civil action for damages brought by the Procuraduría General de la República. On pages 1879 to 1892, the trial court further states that it is likewise unable to rule on the merits of the civil actions filed by the Instituto Costarricense de Electricidad and the Procuraduría General de la República because both improperly formulated their claims for relief, since “...there is no damage for which all the defendants must be jointly and severally liable, which is the premise on which the Instituto Costarricense de Electricidad and the Procuraduría General de la República quantified their civil claims. What might exist are damages caused by the criminal conduct of particular groups of defendants, for which the defendants in each group and potentially third parties would be jointly and severally liable, independently of any damages caused by other groups of defendants” (sic, pages 1884).

The court below explains that each group of defendants bears its own liability, independent of that of the other groups, insofar as the indictment does not allege that every defendant participated in every offense, which would be the only basis for holding all of them jointly and severally liable for the entirety of any damage caused. The trial court further states that, in some instances, the liability of the State or the Instituto Costarricense de Electricidad is ruled out, and it was therefore necessary to specify the damages claimed and the relief sought from each group of jointly and severally liable obligors, which the civil plaintiffs failed to do (cf. judgment, page 1886). The trial court states:

“By quantifying their claims in the manner they did, the civil plaintiffs (Procuraduría General de la República and Instituto Costarricense de Electricidad) left the Court unable to rule on their merits. In order to issue a valid ruling, the Court would have to separate the various groups of joint and several debtors, determine the specific acts attributable to them, and determine the potential damage that those acts may have caused to the Instituto Costarricense de Electricidad and/or to the collective or diffuse interests represented by the Procuraduría General de la República. The civil claims could then be assessed on that basis, but they would have to be modified in accordance with the aforementioned factual circumstances that form their basis. This is not a task that the Court may undertake, because determining such matters is exclusively within the purview of the parties, not the Court, which, were it to do so, would lose its objectivity and impartiality by remedying the parties’ deficiencies and would violate the congruence principle by ruling beyond the relief requested.

This is compounded by the fact that no attempt was made to determine the individual damage potentially caused by each group of joint and several debtors; consequently, even if the Court decided to do the civil plaintiffs’ work for them, it would lack the information necessary to do so. Moreover, were it to do so, it would ultimately be only upon judgment that the civil defendants would learn the concrete, definite, and specific claims asserted against them, thereby violating the due process (debido proceso) requirement that claims be specified before the conclusion of the preparatory proceedings, so that the civil defendants may duly exercise their right of defense—a right that would be violated if the Court ruled on the merits of the claims as formulated.” “In addition to the foregoing, no consideration was given to the fact that the Instituto Costarricense de Electricidad itself, which seeks compensation for damages and losses in its favor, is one of the legal entities that, by law, are jointly and severally obligated with the civil defendants to compensate for them.

In other words, if the damages and losses claimed by the Instituto Costarricense de Electricidad occurred, that institution must bear a portion of those damages because its own public officials (members of the Consejo Directivo and others) participated in causing them. In other words, and in principle, the Instituto Costarricense de Electricidad is jointly and severally liable for all the damages and losses it claims. Therefore, having borne them in full—which is equivalent to having assumed the entire joint and several obligation—if their existence is proven, the other joint and several obligors are not jointly and severally liable vis-à-vis the Instituto Costarricense de Electricidad, but instead bear the liability that exists among joint and several debtors within that relationship. In this regard, Article 649 of the Civil Code provides that ‘Joint and several co-debtors shall divide the debt among themselves in equal shares, unless otherwise agreed.’” “Since the civil action for damages (acción civil resarcitoria) brought by the Instituto Costarricense de Electricidad, which is jointly and severally liable (responsable civil solidario) for the damages it claims, is directed against other jointly and severally liable parties (obligados solidarios), the claim must be limited to the proportional share attributable to each of them, which can be determined only by considering all jointly and severally liable parties, since the debt is divided equally among them.

What is being asserted are the rights of action legally available to a joint and several co-debtor (codeudor solidario) against the others, rather than those available to the creditor against the joint and several debtors (deudores solidarios). Pursuant to section 693 of the Código Civil, ‘Every civil obligation grants the creditor the right to compel the debtor to perform that which the debtor is obligated to do.’ As to the amount of compensation under joint and several obligations (obligaciones solidarias), in relation to another jointly and severally liable party, a debtor is liable only for the proportional share attributable to that debtor and not for the whole amount (section 649 of the Código Civil), when private individuals are involved. In the case of public officials, each is liable according to the degree of participation in the act, and all participants must be taken into account in making that determination, even if they are not parties to the proceeding (section 205, subsection 1, of the Ley General de la Administración Pública).” “Accordingly, the Instituto Costarricense de Electricidad could not seek from the civil defendants (demandados civiles) the full amount of the loss and damage caused, nor did it have a joint and several cause of action against them.

First, it should have stated a concrete and specific claim (pretensión) with respect to each group of joint and several debtors, taking into account the concrete and specific damage caused by the particular act. Moreover, with respect to each civil defendant and within the context of each group of joint and several debtors, it should have specified the particular claim by allocating it proportionally: in the case of the private defendants, pursuant to section 649 of the Código Civil; and with respect to public officials, that particular claim should have taken into account each official’s degree of participation (section 205, subsection 1, of the Ley General de la Administración Pública). All of this, of course, had to be fully supported by the statement of facts, which was required to provide the factual basis for the claim; all such matters could be determined exclusively by the civil plaintiff (parte actora civil).” “As previously stated, under both the Ley General de la Administración Pública and the Código Civil, the specific determination of the claim had to take into account not only the civil defendants within each group of joint and several debtors, but all parties jointly and severally liable under the law, including those who had not been sued.

They likewise had to be considered in the internal allocation of civil liability (responsabilidad civil) in cases involving joint and several obligations, because otherwise the remaining joint and several debtors would be prejudiced by an increase in their liability. Once again, the Tribunal could not cure the party’s negligence without seriously infringing important principles of civil procedure, such as judicial objectivity and impartiality, the right to a defense, and due process generally, by allowing conduct contrary to the statutory provisions governing the civil action for damages that affects the proper conduct of the proceedings and the parties’ right to a defense; indeed, it would not be until judgment was entered that the parties would learn the nature of the specific claim being asserted against them.” “Similar objections may be raised regarding the civil actions brought by the Procuraduría General de la República, the State body to which the Código Procesal Penal assigns the pursuit of the Civil Action for Damages on behalf not of the State, but of Collective and Diffuse Interests (Intereses Colectivos y Difusos) (article 38 of the Código Procesal Penal).

When bringing the civil action for damages and formulating its claims, the Procuraduría General de la República could not disregard the fact that the State and the Instituto Costarricense de Electricidad were also designated by law as jointly and severally liable for the loss and damage to the collective or diffuse interests for which compensation was sought. This is because officials of the Poder Ejecutivo, the Poder Legislativo, and the Instituto Costarricense de Electricidad were involved in the possible occurrence of that loss and damage. By failing to bring a civil action for damages against those entities, the Procuraduría General de la República failed to discharge its obligations under sections 20 and 21 of its Ley Orgánica. The former provides: ‘In proceedings in which they appear before the judicial authorities, procurators shall have the powers vested in litigation representatives (mandatarios judiciales) under ordinary legislation, subject to the following restrictions: they are absolutely prohibited from admitting the opposing party’s claims, entering into settlements, conciliating, or withdrawing claims or complaints, or from submitting proceedings to arbitration, without the prior written authorization of the procurador general, the procurador general adjunto, or the official to whom they delegate such authority.

Anything done in violation of the preceding paragraph shall have no validity or effect, whether in or out of court, and any resulting nullity of proceedings that the violation reasonably warrants shall be declared by the courts of justice, even on their own motion.’ The second cited section provides: ‘The officials referred to in the preceding article are prohibited from failing to bring the claims or complaints in which they are required to participate as plaintiffs; (…).’” “Thus, in seeking compensation for social harm (daño social) on behalf of collective and diffuse interests, the Procuraduría General de la República could not demand full joint and several liability from all civil defendants without distinguishing, as was required in this case, among the different groups of joint and several debtors. It was required to determine, for each group, the specific criminal act attributed to it and the resulting damage, all supported factually by the statement of facts.

Because it did not proceed in that manner, but instead asserted a global claim as though all civil defendants had participated in all the charged offenses, and because the facts did not describe the specific damage caused by the specific act with respect to each group of joint and several debtors, the Tribunal, as with the civil action for damages brought by the Instituto Costarricense de Electricidad, is unable to rule on the merits of the civil actions. To do so, it would also have to perform the civil plaintiff’s work concerning matters solely within that party’s province, with the corresponding loss of objectivity and violation of due process, as reflected in the principle of congruence (principio de congruencia), the principle of the inviolability of the defense (principio de inviolabilidad de la defensa), and the principle of impartiality (principio de imparcialidad).” “The conduct of the civil plaintiffs involved deficiencies in the civil actions that, for the reasons stated, prevent the Tribunal from ruling on their merits.

It is true that those defects could have been remedied through timely and appropriate intervention by the courts involved during the stages preceding trial, by ordering their correction; however, by failing to do so and by admitting the civil actions in the form in which they were brought, those courts contributed to the failure to cure the defective procedural activity (actividad procesal defectuosa), which persisted until this point, when no corrective measure is any longer possible. Moreover, because that procedural activity involves defects of an absolute nature, such as violations of due process and the right to a defense, it cannot be deemed cured, and section 194 of the Código Procesal Civil is therefore applicable [...]” “Like the Tribunales of the preparatory and intermediate proceedings, the civil defendants could also have raised the identified defects in the civil actions for damages during the earlier stages rather than waiting until the closing arguments at trial.

Accordingly, they too bore a share of responsibility for the failure to cure the defects and for the resulting inability of the Tribunal to rule on the merits of the allegations, claims, and defenses asserted.” “In light of the foregoing, the proper course is to refrain from ruling on the merits of the civil actions brought by the Procuraduría General de la República and the Instituto Costarricense de Electricidad and to refer them to the civil courts so that their claims may be adjudicated.” (Judgment, pages 1887 to 1892).

Once again, the reasoning of the trial court (tribunal de juicio) is erroneous. Note that it states that it cannot remedy the deficiencies or negligence of the civil plaintiffs (actores civiles) without compromising its objectivity and impartiality, and that it cannot do the civil plaintiffs’ work of properly specifying their claims against each civil defendant (demandado civil). Nevertheless, it chooses to “refrain from ruling” and refers them to the civil courts so that they may correct there all the alleged errors they made when entering the proceedings (recall what was stated in the preceding section of this recital) or when asserting their claims. This decision genuinely compromises the judge’s objectivity and impartiality because it reveals a tendency (or “paternalism,” as Mr. Alejandro Batalla stated at the oral hearing) in favor of the civil plaintiffs, substantially prejudicing the civil defendants, who are deprived of a judgment promptly and fully defining or resolving the matter until the civil plaintiffs manage to pursue their claims correctly. The appellant has suffered prejudice that must be remedied in these proceedings.

• C)Costs (costas). The issue of costs was resolved in recital XV, subsection D (judgment, pages 1892 to 1893). The trial court states that it makes no special award of costs regarding the civil action because, since it refrained from ruling on the merits thereof, the conditions for an award of costs are not present. It further states that the civil plaintiffs had plausible grounds for litigating. As Mr. Arguedas argues, on the one hand, there is no express explanation as to why it may be assumed that the civil parties had plausible grounds for litigating, a deficiency that leaves the ruling unsupported; Article 266 CPP clearly provides that, when issuing the decision terminating the case, the court must provide reasons for its ruling on the payment of procedural costs and attorneys’ fees (costas procesales y personales). On the other hand, as previously stated, by refraining from ruling on the merits of the civil actions, the court below (a quo) committed an error that directly affects the determination of costs (cf. Article 270 CPP), causing prejudice to the parties that must be remedied in these proceedings.
• D)Conclusion. The errors identified in this recital regarding the civil actions and costs have prejudiced civil defendant [Nombre012], and by application of the extension-of-benefit principle (efecto extensivo), his appeal benefits the other civil codefendants because it is not based on exclusively personal grounds (cf. Article 443 CPP). It should be borne in mind that Article 124 of the Código Procesal Penal provides that: “From the time of entering the proceedings, the civilly liable third party (tercero civilmente demandado) shall enjoy all the powers granted to the accused for the accused’s defense insofar as the third party’s civil interests are concerned.” As to the correction or remedy required in this case, this Chamber cannot provide it directly—as Mr. Arguedas requests—but must order a remand trial (juicio de reenvío) before the competent criminal court, sitting with a different panel, for new proceedings on those matters (civil actions for damages (acciones civiles resarcitorias) and costs).

The remedy must be provided in a remand trial—in these same criminal proceedings—with the guarantees of adversarial proceedings (contradictorio) to preserve the principle of procedural equality (principio de igualdad procesal) (Article 6 of the Código Procesal Penal) and to allow any civil party that may ultimately consider itself prejudiced an opportunity to challenge the ruling by appeal. The trial concerning the civil consequences and costs must be conducted in accordance with the rules established in Article 359 CPP and on the basis that the facts alleged by the civil and criminal plaintiffs against the civil codefendants were not proven at trial. For all the foregoing reasons, Mr. Cristian Arguedas’s appeal is granted, the civil portion of the judgment is vacated insofar as it refrained from ruling on the substantive right at issue in connection with the civil actions brought by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as is the ruling regarding costs, and the case is remanded to the competent court for new proceedings on those matters.

VII. THE APPEAL OF [Nombre001], FILED BY ATTORNEY YAMURA VALENCIANO, PUBLIC DEFENDER, IS HEREBY DECIDED.-

1. Regarding the offense of passive bribery (cohecho impropio): Among the issues raised by attorney Yamura Valenciano Jiménez on behalf of Mr. [Nombre001], she expressed her disagreement with the judgment through several pleadings, the first of which was a “cassation appeal” (recurso de casación) filed on 30 de agosto de 2011 (see Volume XXXVII, folios 17685 to 17738), and subsequently through an appeal by conversion (recurso de apelación por conversión). This Chamber proceeds to decide the grounds that, standing alone, entail the nullity of the judgment and the acquittal of the defendant (justiciable) of the offense of passive bribery in the form of aggravated corruption (corrupción agravada). First Section.- Defects that, standing alone, entail the nullity of the entire decision. A. Expiration of the statute of limitations in the case (prescripción de la causa). In attorney Valenciano’s first ground, she alleges a violation of due process because the statute of limitations had expired in the case.

She states that she raised the statute-of-limitations objection (excepción de prescripción) at various stages and that it was rejected. The Trial Court based its rejection of the statute-of-limitations claim on the declaration that the case was subject to complex-case proceedings (tramitación compleja), issued on 3 de marzo de 2006, with the judges finding that, by virtue thereof, the reduction of the limitations period could not apply, pursuant to the third paragraph of Article 376 of the procedural legislation. According to the defense, procedural acts are governed by the law in force when they occur and produce effects under that law. According to attorney Valenciano, Article 376 of the Code of Criminal Procedure (Código Procesal Penal, CPP) did not provide any possibility for the declaration of complex-case proceedings to have retroactive effect or to interrupt the limitations period.

Her claim is well founded. The initial limitation period for the criminal action (acción penal), in the case of Mr. [Nombre001], was five years for the offense of passive bribery in the form of aggravated corruption, which, pursuant to Articles 340 and 342 subsection l, carries a maximum penalty of five years. Therefore, five years was the full limitation period to be calculated until the occurrence of an act interrupting the limitations period and reducing the term by half. The first act interrupting the limitations period occurred on 8 de octubre de 2004, the date on which the accused (imputado) appeared to give his statement concerning the facts; therefore, as of that date, the period for calculating the statute of limitations was reduced from five years to two and a half years, or thirty months. Those thirty months elapsed on 8 de abril de 2007, without the occurrence during that time of any of the grounds for interruption provided for in Article 33 of the Code of Criminal Procedure or any of the grounds for suspension established in Article 34.

Consequently, by the time the preliminary hearing (audiencia preliminar) was first scheduled, namely, on 10 de septiembre de 2007, the criminal action against [Nombre001] for the offense of passive bribery was already time-barred, and with it, the State’s authority to prosecute him criminally had expired. The reasoning supporting this conclusion was already stated in deciding the appeal of Dr. [Nombre012], to which reference is made to avoid unnecessary repetition. Accordingly, the case brought against [Nombre001] must be declared time-barred, and he must be acquitted of the offense of passive bribery in the form of aggravated corruption with which he had been charged. B. Defects concerning the determination of the facts and the assessment of the evidence to establish the circumstantial evidence (indicios) that led to the conviction for the offense of passive bribery. In the second ground of attorney Yamura Valenciano’s appeal on behalf of [Nombre001], she alleged a violation of the rules of sound judicial assessment (sana crítica), specifically the rules of logic and the principle of derivation (principio de derivación), with respect to the offense of passive bribery.

She identifies Articles 1, 6, 9, 142, 361, 363, and 369 of the Code of Criminal Procedure as the applicable provisions. The appellant states that it was found proven that her client accepted a promise of a gift (dádiva) from the company ALCATEL in exchange for taking the actions necessary for that company to be awarded expedited proceeding 1-2001, within the scope of his duties as an adviser to the presidency and coordinator of the interdisciplinary committee responsible for the project known as 400K. To reach this conclusion of guilt, the Trial Court gave weight to four items of evidence. These were a video from the company REPRETEL recorded at 3:59 on 29 de enero de 2004, an invitation to lunch, as described in evidence item number 81, document 8 of evidence item number 396 (folios 17, 19, and 21), the ICE internal memorandum PE-0102-P of 22 de febrero de 2002, evidence item N° 75, folios 324 and 325, and, finally, evidence item 686, which contains [Nombre058]’s so-called “proposed course of action.” According to [Nombre001]’s defense, it is not possible to derive from these items of evidence the conclusion of guilt stated in the judgment, namely, that [Nombre001] accepted a promise of a gift from [Nombre015] and [Nombre035] in late 2000 and early 2001.

Her claim is well founded. Although the offense is considered time-barred, and for that reason it would be unnecessary to continue any discussion concerning the offense of passive bribery charged against [Nombre001], this Chamber finds that the passive bribery in the form of aggravated corruption attributed to him cannot be inferred from the items of evidence considered by the Majority of the Court. This Chamber finds that the circumstantial evidence the judgment attempted to construct lacks the relevance and probative weight necessary to attribute criminal responsibility to [Nombre001]. In this regard, it must first be stated that the proposed course of action devised by political scientist [Nombre058] was not an invitation to commit corruption offenses and promote unlawful conduct by public officials. Beginning in 1999, it was not possible to determine the course that the issue of opening the cellular telecommunications market in Costa Rica would take. [Nombre058] devised a strategy that essentially called for reaching important sectors involved in public decision-making and convincing them of the need to move in that direction.

In other words, Mr. [Nombre058] was emphasizing the need to promote contacts that would facilitate the path toward the eventual opening of the telecommunications sector, but his plan did not encompass bribery or the promotion of corruption among public officials. Indeed, in 1999, Mr. [Nombre001] was not an official of the Instituto Costarricense de Electricidad. [Nombre001] joined the institution with the objective of unblocking certain processes that were indispensable at that time to the proper functioning of ICE and for which [Nombre001]’s expertise, based on his prior experience, would be of great assistance. The decision to bring him into ICE resulted from the efforts of Mr. [Nombre052]. At least in this regard, there is no evidence that Alcatel or [Nombre015] influenced the placement of a person who was key to their interests within the ICE structure. The judgment itself, at folio 15894 (folio 1452 of the judgment, Volume XXXIII), acknowledges that [Nombre001] began working at ICE in October 2000 as Executive Assistant for Senior Administration in the Executive Presidency, an appointment formalized as of 01 de enero de 2001.

Among the activities assigned to him were reading and studying documents, providing advice and recommendations on matters entrusted to him, and representing ICE in certain forums before governmental and nongovernmental organizations. The decision refers to the coordination role assigned to [Nombre001] in expedited proceeding 1-2002 for the leasing of 400 thousand GSM cellular lines (folio 1452). The appointment was communicated by the Executive Presidency to the various Strategic Business Units (Unidades Estratégicas de Negocios, UEN´s) on 22 de febrero de 2002 (evidence item 75, folio 324). At folio 15896, the majority opinion states that the person who appointed [Nombre001] was none other than [Nombre052], who confirmed in his testimony that the official was brought in to help “restore peace” within the institution, which had been seriously disrupted by the events surrounding the “combo eléctrico.” Mr. [Nombre052] stated that he had met [Nombre001] at the Universidad Nacional, in the Escuela de Planificación, and that after hearing about his skills and qualities, he decided that [Nombre001] was the person he was seeking for those peace-building duties, which he did in fact perform (folio 15896, folio 1454 of the judgment, Volume XXXIII).

With respect to coordination of the process for the concession of the 400 thousand cellular lines, [Nombre001] was responsible for managing communications with the various groups so that they could present their technical views, in addition to being highly active in the efforts undertaken both within and outside the institution, for example before the Contraloría General de la República. According to the judgment of conviction, [Nombre001] lacked experience in telecommunications, and it found Mr. [Nombre052]’s decision to hire him surprising; nevertheless, this establishes no more than possible negligence in his appointment. In this regard, the judgment relies on the opinion of Ms. [Nombre059] (folios 15896 to 15897, folios 1454 and 1455 of the judgment, Volume XXXIII), who refers to that lack of technical and legal experience, which, however, he gradually overcame. In general, the judgment links various elements to portray [Nombre001] as a key figure in the process of defining the 400 thousand cellular-line project, an activity to which he devoted himself intensively, as several witnesses identified in the judgment indicated.

These included Mr. [Nombre060] and Mr. [Nombre061], who had contact with him and knew him at that time; Mr. [Nombre062], Deputy General Director of Alcatel, and [Nombre063], Director of the ICE Development and Project Implementation Unit, also placed him in these duties (folios 1455 and 1456 of the judgment). From the statements in the judgment, it may be inferred that, at a certain point, Mr. [Nombre001]’s principal activity consisted of supporting and coordinating activities related to the 400 thousand cellular-line project. The Court’s theory consists of attributing to [Nombre001] the acceptance of a promise of a gift sometime between late 2000 and early 2001. The promise allegedly came from [Nombre015] and [Nombre035], with the objective that he take actions within the scope of his duties as adviser to the ICE Executive Presidency and as the person responsible for implementing the 400 thousand-line project, in order to favor Alcatel in this matter.

The majority opinion acknowledges that this conclusion must be reached indirectly because these were unlawful activities devised in secrecy and, therefore, any conclusion regarding them must arise from a chain of circumstantial evidence. This leads to the first item assessed by the Court, namely, the Repretel video recorded at 3:59 hrs. on 29 de enero de 2004, in which [Nombre001] acknowledged having received money from Alcatel, stated that he would accept the consequences of his unlawful conduct, and said that everything had resulted from spiritual weakness on his part (folio 1457 of the judgment). Defense counsel Yamura Valenciano challenges this circumstantial evidence.

He maintains the position that his client merely admitted having received a sum of money, but that this in no way signifies acceptance of a specific criminal classification (tipicidad), specifically bribery (cohecho), and that it was instead illicit enrichment (enriquecimiento ilícito), which would already be time-barred. Indeed, the voluntary statement made by Mr. [Nombre001] does not establish with certainty what criminal offense he committed; it merely states that he received a sum of money that he regarded as an illegitimate act for which he would accept the consequences. According to the court’s position, it was not necessary for [Nombre001] to characterize his conduct from a criminal-law perspective, because it was a journalistic interview that had to be judicially considered and interpreted. The court thus begins to interweave that statement by [Nombre001] with so-called item of evidence no. 396, which apparently is closely related to items of evidence no. 75 and 686, as well as document 8, folios 17, 19, and 21, all bearing the letterhead of Servicios Notariales QC S.A. With respect to the notes included in item of evidence numbered 396, identified as document 8, at folios 17, 19, and 21—evidence to which the court says it gives full credence—Ms.

Valenciano argues that the right of defense (derecho de defensa) was violated because their authenticity had been questioned from the outset, as they contained nothing indicating whether they had been sent or received and, moreover, bore no signature and did not identify who had prepared them. This was raised, but the claim was rejected by the Court. According to the defense’s position, these documents do not show that [Nombre001] received any promise of a gratuity (dádiva) from [Nombre015]; they merely refer to the fact that [Nombre001] was appointed by [Nombre052], and that [Nombre001]’s involvement arose from within ICE itself in order to unblock project implementation. What the note actually indicates is that initial contact was made with an official surnamed [Nombre061], with whom little progress had been achieved, and that a change of interlocutor was required. The person who signed the note states that he knows [Nombre001], a person recently appointed by [Nombre052], and that this person could serve as Alcatel’s interlocutor in negotiations concerning the new cellular expansions.

In fact, the note refers to certain attributes of [Nombre001], describing him as “more political” and stating that he “will not be tainted by the influences affecting the central administration.” These statements instead suggest that he possessed qualities conducive to more fluid communication. A later note adds that they had succeeded in having [Nombre001] “take the lead” in the negotiations and were now expecting a “more flexible position from the negotiating group.” This Chamber’s reading of this evidence does not support the understanding that a gratuity was promised to [Nombre001]; rather, it conveys the idea that they had found someone more open to dialogue and to adopting more flexible positions in response to a need that was also understood to be political, given the intense market pressure ahead of an election year. Similarly, a note dated 29 de noviembre de 2000 reflects enthusiasm because progress had been made in persuading ICE to consider other alternatives for meeting immediate needs.

Here, the position of the person signing these notes was to present a positive outlook regarding the progress of discussions concerning the opening of ICE, but the note also refers to the possibility that the Office of the Comptroller General might refuse to accept Mr. [Nombre052]’s proposal for a possible direct purchase and to the fact that the process was instead moving toward a competitive-bidding procedure (cfr. fls. 1458, 1459). It must be said that direct purchase was an objective established by Mr. [Nombre052], toward which he directed his efforts, although he encountered opposition from the Office of the Comptroller General, as will be discussed below. The author of the notes analyzed the progress of the opening process, its setbacks and difficulties, and [Nombre001]’s role in advancing it. It cannot be inferred from this, for example, that [Nombre001] had accepted a gratuity; the notes merely referred to positive information regarding an institutional climate favorable to opening the cellular market.

The court then incorporates into its reasoning an invitation from [Nombre015] to [Nombre001] to have lunch, coincidentally on 29 de noviembre, the same date as one of the notes just discussed. The judges accept that a lunch means nothing in itself, but they link it to the fact that such invitations were also extended to [Nombre026] and [Nombre021], as though this were the modus operandi for offering gratuities, when the evidence actually shows that such lunches were also offered to other ICE officials who have not been charged with any offense. Nevertheless, the majority of the court focuses on [Nombre001], as well as on [Nombre004], and infers from these courtesies an unlawful closeness and an institutional advantage supported by a promise of payment, which would ultimately benefit Alcatel in the award of the 400 mil cellular lines. The court’s reasoning purports not to regard these elements as isolated circumstances, or at least as circumstances disconnected from Alcatel’s intention to influence the entire process of opening the cellular market and secure its predominant position when participating in the award of the 400 mil lines.

At this point in the reasoning, the judges proceed to examine internal memorandum PE-010-P dated 22 de febrero de 2002, sent by the ICE Executive Presidency to the Strategic Business Units (UEN´s), reporting that, for the abbreviated procurement procedure (contratación abreviada) involving 400 mil GSM lines, a committee had been appointed under the coordination of [Nombre001], who would be responsible for the process of studying and awarding the project. Along the same lines, the memorandum states that the committee’s purpose was to review bids, respond to requests for clarification, conduct evaluations in every respect, recommend the award, consult on and resolve any appeals, all with the goal of obtaining due approval of the contract. The committee would report directly to a high-level body composed of [Nombre052], [Nombre061], and [Nombre027]. Because those notes were supposedly received by [Nombre015] and representatives of Alcatel Cit in France, the judges infer that [Nombre015] was aware of what was occurring internally at ICE with respect to the 400 mil-line project and was pleased with the appointment of [Nombre001] as the committee’s coordinator.

However, that satisfaction, whether generally or specifically, cannot be derived from this evidence, even though it may logically be accepted that he could have been satisfied with the direction the entire process was taking. Yet [Nombre001] was not solely responsible for that process; rather, it resulted from a chain of other circumstantial, institutional, and even opportunistic factors that were not under [Nombre001]’s control, even if he had wished to control them. It may thus be concluded, at least preliminarily, that the accusation (acusación) is based on the notion that [Nombre001] was offered a gratuity in his capacity as the person responsible for the award process involving the 400 mil lines, a position he held at least as of febrero de 2001, and that there is no clarity regarding what acts were expected of [Nombre001], beyond obtaining some advantageous position in a process that he did not control and that was subject to both the oversight and decision-making authority of a higher-level body.

The minority opinion (voto de minoría) refers to this circumstance, namely the lack of specificity regarding the acts expected of [Nombre001], which places the defense in a difficult position and impedes its work because it is unknown what [Nombre001] did that could have positively affected Alcatel’s expectations. In contrast to the position taken in the minority opinion, the two principal foundations supporting the reasoning of the majority opinion (voto de mayoría) point toward viewing [Nombre001] as an Alcatel operative whom the company succeeded in positioning within ICE and who subsequently became an architect of the multinational company’s business expectations, ultimately securing the award of the four hundred thousand lines. The fact is that [Nombre001]’s appointment did not result from any efforts by Alcatel. His appointment arose from a decision-making process in which Alcatel did not participate, however pleased it may have been with the appointment of someone “more political” and less “tainted” by the inherent vices of public administration.

Moreover, the effective award did not depend on [Nombre001]. His coordination and communication duties were aimed at creating the conditions for a decision that ultimately did not fall within his authority. The documents signed by “[Nombre091],” or at least bearing that indication, likewise do not show that [Nombre001] received instructions from Alcatel or placed his services at the disposal of the multinational company’s interests. The truth is that these documents, lacking proof of their connection and authorship, do not establish what the Court seeks to infer from them; nor does linking them to the video or to the notes addressed to the UEN´s support the conclusion that [Nombre001] received a specific promise from Alcatel. The video may support an inference that a gratuity was received for an act already performed, following the actual award, if a criminal-law consequence is to be drawn from what the accused (justiciable) stated, or at least that illicit enrichment was acknowledged; however, it does not constitute circumstantial evidence (prueba indirecta) of a promise of a gratuity, regardless of whether one might think otherwise given the decidedly extraordinary circumstances of [Nombre001]’s public admission to Repretel journalists that he had engaged in illegitimate conduct.

These monies were decidedly not received for lawful acts, as [Nombre001] acknowledged, but the information provided no context as to why they were received or what was given in exchange for them. Without that prior promise, the bribery charge collapses under its own weight, leaving only subsidiary offenses (figuras subsidiarias) that the Public Prosecution Service (Ministerio Público) could well have charged. The defense counsel’s complaint concerning the prosecution’s charging work and the court’s effort to link the indicia (indicios) leads her to discuss the logical flaws in the judgment, which prevent bribery conduct from being attributed to either [Nombre001] or [Nombre004], as well as the broad basis for acquitting them under the principle of in dubio pro reo, at least because there was no clarity as to which unlawful actions were being prosecuted and, specifically, which acts were carried out in connection with Alcatel’s expectations.

The judges joining the majority opinion accept that the final decision in the award process did not fall within [Nombre001]’s authority, but insist that it was important for [Nombre015] and [Nombre035] to have a key person on the coordinating committee because they already had [Nombre027], [Nombre026], and [Nombre004] in key positions. The convictions of [Nombre027] and [Nombre064] in their respective abbreviated proceedings (procedimientos abreviados) gave the court certainty regarding this arrangement of chess pieces devised by Alcatel to ensure its success in the award process. To this they add the document prepared by external consultant Mr. [Nombre058] (folio 1463 of the judgment), entitled “proposed action,” which refers to the need to approach people from different sectors—business, religious, and especially political—spanning the entire ideological spectrum, as well as legislators, former Presidents of the Republic, prospective candidates for the Presidency of the Republic, the political directorate of Liberación Nacional, and even the advice of a former president.

According to the majority ruling, this would have influenced the considerations of [Nombre015], as Alcatel Costa Rica’s representative, in carrying out the plan to approach [Nombre001], [Nombre004], and the other persons implicated in the case. Nevertheless, the consultant’s document did not encourage the creation of a network of bribery and corruption; rather, it offered advice on how to achieve a consensus favorable to a telephone-market opening solution aimed at using the GSM network. The strategic plan designed by this political scientist, intended to prepare Alcatel’s participation in Costa Rica’s cellular market, did not entail committing crimes, nor did it state that public officials should be corrupted with gifts in order to secure their participation and consent. As defense counsel Yamura Valenciano argues, [Nombre058]’s document is not evidence that could justify the conclusion that it formed the basis of the corrupt criminal scheme, much less the source underpinning any unlawful conduct by Alcatel’s directors.

In Recital “V” (Considerando “V”) of the Judgment, certain background facts of the case took into account that Alcatel was a company excluded from the direct purchases (compras directas) of telephone services made from Ericsson and Lucent Technologies, companies already established in the domestic market due to their distribution of TDMA networks, which had been dominant until then. According to the majority of the court (folios 974 and 975 of the Proven Facts-Considerando V-, Volume XXXII), this state of affairs did not suit Alcatel, and therefore its executives, including [Nombre015], planned an outreach strategy to change that situation. On January 26, 1998, by means of a note addressed to the Executive Presidency of ICE, Mr. [Nombre015] expressed Alcatel’s intention to donate 2000 GSM-PCS lines for an identical number of terminals. In March 1998, it was agreed to accept Alcatel’s donation, with the proviso that those lines would not be used to meet demand; this condition was subsequently corrected at an April 1998 Council session.

Regarding the opening of ICE to GSM (PCS) lines, the Consejo Directivo decided not to enter that field until the matter was included in the Telecommunications Law (Session No. 5042 of February 2, 1999). There were already indications here that entry into this field had been under consideration since 1999, subject, of course, to the proviso that it would not occur until the relevant law addressed this new area of development. Meanwhile, other decisions by the Consejo Directivo del ICE were directed toward arranging direct purchases of additional cellular lines from Lucent Technologies and Ericsson, in equal shares, which was a natural course of action given that TDMA technology dominated the cellular telephone market at that time. Subsequently, through another resolution, it was decided to add 10 thousand lines of that type with Ericsson for the metropolitan area. This course of action was understandable in view of the high demand for cellular lines and the technology available at that time, it must be emphasized.

Accordingly, it was then decided to make a direct purchase of 100 thousand cellular lines from the two providers existing at the time (Lucent and Ericsson), pursuant to Article 79.1 of the Reglamento General de Contratación Administrativa (folios 976 and 977 of the judgment). According to the ruling’s account, Alcatel disagreed with the course events had taken and believed that the direct purchase was unjustified because the items to be acquired were not exclusive. On May 23, 2000, during Session No. 5186, Alcatel Cit made a formal presentation to the Consejo Directivo del ICE concerning the benefits and advantages of GSM technology. Following this presentation, the Council asked ICETEL to prepare and submit, within three calendar months, a feasibility study (estudio de factibilidad), including a business plan (plan de negocios), that would enable the governing body to make a decision on the matter.

On May 30, 2000, at Consejo Director Session No. 5187, following statements by several members, it was decided that the time was not right to enter into direct contracts (contrataciones directas) with providers other than those already established or to migrate to another technology; however, a period of sixty calendar days was established to conduct a feasibility study and prepare a business plan and draft bidding specifications (borrador de cartel de licitación) for GSM-PCS technology, in order to determine the viability of changing technology and expanding the pool of telephone-technology providers for future procurements (number 24, folios 977 and 978 of the judgment, Volume XXXII). Up to this point, it could not be said that ICE was uninterested in migrating to another technology or that every possibility of including Alcatel among the cellular-technology bidders in Costa Rica had been rejected.

This Chamber finds, as defense counsel Yamura Valenciano correctly observes, that these steps were intended to establish decision-making conditions that would permit migration to another technology, supported by all the technical studies necessary to reach a reasoned decision on the matter. Thus, on June 13, 2000, at Consejo Directivo Session No. 5191, it was agreed to grant the ICETEL Deputy Management 45 calendar days to submit a comparative study so that consideration of the procurement of GSM cellular lines could continue; the decision adopted at Session No. 5182 of May 9 was suspended, and the requested report was ordered to be submitted on July 30, 2000. This reflects ICE’s need to decide how to address the demand for cellular lines existing in the country at that time, as well as the range or horizon of possibilities then available, which was largely limited to continuing the expansion of TDMA lines or migrating to GSM technology, which promised value-added services and more favorable prices.

ICE’s decision appeared to be shaped by this demand factor, but also by the circumstances surrounding the available technologies. For that reason, benchmarking studies (for comparing installation costs), feasibility studies, and business proposals were essential elements for reaching a sound decision consistent with the country’s needs and the evident public interest in this matter. This is apparent from the cited decisions of the Consejo Directivo del ICE. Nevertheless, the judgment interprets this entire situation as adverse to Alcatel, finding that decisions were not being made quickly enough and that [Nombre015] and [Nombre035] needed to secure Alcatel’s dominance because the Council’s actions were not intended to accelerate the decision-making process. From this, the judges infer that these defendants needed to corrupt public officials directly or indirectly connected with the decision in order to achieve their objective of having ICE open the bidding process (proceso licitatorio) for GSM cellular lines and ensuring that the final outcome favored Alcatel (cf. number 28 of folio 978 of the judgment, Volume XXXII).

On July 11, 2000, at Consejo Directivo del ICE Session No. 5199, it was established that ICE’s decisions were guided by the search for the best technology at the best price, in order to meet the growing demand for cellular lines affecting the country, through the most suitable procurement system in accordance with the Costa Rican legal system. Pursuant to these guidelines, it was decided to establish a committee composed of [Nombre065] and [Nombre004] to analyze, with the support of an external consultant, the legal viability of using a special expedited procurement procedure (procedimiento especial abreviado de contratación) for supplier companies that would allow mobile-technology equipment to be acquired in the shortest possible time (number 29, folio 979 of the judgment, Volume XXXII). Events thus began moving toward the acquisition of GSM telephone services. At Session No. 5249, the Consejo Directivo del ICE, in accordance with the technical department’s recommendations, ordered this technology to be implemented in the 1800 MHZ band and, as indicated by the mobile-telephony UEN, the latter had examined the technical feasibility of 400 thousand mobile-telephony solutions based on existing fixed exchanges operated by Alcatel, Siemens, Nortel, Ericsson, and Lucent.

From this, it may be inferred that the decision to adopt GSM technology did not arise from pressure exerted by Alcatel, but was instead an institutional objective based on technical decisions and business recommendations that identified GSM technology as an opportunity to meet existing demand and the expected growth of the Costa Rican market. Through document T-15547 ALCO 1187 of December 5, 2000, and taking into account adaptability, technological convergence, and the public interest, ICE’s Asesoría Legal considered direct contracting (contratación directa) appropriate. The Consejo Directivo del ICE also reasoned that because GSM technology was an open standard, it permitted the participation of multiple bidders, which would have a positive effect by reducing infrastructure costs and the cost of end-user terminals for consumers. These were unquestionably considerations that benefited the country and consumers and, in any event, ICE’s own business and growth prospects.

There was also an endorsement from an internal ICE department, namely the Asesoría Legal, which considered the direct-contracting process appropriate. At the aforementioned Session No. 5249, it was decided to request authorization from the Contraloría General de la República to expand the exchanges through the direct-contracting procedure, and Mr. [Nombre052] signed the notes addressed to the oversight body. Ultimately, the Contraloría did not endorse the direct-contracting system and instead opted for an expedited competitive procedure (procedimiento concursal abreviado). The note signed by Lic. Manuel Martínez Sequeira, Manager of the División de Asesoría y Gestión Jurídica de la Contraloría General de la República, dated January 23, 2001, was reviewed by the Consejo Directivo del ICE at Session No. 5260 of January 25, 2001. That note deemed the “direct-contracting” procedure unviable, but in view of the stated public-interest grounds, the oversight body authorized ICE to implement an “expedited competitive procedure” (cf. judgment, folio 980, Volume XXXII).

At that same Session No. 5260, the Consejo Directivo agreed to instruct the Subgerencia de Telecomunicaciones to immediately publish a notice in all newspapers with nationwide circulation for the purpose of inviting potential bidders for this equipment; this included not only the existing competitors, some of which were already ICE suppliers, but also any others that strictly complied with GSM technology protocols. At folio 981 of the judgment, the matters discussed and analyzed at Extraordinary Session No. 5271 may be read. The guiding purpose of that session was to assess the problems involved in meeting the existing demand for cellular telephone lines, since the planned measures to acquire additional lines would barely meet existing demand, while leaving a shortfall of more than two thousand six hundred and fifty applications.

The Board of Directors took into account the donation made by Alcatel, which had been received on 5 de mayo de 1998, consisting of GSM technology equipment that provided an opportunity to meet existing demand under prices and operating conditions that were favorable and reasonable for the institution (page 981 of Volume XXXII of the judgment). It was determined that this was an appropriate means of alleviating the demand for lines, and it was agreed to accept the proposal of the Mobile Services Strategic Business Unit (UEN de Servicios Móviles) to expand the GSM cellular system by 160 thousand lines through approval of direct contracting procedure (contratación directa) number 108792 with Alcatel CIT as the equipment manufacturer and Arrendadora Interfin S.A. as the company leasing that equipment (page 981 of the judgment, number 38, Volume XXXII). Curiously, on 20 de marzo de 2001, when approval of the minutes of session No. 5271 was put to a vote, the convicted defendant [Nombre027] requested that the portion concerning the expansion by 160 thousand cellular lines through a purchase from Alcatel be repealed. [Nombre027]’s motion was discussed and rejected. [Nombre052], [Nombre026], [Nombre066], and [Nombre004] voted against [Nombre027]’s proposal, while directors [Nombre027], [Nombre067], and [Nombre055] voted in favor, and minutes 5271 therefore became final.

The way was thus cleared to proceed with the acquisition of GSM technology lines through the abbreviated procedure (proceso abreviado) suggested by the Office of the Comptroller General of the Republic (Contraloría General de la República).

With respect to abbreviated procedure 1-2001, however, defense counsel Yamura Valenciano identifies shortcomings in the Trial Court’s assessment and emphasizes that one of them was its failure to conduct a thorough examination of the tendering process (proceso de licitación). At page 1170 of the judgment, it is stated that counsel for the various defendants considered the award procedure (procedimiento de adjudicación) lawful because expert witness [Nombre089] had so determined, since every legally required step had been completed and Ericsson’s bid contained instances of noncompliance and defects that led to its exclusion. The judges insist that Alcatel was favored not through compliance or noncompliance with the procedure described, but during earlier stages, such as when they state that [Nombre001] carried out preparatory acts (actos preparatorios), or when the vote was held by the Board of Directors, in which directors [Nombre027], [Nombre004], and [Nombre026] participated (page 1171 of the judgment).

In short, according to the Trial Court, even though the stages involving publication of the tender specifications (cartel), Alcatel’s submission of a bid, Ericsson’s disqualification, the dismissal of the latter company’s appeal, and the Comptroller General’s approval of the contract were all completed, it cannot be concluded—according to the trial judgment—that no corrupting or corrupt acts occurred (page 1171 of the judgment).

According to defense counsel, the judges mention procedure 1-2001, but do not examine it seriously. Had they done so, Ms. Valenciano argues, particularly during the hearing of the appeals that were filed, the Trial Court would have realized that the decision-making process was supported by technical studies demonstrating that all significant aspects were considered in the procedure followed, which is described as follows: “…The tender specifications were prepared publicly, after the entire telecommunications industry with a presence in the country, or its duly accredited representatives, had been invited to participate. Workshops were held at the hotel San José Palacio, where the tender specifications were assembled, including their technical, financial, technological, and legal requirements and the procedure for receiving bids. This led to the preparation of the tender specifications, which were ultimately published.

The purpose of proceeding in this manner was to achieve a form of consensus between the industry and ICE that would allow for a high-level technological proposal while also meeting the deadlines imposed by the Comptroller General and the provisions of the Ley de Contratación Administrativa, since preparing the tender specifications jointly would significantly reduce the stage for objections to those specifications and, consequently, the duration of the process itself.” The witness Mónica Valerio De Ford clearly stated: “…The 400K was a very large GSM leasing contract. It was a complex contract involving civil works and a separate equipment lease; it was a very open process from the outset, and all companies were invited even before the tender specifications were published. ICE held meetings with ICE teams, and all the companies brought their teams to participate.” The tender specifications did not bear Alcatel’s “DNA”; rather, they resulted from transparent, public work that was extensively discussed with companies such as Lucent and Ericsson, which were already ICE suppliers, although Nortel and Motorola also participated in addition to Alcatel.

As [Nombre056] stated, the process reflected an open procedure in which all interested companies participated. On 14 de junio de 2010, Doña [Nombre059] stated, in addition to the points raised by [Nombre056], that ICE’s budgetary constraints had been considered during the process. It was therefore a process in which the various elements involved were analyzed and companies such as Alcatel, Nortel, Ericsson, Nokia, Siemens, and Lucent made contributions during meetings held in the ICE auditorium and also at a hotel in the capital, although she could not determine whether it was the Corobicí or the San José Palacio.

Based on these findings, the defense contends that it was not plausible that Alcatel would have made an offer to defendant [Nombre001] only toward the end of 2000, because Alcatel’s entry into GSM technology had already occurred and the tender itself was conceived neither by ICE nor by [Nombre001], but by the Comptroller General. Moreover, at that time there could not yet have been any discussion of the 400 thousand-line project or a contracting process, since that was something initiated by the Comptroller General itself on 23 de enero de 2001. It was therefore impossible for him to have been offered an improper payment (dádiva) in 2000 in exchange for taking effective steps to secure a successful contract that was not known at that time.

According to Ms. Valenciano, the documentary evidence and the court’s reasoning reveal a logical fallacy committed by the judges in determining fact number 132. That fact establishes that [Nombre001], together with other ICE officials, succeeded in having the competitive procedure opened for the purchase of cellular telephony and in securing the award of the contract for the 400 thousand GSM lines to Alcatel, and that this was precisely why the improper payment was given to him. Nevertheless, as she explains, [Nombre001] did not “succeed” in having the competitive procedure opened for the purchase of cellular telephony; that was a decision made by the Comptroller General without ICE’s participation, since ICE preferred to proceed by direct purchase. Nor, the appellant emphasizes, can it be said that [Nombre001] succeeded in having the tender awarded to Alcatel, because the recommendation to award it resulted from an extensive study of the bids submitted by only two companies, Alcatel and Ericsson.

Those bids were evaluated from legal, technical, and financial perspectives by officials from specialized ICE units who were not under [Nombre001]’s influence. She places particular emphasis on this latter point because of the numerous technical, legal-timing, and financial considerations, which were outside [Nombre001]’s area of expertise and over which he could exercise neither influence nor control.

Accordingly, the judgment’s observations concerning the circumstantial basis (base indiciaria) for attributing these acts to [Nombre001] collapse under their own weight and in light of the compelling evidence regarding the abbreviated procedure under review, from which the legal and technical propriety of its award can be established. Following the course this Chamber has taken through the points raised in Ground “V” (Considerando “V”) of the judgment under review, which sets out the context surrounding the entire award of the GSM lines, it is clear that the decision was not an easy one. There were many reasons to continue expanding the TDMA platform and accept its technical limitations, or instead to open the national market to a technology that was beginning to be used throughout the world, offering significant advantages and value-added services while also enabling the prompt satisfaction of Costa Ricans’ need for new cellular lines.

The trial judgment attempted to portray a situation in which Alcatel felt excluded from all direct-purchase procedures and urgently needed decisions that would facilitate the opening to the new technology it could supply. It advances the theory that expediting the decision-making process required key figures who would support movement in that direction and would also favor Alcatel. In other words, the trial judgment sought to read the various sessions of the Board of Directors as containing the “symptom” of a corrupt decision that would ultimately benefit a bidder that had not acted transparently and had employed corrupting strategies to ensure the successful outcome of the process.

A review of those sessions and their resolutions, however, reveals a Board of Directors that sought to serve the public interest, meet existing demand, and prepare the country for challenges already emerging on the horizon. Before making any decision, it requested technical studies, comparative studies, business-strategy designs, and examinations of the technologies’ market positioning, with the aim of determining whether steering the country toward GSM technology and displacing the then-dominant TDMA technology would be advisable and consistent with the public interest. This Chamber can discern that there was interest in such a migration and that the technical studies supported that course.

The fact that Alcatel had donated equipment and certain GSM lines that ICE accepted is not overlooked, nor is the condition that they not be used to alleviate demand for telephone lines. Nevertheless, Alcatel presented the advantages of this technology to the Board of Directors, prompting a positive response. Technical studies and then benchmarking studies were requested to analyze the technical suitability and necessity of the technological change. All of this supports the conclusion that by 9 de mayo de 2000, an interest in this new technology was at least taking shape. This would subsequently culminate in proposed tender specifications founded on openness to the new GSM technology and supported by technical and legal-framework studies endorsing the steps ICE was taking in that direction.

In its majority opinion, the Trial Court failed to detect that trend and found that, as of 23 de mayo de 2000, ICE had not made a clear statement to that effect, even though, as shown, the Board of Directors itself had assessed the public interest in adopting a technology that would meet demand, preserve a broad pool of bidders, and also provide advantages to consumers.

All of this was already being said in May 2000, so there is a significant contradiction in the ruling (fallo) at folio 1117, where the Trial Court (Tribunal de Mérito), in its majority opinion (voto de mayoría), finds that “…regardless of the economic advantages of the proposal presented by Alcatel at that session, or the benefits of GSM technology, the fact is that the described decision by the institution’s Board of Directors establishes that, even as of May 23, 2000, that body had not made a clear or definite determination to venture into GSM technology. It may be observed that, on the one hand, the collegial body (órgano colegiado) was ordering a market study with a business plan so that the Board could make a decision. On the other hand, it directed that such study be prepared within 3 calendar months and, finally, it established that said analysis should be accompanied by proposed public-bidding specifications (cartel de licitación pública), which was contradictory because, if the decision to adopt GSM technology had not yet been made, it was not understandable how the Board was simultaneously requiring that the specifications for the public tender (concurso público) be included.

(judgment (sentencia), folio 1117, tomo XXXII). The truth is that there were several levels of decision-making: on the one hand, meeting the existing demand for new telephone lines and, on the other, choosing a technology that would better serve the public interest in high-quality telephone communications. The sessions of the Board of Directors show these two levels very clearly, and it may be observed how the steps in the decision-making process were accompanied by the relevant technical studies and opinions concerning business considerations and expediency. The majority opinion states that there was a contradiction because, even though a decision to adopt GSM technology had not yet been made, it did not understand why the Board requested that the specifications for the public tender be included. This was explainable when one considers that the initial decision was to purchase equal quantities of cellular lines from the two existing suppliers, within the framework of the equipment available at the time.

This necessarily entailed continuing with the direct-purchase procedures (procesos de compra directa) that ICE had previously conducted. Opening a bidding process was precisely intended to allow several bidders, and not only Alcatel, to participate in that process. In fact, the participating competitors would be those with experience supplying cellular-technology services that would enable ICE to offer quality service promptly and at a good price. As defense counsel Yamura Valenciano correctly argues in her oral defense of the appeal (impugnación), what best served Alcatel’s interests was a direct purchase, not the expedited procedure (procedimiento abreviado). Under a direct purchase, the acquisition of cellular solutions would be distributed proportionately among each of the bidders, and Alcatel would certainly participate. The expedited procedure, meanwhile, presented several circumstances beyond Alcatel’s control: the number of bidders, the financial and technical bids, and the evident possibility that it might not prevail.

At the same time, ICE’s actions, through don [Nombre052], were directed toward the direct purchase of technology from five competitors. This approach would ultimately not be endorsed by the Office of the Comptroller General of the Republic (Contraloría), which, after weighing the public interest that ICE’s own Board of Directors had identified, would indicate the advisability of the expedited procedure. The judgment itself clearly emphasizes that Alcatel was denied the opportunity to participate in the direct purchase of the original 100 thousand cellular lines, and that GSM technology would be acquired through a public bidding process (licitación pública) (folio 1119 of the judgment, tomo XXXII). The relevant technical studies were requested so that the bidding process could proceed, and a period of 60 days was allowed to obtain those studies. The judges joining the majority opinion chose to view the path toward acquiring GSM technology as uncertain, or at least unclear, rather than as an immediate decision.

Nevertheless, they accept that it was contingent upon the preparation of technical studies. The positions of [Nombre027] and [Nombre004] are cited as showing that they insisted on the direct purchase of additional TDMA cellular lines, which would have to be made from the suppliers already present at ICE, namely Lucent and Ericsson. Alcatel was not, and could not have been, included here. At folio 1122 of the judgment, it is clearly stated not only that the judges rejected the consistency of ICE’s decision to move toward GSM technology, but also that the Board was speaking out of both sides of its mouth because, while assessing the advantages of the multi-supplier model offered by GSM technology, it continued making direct procurements (contrataciones directas). In so doing, the judges failed to recognize the two levels of decision-making described above, which were justified by ICE’s dependence on the TDMA infrastructure that had been predominant in the country up to that time.

The same judges also emphasize that the benchmarking studies indicated that cellular-interconnection prices were falling, such that the path toward opening up the technology was not unreasonable, but rather a natural step that had to be evaluated, which was clearly what ICE’s directors were doing. The judges do, however, emphasize the campaign conducted by Alcatel and other suppliers in the media, as well as their efforts to persuade the Board to decide the matter of opening up the technology. From this they infer that [Nombre015] and [Nombre035] understood that Alcatel’s commercial interests were in jeopardy and that its opportunities to communicate with ICE had been reduced by the tense environment that had arisen. Beginning at folio 1123, the majority of the Court analyzes the award (adjudicación) of the 400 thousand cellular lines. Defense counsel Yamura Valenciano disputes that the judges could have found preparatory acts (actos preparatorios) by [Nombre001] intended to favor Alcatel in that procedure, because those acts are never described.

It is unclear whether [Nombre001] is being reproached for having disclosed confidential information to Alcatel, having received proposals after the deadline, or having committed some illegitimate or unlawful act. According to the appellant, a review of the bidding procedure (procedimiento licitatorio) clearly shows that the procedure was transparent, that bidders participated broadly, and that all of them—including Siemens, Lucent, Ericsson, and even Alcatel—made contributions. Siemens subsequently decided not to participate because of the bidding conditions, but it had the same opportunity to contribute to the process. Defense counsel disputes, however, that the judges could have found criminal intent (dolo) in any of this. The procedure was carried out in accordance with the procedures established by law. Only two bidders submitted proposals in this procedure: Consorcio Ericsson II and the joint bid by Alcatel CIT and Banco Centroamericano de Integración Económica (BCIE).

Ericsson’s bid was disqualified for technical defects, while the Alcatel-BCIE bid met the requirements established in the bidding specifications (cartel); accordingly, it was unanimously agreed to award the expedited competitive procedure (procedimiento concursal abreviado) to that bidder (judgment, folio 1127, Tomo XXXII). Don [Nombre052] testified at trial, the ruling emphasizes, that all of ICE’s technical departments recommended awarding the contract to Alcatel, adding that the award of the 400 thousand lines satisfied a large portion of the demand for mobile lines and that the negotiation was positive and justified the need to migrate to GSM technology in order to provide users of new technologies with more and better services. Former directors [Nombre055] and [Nombre067] also agreed on this point (folio 1127, tomo XXXII of the judgment). Ericsson’s appeal before the Office of the Comptroller General, challenging its disqualification, was denied, as may be seen in evidence No. 640, which contains a certified copy of the entire Procedimiento Concursal Abreviado No. 01-2001.

The contract executed for the lease with an option to purchase (arrendamiento con opción de compra) the 400 thousand GSM-technology lines in the 1800 Mhz band exceeded 149 million dollars and was approved (refrendado) by the Contraloría General de la República (see oficio No. 2543 DI-AA-698, folios 341 to 3446, Tomo IX (evidence 10), approval (refrendo) that occurred at the beginning of March 2002 (folio 1128 of the judgment, Tomo XXXII). It is therefore clear that the two pillars on which the judgment relies to find [Nombre001] guilty are unsupported: on the one hand, the promise of a gratuity (promesa de dádiva) falls apart because the migration was decided long before the date on which the indictment (acusación) places the promise of a gratuity to [Nombre001]; and, on the other hand, because it is readily verifiable, as this Chamber has done, that the decision to use the expedited procedure was a recommendation of the Contraloría General de la República, directly contrary to the wishes of don [Nombre052], who wanted to pursue a different course through the direct-purchase procedure.

That procedure would have directly benefited Alcatel by including it among the suppliers that, on a proportional basis, would each have provided a specific number of GSM-technology cellular lines, without the uncertainty created by a bidding process in which there was no guarantee of winning. Grounds for [Nombre001]’s Objection Regarding Bribery (Cohecho). Conclusions: With respect to proven fact (hecho probado) 28 and its comparison with proven fact number 35, the appellant states that there is a contradiction, which she describes as follows: “…because in the former the Court stated that [Nombre015] and [Nombre035] determined that it was necessary to resort to offering gratuities so that ICE would initiate the bidding process, but in fact 35 it finds it proven that the oversight body (ente contralor) was the one that authorized the expedited competitive procedure—that is, the bidding process.

How, then, could it have been proven that Alcatel offered [Nombre001] money to secure the opening of the tender if the judgment itself states that the Office of the Comptroller General opened the tender…” The appellant refers to a series of studies contained in the copy of the file for bidding procedure 1-2001:

• Legal review of the bids, pages 1939 to 1907. It is dated 16 August 2 001.

• Study and recommendation for the award under abbreviated procedure 1-2001, by the Mobile Services UEN, pages 2037 to 2026.

• Financial study, pages 2025 to 2006.

• Technical study by the infrastructure and energy/network planning group, dated 10 August 2001, pages 1954 to 1953.

• Technical study by the general matters, radio, and services group, dated 9 August 2001, pages 1952 1950.

• Technical study by the switching group, dated 8 August 2 001, pages 1949 to 1940.

It is emphasized that Ericsson’s bid was declared unviable because it contained at least 32 non-remediable violations of the bidding specifications (cartel). Alcatel’s financial bid was then opened, after which new studies were conducted with the bid price already known, and it was likewise determined that it was advantageous for the ICE to contract with Alcatel. The mechanism through which the project was processed was a lease with an option to purchase (arrendamiento con opción de compra). This was financed by the Banco Centroamericano de Integración Económica, which owned the equipment to be installed, while Alcatel was responsible for operating and maintaining the network and training ICE personnel. Accordingly—and the appellant insists on this point—it was the responsible department that issued a reasoned recommendation for the award of the bidding procedure, and on 28 August 2001, at session N° 5326, the Board of Directors awarded Alcatel the contract for the 400.000 cellular lines.

Ericsson appealed that decision before the Office of the Comptroller General (Contraloría) on 14 October 2 001; the appeal was denied on 19 December 2011, and the contract received approval (refrendo) on 7 March 2002. She therefore concludes that the Court reached an incorrect conclusion concerning [Nombre001]’s criminal participation, both because it failed to specify the “necessary actions” he allegedly undertook to secure the opening of the bidding process and the award of the contract to Alcatel, and because those processes were conducted—and there is evidence of this—through lawful procedures fully approved by the ICE’s technical departments and by the Contraloría itself, the latter having made the decision to conduct the bidding procedure that ultimately took place. With respect to the conduct constituting passive improper bribery (cohecho impropio), the appellant argues as follows: “…The acts charged against [Nombre001] as passive improper bribery run from number 133 to 187, of which only five attempt, imprecisely, to describe the alleged conduct.

The prosecution devoted the remaining numbered allegations to describing how [Nombre001] used the money he received. This is consistent with the fact that a large portion of the testimonial evidence presented at trial was intended to determine whether [Nombre001] spent the money on cows, cars, or motorcycles. The court did the same…” According to the defense, its strategy was to argue that so much attention should not be paid to the money, because its existence and payment might cause [Nombre001]’s conduct to fall within a different criminal offense, but that attention should instead be paid to the defects in the indictment (acusación), the impossibility of substantiating the acts alleged therein, and the fact that those allegations instead told a different story, suggesting that the money may have been delivered to [Nombre001] for reasons unrelated to the award of the 400 thousand GSM cellular lines.

She insists that the evidence was forced to fit the terms of the indictment, without regard for the requirements of the principle of derivation (principio de derivación), sound judicial reasoning (sana crítica), and due process (debido proceso). The appellant states that it was found proven that her client accepted a promise of a gift from ALCATEL in exchange for taking the actions necessary for that company to be awarded abbreviated procedure 1-2001, within the scope of his duties as adviser to the presidency and coordinator of the interdisciplinary committee responsible for the project known as “400K.” This Chamber agrees with defense counsel Valenciano that [Nombre001]’s participation in awarding the abbreviated procedure was neither important nor significant. All indications are that the award was consistent with objective factors supporting Alcatel’s technical and financial proposal, and that Alcatel received the endorsement of the ICE’s technical bodies, in addition to being the only company ultimately considered after Ericsson was disqualified because of the technical defects affecting its proposal.

The abbreviated procedure did not bear Alcatel’s DNA, meaning that the requirements were not designed around what Alcatel could or wished to offer; rather, the drafting process was open and participatory, with the collaboration of all potential bidders, all for the purpose of developing the best proposal while considering the ICE’s technological and financial needs. The ICE sought to serve, in the best possible manner, the overriding public interest in obtaining not only the telephone lines needed to meet existing and future demand, but also doing so at a reasonable cost to the ICE and the public. For that reason, linking [Nombre001] to the offense through the circumstantial evidence (indicios) identified by the Majority Court does not permit the elements constituting the criminal offense of passive improper bribery to be regarded as established, and supports the conclusion that the findings of fact against him lack the solidity and consistency required for a judgment of conviction, which would justify vacating the judgment. 2.

Regarding the offense of fraudulent simulation (fraude de simulación). In the third ground of the appeal filed by attorney Yamura Valenciano on behalf of [Nombre001], she alleges a violation of the rules of sound judicial reasoning, specifically the rules of logic and the principle of derivation, with respect to the offense of fraudulent simulation. The appellant contends that the court found it proven that the accused, [Nombre001], fraudulently transferred two vehicles bearing license plates [Valor037] and [Valor038] to the corporation (sociedad anónima) Dominical Antigua for the purpose of shielding them from the possible consequences of criminal proceedings against him, having been alerted to this by news reports circulating nationwide. The indictment was based on the following facts:

- The public disclosure of news reports identifying Servicios Notariales QC as one of the companies that deposited money on Alcatel’s behalf, and the knowledge that [Nombre001].

- The acquisition of the corporation Dominical Antigua by [Nombre029] and [Nombre001].

- The appearance of [Nombre029] and [Nombre001] before notary [Nombre028] on 30 September 2004 for the sale of three vehicles to Dominical Antigua.

Regarding the offense of fraudulent simulation (Fraude de Simulación), the appellant begins with the assertion that not everyone regularly learns of matters and events of interest through newspapers and television news programs. Nevertheless, the fact is that, in the case of the events associated with the famous “CAJA-FISCHEL” case, the dissemination of what occurred there, the path of the funds used to pay bribes and provide other benefits to those involved in the matters under investigation, occupied the entire country for quite some time, with details being circulated and discussed by all citizens. The defense’s reasoning—that [Nombre001] acted without reference to those newsworthy events and without any intent (dolo) to simulate contracts in order to conceal financial benefits that he had obtained unlawfully—cannot be followed. Thus, facts 183 and 184 show that the Trial Court deemed it proven that, in mid-2004, news media reported on corrupt dealings carried out by officials of the Caja Costarricense del Seguro Social.

As a result, both [Nombre001] and [Nombre029], both surnamed [Nombre068], learned of the inquiries and of the involvement of Servicios Notariales QC S.A. as part of the criminal scheme to pay bribes in the CAJA-FISCHEL case. In order to keep these assets safely beyond the reach of the investigations that might be initiated, [Nombre001] agreed with his sister to divert them through simulated legal acts (actos jurídicos simulados). The defense challenges this factual inference because it was not shown—or at least there is no argument demonstrating—that [Nombre001] regularly read national newspapers or watched the country’s television news programs, but the fact is that this circumstance is not essential to preclude the judicial inference. It is unnecessary to assume that only citizens who read newspapers and watch television news programs knew the details of the journalistic inquiries, followed by those of the Ministerio Público, concerning the CAJA-Fischel matter; the scale of the case, the type of persons involved, and the matter’s national significance must have been discussed within [Nombre001]’s close and immediate circle.

Moreover, he readily acknowledged unlawful acts to the news media, even though attorney Yamura Valenciano believes that Mr. [Nombre001] was not particularly fond of those media outlets. The idea underlying the Trial Court’s reasoning is not that everyone learns of events through the news, but also that they learn through the discussions those events prompted within circles close to Mr. [Nombre001]. Accordingly, the Trial Court may be understood to have developed an argument that included [Nombre001] not as a citizen who reads newspapers and watches television news programs, but as a person who was aware of what was happening and who was part of events that had the entire country awaiting the course of the investigations. The publications referenced in item of evidence number 682 do, in fact, provide details of the inquiries conducted and identify the persons allegedly involved in the offenses in that case (p. 1548 of the judgment).

There is a strong possibility that [Nombre001] knew of these reports, not necessarily through news programs and newspapers, but through the gossip and general discussion they were generating, which he knew could turn against him because of the channel used to pay the sums that he himself later acknowledged as unlawful on a television news program broadcast by Repretel. It is highly plausible that this occurred in this manner and caused the defendant (justiciable) to contemplate the possibility that his criminal conduct would be discovered, motivating him to fraudulently transfer two vehicles. Fact 185, in turn, establishes the following: “185) On or about 20 de septiembre de 2004, the defendant’s sister, [Nombre029], located Mr. [Nombre069], whom she knew and who operated an accounting business, and asked him to obtain three companies for her, leading him to believe that they were needed for family-related formalities.

Mr. [Nombre069] told her that he would contact attorney [Nombre071], who had companies for sale.” In this regard, attorney Valenciano argues: “…This fact, as deemed proven by the Trial Court, cannot be inferred from the testimony of [Nombre069], the only person who could have confirmed it. Beginning on page 390 of the judgment, the testimony given by [Nombre069] on 12 de agosto de 2010 is set forth; as relevant here, he stated: ‘Around 2004, I was called in for an interview; you yourself were the one who asked me whether I knew Mrs. [Nombre029], whether [Nombre029] had visited me, and I told you that she had visited me sometime in 2004; she visited me to say hello, and she also needed the services of a law firm, so I recommended attorney [Nombre071]. 1 ...] I do not recall informing the Fiscalía that [Nombre029] asked me to tell her who sold companies.’ Upon reading this testimony, it can be confirmed that the witness never said that [Nombre029] visited him at his office around 20 de septiembre de 2004, nor did he say that she had asked him for three companies in order to complete a family-related formality; rather, he stated that Mrs. [Nombre029] asked him to recommend a law office, and therefore he recommended attorney [Nombre071].

It is therefore evident that the witness’s statement does not support what the Trial Court deemed proven. In its analysis of the evidence (fundamentación intelectiva), the Trial Court likewise does not identify any other item of evidence from which it obtained the confirmation of this point in the accusation that was necessary to deem it proven…” Nevertheless, this Chamber does infer from this testimony that [Nombre029] was indeed seeking a law firm and legal advice concerning formalities that, even if they were not said to be family-related, were of interest to her. Furthermore, Mrs. [Nombre029] did in fact visit the law firm of attorney [Nombre071], who had corporations (sociedades anónimas) available that later became involved in the legal act or transaction under investigation. Regarding facts 186 and 187, the judgment establishes the following: “186) On 30 de setiembre of that year, attorney [Nombre071] delivered to [Nombre069] for sale three companies named Terra Toscana S.A., corporate identification number 3-101-376929; Dominical Antigua S.A., corporate identification number 3-101- 381503; and Camino Medieval S.A., corporate identification number 3-101-381113, each with book number one of the Shareholders’ Registry, Minutes of the General Meeting, Minutes of the Board of Directors, Journal, Ledger, and inventories and balance sheets, the original deed of incorporation, corporate identification card, and duly endorsed shares. 187) That same day, [Nombre029], acting in concert with co-defendant [Nombre001], had the documents of the aforementioned companies brought to [Nombre069]’s office, and once they had them in their possession, they immediately appeared before attorney [Nombre028] and, through deed number [Valor020], simulated the contract for the sale of three vehicles: two registered in the name of the accused (encartado), [Nombre001]—license plate [Valor037], a 1999 Volkswagen, for four million colones (04.000.000), and license plate [Valor038], a 2002 Toyota, for five million colones (05.000.000)—and another registered in the name of MCS Moriah, license plate [Valor033], a 2003 Suzuki, for four million colones (04.000.000), all of which were transferred on paper to Mrs. [Nombre070] in her capacity as representative of Dominical Antigua S.A.” With respect to these facts, attorney Valenciano disputes the possibility of inferring that this actually occurred as described in the judgment.

However, [Nombre071] himself confirms that the sale of those corporations did in fact take place and that a receipt was prepared and signed by [Nombre069]. Regarding this signature, the appellant states that there is an issue the Trial Court failed to resolve: whether it was in fact affixed by [Nombre069], since he did not recognize his signature on the document at folio 89, originating from item of evidence number 404. Nevertheless, the aforementioned discrepancy, which so concerns defense counsel, may be assessed in accordance with the rules of sound judicial reasoning (sana crítica), and it may be considered that, although it was not confirmed through handwriting-analysis evidence, there is at least an indication that the document existed and that it confirms, at least initially, that the companies were delivered to [Nombre069]. This would in turn corroborate [Nombre071]’s statement concerning delivery of the companies, which later became central to the questionable transfers under investigation.

The testimony of [Nombre069], as the trial court itself acknowledged, was hesitant and lacking in fluency, but its deficiencies were remedied by the testimony of [Nombre071] and [Nombre070]. Mr. [Nombre071]’s law firm, like other law offices, prepares and registers corporations that are kept available for prospective clients who may need them, and they are sold with their books duly legalized and their shares endorsed in blank. The alleged “lack of memory” of witness [Nombre069], who said that he did not recognize his signature on the receipt at folio 89 of item of evidence 404, was addressed by showing it to the other witnesses, who recognized the document bearing the office logo as the type customarily used, constituting both the acknowledgment of receipt and the invoice for collection; they also recognized the witness’s signature because it was the same one customarily appearing on other office documents.

In fact, Mr. [Nombre071] recalled that, a few days after the companies were sold, he spoke by telephone with [Nombre069], who told him that a client would come to the office to obtain [Nombre070]’s signature in order to transfer a vehicle or properties and that there was no problem with [Nombre070] signing (folio 1550 of the judgment). She likewise challenges, characterizing them as “mere presumptions,” the inferences made by the Trial Court in fact number 187, where it was deemed proven that [Nombre029] and [Nombre001] had the companies’ documents brought to the notarial office of attorney [Nombre028] in order to carry out the sales memorialized in deed number [Valor020] of that professional’s Notarial Record Book (Protocolo). Attorney Valenciano insists that there is no evidence whatsoever demonstrating that [Nombre029] and [Nombre001] acquired Terra Toscana, Camino Medieval, or Dominical Antigua.

According to defense counsel, only the testimony of attorney [Nombre028] could have clarified whether the defendants had the books of the aforementioned companies in their possession. She complains of the Ministerio Público’s failure to investigate whether the vehicles bearing license plates [Valor037], [Valor039], and [Valor038] were in [Nombre001]’s de facto possession (detentación de facto), which could have determined whether the transfer was real or simulated. Nevertheless, the trial court did assess evidence that could provide a significant indication of such de facto possession. It should be noted that, according to her testimony, [Nombre070] has never owned a vehicle, and even though she was the representative of the company acquiring the vehicles, it is surprising that she would acquire them if she had never owned a vehicle. Moreover, Mrs. [Nombre070] was the secretary at attorney [Nombre071]’s office, consistent with the firm’s practice of staffing the boards of directors of companies offered for sale with members of the firm—in this instance, [Nombre070], his assistant (folio 1546 of the judgment).

It is true that she participated in the legal transaction (acto jurídico) as the representative of the legal entity (persona jurídica) “Dominical Antigua,” but it is logical that, if the corporation (sociedad anónima) was to acquire those vehicles, Ms. [Nombre070] would be responsible for supervising, maintaining, and even driving those motor vehicles. It is true that the acquisition of these vehicles through the corporation is, in principle, an act permitted by the legal system (ordenamiento jurídico); however, it is strange that the representative of the legal entity would not have control over those assets, at least to attend to the maintenance needs of those motor vehicles or to move them to a place where they could be properly parked. This conclusion does not involve any confusion of legal terms or any requirement incompatible with the legal nature of the position of representative of the corporation; it is merely a plausible reflection on Ms. [Nombre070]’s participation in these transfers (traspasos) and the legal reason and purpose behind the acquisition of the motor vehicles.

It is true that Ms. [Nombre070]’s testimony is not proof that the transfer was rigged and unlawful; this follows from a comprehensive assessment of the available circumstantial evidence (indicios), which the trial court divided into two stages for purposes of its analysis. The first was the acquisition of the corporations and the second was the legal act of transfer, demonstrating that what the entire legal arrangement concealed was a sham contract (contrato simulado) whose purpose was not to transfer anything, but rather to conceal assets acquired with funds that [Nombre001] himself characterized as illegitimate. Moreover, the conduct of the defendant himself—acquiring the corporation and rushing to carry out the transfers—reveals, as the Court properly emphasizes, his objective of carrying out a fictitious transfer that would protect those assets from legal action. This is also why the logical fallacy alleged by defense counsel did not occur.

According to her, there was a cum hoc ergo propter hoc circumstance under which a nonexistent cause-and-effect relationship was asserted. In this case, however, there is an important evidentiary inference from which it may be concluded that, in light of the events in the Caja-Fischel case, [Nombre001] and his sister sought a way to prevent the discovery of assets that had been acquired with money received from a company that would later be linked to corrupt acts. There is no direct evidence, but there is circumstantial evidence (prueba indiciaria) of the connection between the two events, and there is a sufficient factual basis to reach the conclusion drawn by the trial court concerning the elements constituting the offense of Simulation Fraud (Fraude de Simulación). For the foregoing reasons, the ground raised by defense counsel against the judgment cannot be sustained. Regarding the determination of the value of the transferred assets constituting Simulation Fraud and the reasons supporting the sentence for that offense.

The fourth ground raised by attorney Valenciano on behalf of the accused [Nombre001] concerns the Court’s determination that the value of the transferred assets exceeded ten base salaries and that those assets constituted the subject matter of the sham purchase-and-sale agreement (contrato de compraventa simulado) charged in the indictment. The issue concerns fact number 187: “That same day, [Nombre029], by mutual agreement with co-defendant [Nombre001], had the documents of the aforementioned corporations brought to [Nombre069]’s office and, once they had them in their possession, they immediately appeared before attorney [Nombre028] and, through deed number [Valor020], simulated a contract for the sale of three vehicles: two registered in the name of the accused [Nombre001], license plate [Valor037], a 1999 Volkswagen, for an amount of four million colones (44.000.000), and license plate [Valor038], a 2002 Toyota, for an amount of five million colones 05.000.000); and the other registered in the name of MCS Moriah, license plate [Valor033], a 2003 Suzuki, for the amount of four million colones (4.000.000), all transferred on paper to Ms. [Nombre070] in her capacity as representative of Dominical Antigua S.A.” The appellant states the following in this regard: “…Article 218 of the Criminal Code provides that the penalty specified in Article 216, depending on the amount involved, shall be imposed upon anyone who, to the detriment of another and in order to obtain an undue benefit, enters into a sham contract.

Article 216 provides that the penalty shall be two months to three years if the amount defrauded does not exceed ten times the base salary, and six months to ten years if it exceeds that amount. Thus, based on the sentence imposed for the offense of Simulation Fraud—ten years’ imprisonment—it is assumed that the court considered [Nombre001]’s conduct to fall under the second subsection of Article 216, that is, that the amount defrauded exceeded ten times the base salary, even though the judgment did not analyze, explain, or substantiate this in its legal reasoning (fundamentación jurídica). The judgment found it proven that the defendant [Nombre001] simulated a contract for the sale of two vehicles to Dominical Antigua S.A.: license plate [Valor037], a Volkswagen, and license plate [Valor038], a Toyota. The deed stated that the vehicles were valued at four million and five million colones, respectively.” The appellant is correct in her arguments.

The Court did not explain how it determined the value of the transferred vehicles: whether it took that value from the amount stated in the deed or used some other benchmark to determine whether the amount defrauded exceeded ten base salaries. There is no expert appraisal (peritaje) in this regard or any equitable valuation (fijación prudencial) that could have served as a basis for discussion of this issue, which is of great importance in determining the possible range of punishment to which the accused could be subject if found guilty of the offense of Simulation Fraud. Defense counsel Valenciano must also be found correct regarding the determination of the sentence imposed on the accused [Nombre001] for the offense of Simulation Fraud, an issue to which she devotes the sixth ground of her appeal. The Court did not provide sufficient reasons for the ten-year prison sentence imposed on the defendant—the maximum penalty prescribed for this criminal conduct—to be considered proportionate, appropriate, and necessary.

After addressing capacity for culpability (capacidad de culpabilidad) and awareness of unlawfulness (conciencia de antijuridicidad), stating that the acts were defined by law as offenses, unlawful, and culpable, and recapitulating the proven facts, the court devoted a single brief paragraph to attempting to provide reasons for the sentence (cf. pages 1553 and 1554 of the judgment). The particular point to which the defense wishes to draw attention is that this paragraph is exactly the same one the court used to justify the sentences imposed on defendants [Nombre001] and [Nombre004] in the aggravated corruption case, revealing the court’s complete lack of interest in setting out the reasoning that led it to impose, it bears repeating, the maximum penalty prescribed for Simulation Fraud…” She transcribes the passages of the judgment in which this assessment was made and observes that the only thing changed in the assessment for the two defendants was the name.

As she already explained, the court favored reasoning based on negative special prevention (prevención especial negativa), but without giving any genuine reason that, in accordance with the principles of the rule of law (Estado de Derecho), would support its determination of the punishment warranted by the wrongful act committed. Neither counsel for the accused nor this Chamber has any means of reviewing the true reasons for imposing this sentence or the basis for individualizing the length of the custodial sentence (quantum de la sanción privativa de la libertad) at its maximum. Accordingly, the judgment must be vacated with respect to the Simulation Fraud for which [Nombre001] was convicted, solely as to the determination, based on the relationship between Articles 218 and 216 of the Criminal Code and the value of the amount defrauded, of the applicable sentencing range, as well as the sentence imposed.

The case is remanded for consideration of these two matters: the amount defrauded shall be determined in accordance with procedural rules; on the basis of that amount, the minimum and maximum limits of the sentence to be imposed shall be established; and reasons for the sentence shall be provided in accordance with constitutional requirements and Article 71 of the Criminal Code. The judgment concerning Simulation Fraud remains undisturbed in all other respects. 3. Regarding the violation of due process (debido proceso) through the introduction of unlawfully obtained evidence (prueba ilegítima) not admitted at trial. Attorney Yamura Valenciano explains that the Court never established, in a manner consistent with the rules governing the admission of evidence into the proceedings, the date of the REPRETEL video in which [Nombre001] had allegedly admitted receiving money from ALCATEL. She reviews the provisions of procedural law governing the admission of evidence in Costa Rican criminal proceedings and states that, in violation of those provisions, the Trial Court subtly assigned a date and time to the video that had never been legally established.

Indeed, the defense did not have an opportunity to challenge this matter until the present appellate stage. According to the defense, the Court’s action placed it in a state of defenselessness (indefensión), because it had no knowledge of the evidence and could neither scrutinize nor challenge it. She transcribes the portion of the judgment in which the defect occurred: “Now, as already mentioned, a Repretel video dated 24 de septíembre de 2004 has been viewed, in which the accused [Nombre001] voluntarily admits to the interviewing journalist that he received money from the Alcatel company; between 28 and 30 de septiembre de 2004, news concerning this event was published in the national newspapers.” (page 1551). In this regard, the appellant adds: “…According to the text of the judgment just cited, there was a video from the company Repretel that was admitted at trial. There is no dispute on this point; indeed, it was offered by the Public Prosecutor’s Office, accepted by the court, and duly admitted.

The defense’s objection concerns the fact that no evidence was ever admitted at trial that would establish the date on which the video was made, an issue that was even raised by the defense during closing arguments because, as part of its defense strategy, the prosecutors’ omission of that information was crucial, insofar as the video could not be placed in time and this limited its probative value. It is inadmissible, under the rule of law, for a court to wait until the parties have completed their closing arguments and then, in response to weaknesses in the investigation identified especially by defense counsel, take over the prosecutor’s role, seek out information that was not properly admitted into the proceedings, and assess that information to the detriment of the defendant…” There is a subtle reference to that information, but a clear omission of any reference to the lawfully admitted item of evidence (elemento de prueba lícito) from which it was derived, resulting in reliance upon a nonexistent item of evidence, which the Court knows full well is the situation presented in this case.

The appellant (recurrente) finds other references in the judgment to the video indicating other dates and times of its alleged broadcast: “…Note how, even elsewhere in the judgment, specifically on page 1457, the court refers to the same video but states that it is a Repretel video from 3:59 hours on 29 de enero de 2004, thus leaving doubt as to which date is correct, 29 de enero de 2004 or 24 de septiembre de 2004—information over which the defense exercised no control at trial, but only at the cassation stage (casación). The inclusion in the judgment of the alleged date of the Repretel video leaves the accused (imputado) without an effective defense, because, since this was not presented at trial as evidence offered and admitted, he was left defenseless; neither defense counsel nor the accused personally could verify whether the information was true, challenge the evidence in any way, or challenge the conclusions that the court drew in the judgment from information gathered after the close of trial.

This is not merely a date. Its inclusion has a momentous consequence for the court’s decision: it provides a temporal point of reference that was never supplied by the prosecution and that the court uses to ‘prove’ that, when the accused sold the vehicles to the corporation Dominical Antigua, 30 de septiembre de 2004, he already knew that he might be linked to the acts of corruption addressed in the judgment…” “To determine what the accused’s intention was when mentioning them and thus dispersing his assets, simulandi, in the sense that he would be subjected to criminal proceedings and given the time when these legal acts occurred and the need he had (…) Now then, as already noted, a Repretel video dated 24 de septiembre de 2004 has been reviewed, in which the defendant [Nombre001] voluntarily admits to the interviewing journalist that he received money from the company Alcatel; between 28 and 30 de septiembre, news concerning this event was published in the national newspapers.

That reporting mentions a series of facts revealing the magnitude of the events. The Court considers that it was precisely those circumstances that led the accused to transfer his vehicles to a corporation. From that moment onward, coupled with the voluntary statements he had made days earlier, [Nombre001] consolidated his awareness that he would probably be subjected to criminal proceedings and that his assets might be pursued by the authorities, making it necessary to place them beyond their reach.” (folio 1551). In this regard, the appellant reiterates her criticism of the judgment, both because it makes a finding unsupported by reasoning based on evidence duly admitted and because the court inferred his knowledge of the situation from the date of a video whose exact date remained unknown until the judgment was served. In support of her claim, she cites an opinion by Justice Rosario Fernández Vindas appended to Voto No. 1329-2006, in which the Justice understood that a court could not state that it had acted in accordance with sound judicial reasoning (sana crítica) and experience when its assessment of an item of evidence was not drawn from the evidence received at trial but from an assessment generated by the Court itself without being subjected to adversarial scrutiny (contradictorio), thereby leaving that assessment within the judge’s private knowledge.

According to the appellant, Justice Fernández’s opinion is relevant because there are indeed consequences in this case: if the information that was introduced is excluded, there is no way to prove that, by 30 de septiembre de 2004, the accused knew that an investigation had been opened in which Servicios Notariales QC S.A. was mentioned, such that he would suspect that his name would become embroiled in a scandal and, as a result, decide to transfer his vehicles fraudulently. She requests that the ground for appeal be granted, that the judgment be vacated insofar as it convicted him of the offense of Fraudulent Conveyance (Fraude de Simulación), and that, in the interest of procedural economy, the accused be acquitted because there is no evidence proving the alleged conduct. The appellant is correct; however, invalidating the information concerning the date of the Repretel video does not have the effect of leaving the factual finding regarding Fraudulent Conveyance without evidentiary support.

The argument made by [Nombre001]’s defense counsel concerning the date and time of the video produced by Repretel, in which the defendant allegedly admitted receiving money from Alcatel, was not established in a manner that would have allowed the defendant and his counsel to know of and challenge it. Indeed, the judgment contains no determination explaining how the date and time of that video were established with the certainty attributed to them by the majority opinion. Defense counsel additionally establishes that two different dates are given in various portions of the judgment: in one part of the judgment, specifically on page 1457, the court refers to the same video but states that it is a Repretel video from 3:59 hours on 29 de enero de 2004, thus leaving doubt as to which date is correct, 29 de enero de 2004 or 24 de septiembre de 2004—information over which the defense exercised no control at trial, but only at the cassation stage.

The information concerning the date and time is indeed highly significant to the defendant’s defense strategy, since it was in that interview that he admitted having unlawfully received money from Alcatel and stated that he accepted the consequences. Likewise, based on the video, he is linked to an entire criminal plan to remove movable property from his estate and place it beyond the reach of justice. The latter is an important part of the inference drawn by the court regarding the offense of Fraudulent Conveyance attributed to him, because it states that this was among the factors that led him to decide to execute a sham contract of sale with a corporation. At the hearing on the appeals filed in this case, defense counsel offered a letter dated 30 de octubre de 2012, signed by [Nombre072], Head of News Information at Repretel, appearing at folio 174382 of Volume XLI, stating that it was not possible to certify the date on which journalist [Nombre073] interviewed Mr. [Nombre001]; what could be certified was that the document entered its archive on 7 de octubre de 2004.

The letter explains that the television station stored such videos in a television-industry format that is now obsolete, since digital format is currently used. Accordingly, not even information from the television company itself could establish, with the certainty as to date and time asserted by the court, the fact now challenged by the defense of the accused [Nombre001]. Likewise, it must be considered that, if this constitutes the judge’s private knowledge or an inference drawn from other elements, sufficient reasons must be given so that the matter may be reviewed by this appellate court and, potentially, on cassation, and so that it may be determined what elements allowed the judges to conclude that the video had one specific date. However, although this would render the fixing of the video’s date and time unlawful, it would not render the recording itself unlawful, because it was lawfully offered and introduced into the proceedings and may be assessed by the trial court (tribunal de mérito) and by this appellate court.

Likewise, other evidence, considered in the preceding section, supports the valid and reliable finding that the defendant attempted to remove certain movable property from his estate and place it beyond the reach of justice through sham acts or contracts of sale. The evidence was, of course, challenged by the defense, but this Chamber has already concluded that it supports the same conclusion reached by the trial court, together with the fact—which must be emphasized—that it was not necessarily the Repretel video itself or the television or newspaper reports that led [Nombre001] to decide to remove these assets from his estate. It is clear that he could readily have learned of the matter through general comments made within his close or trusted circle, or from coworkers who discussed the circumstances that were unfolding alongside the inquiries conducted into the case known as Caja-Fischel, which shared certain elements with the matter in which [Nombre001] knew himself to be involved.

For these reasons, even if the trial court’s reference to the video’s date and time were hypothetically excluded, other evidence—properly introduced and assessed at trial—would remain to support the indicia from which [Nombre001]’s criminal plan may be inferred, namely, his attempt to remove assets from his estate in anticipation of the investigations against him that would soon follow.

VIII.THE APPEAL FILED BY [Nombre004] THROUGH ATTORNEY YAMURA VALENCIANO, PUBLIC DEFENDER, IS DECIDED.- 1. Regarding the offense of improper bribery (cohecho impropio): Among the issues raised by attorney Yamura Valenciano Jiménez on behalf of Mr. [Nombre004], she expressed disagreement with the judgment through a converted appeal (recurso de apelación por conversión), which she filed in Volume XXXIX. This Chamber proceeds to decide the grounds that, standing alone, entail the nullity of the judgment and the acquittal of the accused (justiciable) of the offense of improper bribery in the form of aggravated corruption (corrupción agravada). First Section.- Defects that, standing alone, entail the nullity of the entire decision. A. Limitation of the proceedings (prescripción de la causa). In her first ground, attorney Valenciano alleges a violation of due process because the proceedings became time-barred.

She states that she raised the statute-of-limitations objection (excepción de prescripción) at various stages and that it was denied. The Trial Court’s stated reason for rejecting the statute-of-limitations claim was the declaration that the proceedings were complex (declaratoria de tramitación compleja), issued on 3 de marzo de 2006; the judges considered that, as a result, the reduction of the limitation period could not apply, pursuant to the third paragraph of Article 376 of the procedural legislation (legislación de rito). As argued by the defense, procedural acts are governed by the law in force when they occur and produce effects under that law. According to attorney Valenciano, Article 376 CPP did not permit the declaration that the proceedings were complex to have retroactive effect or to toll the limitation period. Her claim is well-founded. In this case, [Nombre004] was charged with improper bribery in the form of aggravated corruption, which, under Articles 340 and 342 subsection 1, carries a maximum sentence of five years.

Therefore, five years was the full limitation period that had to be calculated until the occurrence of an act interrupting the limitation period and reducing it by half. The first act interrupting the limitation period occurred on 10 de octubre de 2004, the date on which the accused appeared to give his statement concerning the facts; accordingly, from that day onward, the limitation period was reduced from five years to two and a half years, or thirty months (see folio 146, Volume I). Those thirty months elapsed in abril de 2007, without the occurrence during that time of any ground for interruption provided for in Article 33 of the Code of Criminal Procedure (Código Procesal Penal), or for suspension established in Article 34. Consequently, by the time the preliminary hearing was first scheduled, namely, 10 de septiembre de 2007, the criminal action against [Nombre004] for improper bribery was already time-barred, and with it the State’s authority to prosecute him criminally had expired.

The reasoning supporting this conclusion was already set out in deciding Dr. [Nombre012]’s appeal, to which reference is made to avoid unnecessary repetition. It is therefore appropriate to declare the proceedings against [Nombre004] time-barred and acquit him of the offense of improper bribery in the form of aggravated corruption with which he had been charged. B. Defects concerning the determination of the facts and assessment of the evidence used to establish the circumstantial evidence (indicios) that led to the conviction for improper bribery. Although the proceedings against [Nombre004] have been declared time-barred, and any further assessment of the elements comprising the court’s determination of guilt might therefore be of no consequence, it is now appropriate to examine other aspects that could render the judgment null due to shortcomings in its reasoning process and in the inferences drawn by the majority opinion of the Trial Court.

It is therefore pertinent to examine the third ground of the appeal filed on behalf of [Nombre004], in which attorney Yamura Valenciano alleges violations of the rules of logic and the principle of derivation (principio de derivación) in the reasoning supporting the judgment insofar as it attributes the offense of improper bribery to the accused. She begins by quoting facts 116 and 117 of the judgment: “116) During his tenure as a member of the Board of Directors of I.C.E., the accused [Nombre004] maintained fluid and highly confidential communications, arising from his position, with the accused [Nombre015] and the suspect [Nombre035]. 117) On an unspecified date, but during the period between the end of 2000 and the beginning of 2001, the accused [Nombre015] and [Nombre035] asked the accused [Nombre004] to take the necessary actions within the scope of his duties as a member of the Board of Directors of I.C.E. in support of Alcatel’s interests, primarily by promoting the migration from TDMA technology to GSM technology, encouraging purchases through bidding procedures, and preventing them from being aborted.

Subsequently, once the abbreviated procurement process for the 400.000 was authorized, they asked him to vote in favor of awarding that tender to Alcatel; in exchange for all the foregoing, they promised to give him a gratuity (dádiva), which would be paid in money. That promise was accepted by the accused [Nombre004]….” The arguments used by the court to establish that this promise was made are as follows: “Consequently, it is clear that the circumstances described did nothing to advance the commercial interests of Mr. [Nombre015] and [Nombre035], representatives of Alcatel CIT, which motivated them to promise and subsequently give a gratuity to [Nombre004], who, as a member of ICE’s Board of Directors, had the authority to promote the change from TDMA technology to GSM technology, to vote in favor of a public tender and thereby permit Alcatel Costa Rica to participate, and to vote in favor of awarding the ‘abbreviated contract 1-2002 for the lease of the 400.000 GSM cellular lines’ to Alcatel.

And that is in fact what occurred. A second item of evidence supporting the finding that this ‘promise of a gratuity’ was in fact made is the statement of the cooperating accused (imputado colaborador), [Nombre026], to whom the Court’s majority afforded full credibility, as no reason whatsoever had yet been found to conclude that he came to lie at trial, as already indicated in earlier considerations; even though some differences might be found in comparison with the statements admitted into the trial by being read into the record, the fact remains that he consistently maintained the same account on the relevant points. Thus, he states that he did in fact meet with [Nombre015] and [Nombre035]. At that meeting, in his own words, the aforementioned persons offered him a reward if he helped them in three respects:

• 1)helping to bring about the migration to open technologies or GSM;
• 2)ensuring that the project or initiative to purchase materials and equipment for that expansion was carried out through a public competitive process or tender; and
• 3)voting in favor of the opinions of the technical bodies or departments in his capacity as an ICE director. One important fact that must not be overlooked is that, according to [Nombre026]’s testimony, at the beginning of that meeting the ‘offerors’ told him that they provided favors or rewards to people who helped them. [...] A third element to consider in finding the promise of a gratuity proven is the so-called ‘proposed course of action’ prepared by [Nombre058], a witness who, although he declined to testify at trial, does not thereby preclude the use of that document, since it was admitted into the trial by being read into the record. That proposal, which describes a basic course of action for addressing Alcatel’s problems with ICE, as already specified, encompasses, for example, the business sector, the Catholic Church, minority parties, and also the political sector. The document is very clear in noting that the support of at least three legislators, a presidential pre-candidate, members of the political leadership of Partido Liberación Nacional, and even private advice from a former president would be needed (evidence N° 686). This document undoubtedly demonstrates the urgency and need felt by Alcatel Costa Rica, in the person of co-accused [Nombre015], to exhaust all social and, above all, political avenues in order for ICE to accept its offer concerning GSM technology. Let us recall that company’s disagreement with ICE’s administrative procurement policies. The foregoing merely confirms what the prosecution’s indictment (acusación fiscal) already described: that co-accused [Nombre015] and [Nombre035] did in fact contact not only [Nombre026], but also [Nombre004] and [Nombre001], in order to promise them a gratuity in exchange for using their official duties to help Alcatel succeed….” Thus, [Nombre004]’s defense contends that the judgment relies on three fundamental elements to support its conclusion concerning the offer of a gratuity received by the former board member: [Nombre026]’s statement, the road map prepared by [Nombre058], and the allegedly adverse circumstances facing Alcatel’s interests. This Chamber finds that attorney Valenciano is correct in her assessment of the judgment’s reasoning and in her criticism thereof. In deciding the appeal on behalf of [Nombre001], it was already analyzed in great detail that this Chamber does not share the Trial Court majority’s view that the “road map” prepared by Mr. [Nombre058], as Alcatel’s political adviser, entailed the design of a criminal plan to corrupt public officials. Rather, it was the design of a strategic plan to build consensus regarding the need for decision-making on technological liberalization in the cellular field, which involved reaching various sectors and opinion leaders with the aim of fostering understanding of the technical issue and the technological advantages that such liberalization might bring. Alcatel may have felt that it was falling behind in its efforts to participate in Costa Rica’s cellular market, and it may also at some point have felt excluded from direct purchases already being made from ICE’s then-dominant suppliers: Lucent and Ericsson. However, being at a disadvantage did not necessarily mean that Alcatel decided to approach [Nombre004] to promise him a gratuity, specifically in exchange for assisting with the multinational company’s business objectives. Similarly, deriving certainty from [Nombre026]’s statements regarding [Nombre004]’s involvement in any corrupt criminal scheme is impossible, as already examined when deciding Mr. [Nombre012]’s appeal, for the reasons previously stated in analyzing [Nombre026] and his role in these proceedings. The defense attorney correctly points out that the same basis for attribution that might apply to [Nombre026] cannot be attributed to another ICE board member, such as [Nombre004]. [Nombre026] himself said that he did not know whether other ICE board members had received the same offer of a gratuity that he received. This argumentative proposition by the Trial Court cannot be endorsed by this Chamber and collapses under its own weight.

The Merits Court (Tribunal de Mérito) attempted to implicate [Nombre004] in the decision to award Alcatel the contract for the 400 thousand cellular lines, and traced his participation in the Board of Directors’ meetings where the matter was discussed, citing Extraordinary Session No. 5249 of 05 de diciembre de 2000 (folio 1395 of the judgment, Volume XXXII). However, the judges’ own quotation from that Session does not omit the reference to the existence of a proposed Comprehensive Telecommunications Plan that needed to be advanced, and to the need to request authorization from the Office of the Comptroller General to expand the exchanges and provide solutions using a GSM system. It was also noted there that the mobile telephony UEN justified the “technical suitability” of implementing 400 thousand cellular lines based on the existing fixed exchanges. As was seen during the examination of the appeal filed on behalf of [Nombre001], the process leading up to the decision to propose the 400 thousand lines under an expedited procedure (procedimiento abreviado) was not free of problems, difficulties, requests for information, and requests for technical studies.

The decision itself to opt for an expedited procedure was made not by ICE, but by the Office of the Comptroller General of the Republic. ICE preferred to continue pursuing direct purchases (compras directas). Neither the expedited procedure itself nor the core of the request for bids was specifically oriented toward Alcatel. The tender process (licitación) arose from the joint work of ICE authorities and suppliers, and was an intensive process aimed at obtaining the best offer that would enable ICE to meet existing demand and incorporate services of interest to Costa Rican users. All matters related to these arguments have already been discussed and analyzed above, but they are repeated here to highlight the weakness of the inferences drawn by the majority of the Court, as well as the alleged offer of a gratuity (dádiva) that [Nombre004] may have received to clear the way for Alcatel in an expedited procedure that, when the alleged gratuity was given, did not even exist as a realistic possibility.

According to the Court, there was a relationship of trust and friendship among [Nombre004], [Nombre015], and [Nombre035] (folio 1401, Volume XXXII); that close relationship explained its assumption that, between the end of 2000 and the beginning of 2001, he was promised a gratuity in exchange for promoting the migration from TDMA technology to the GSM technology supplied by Alcatel. Among the favors and indications of closeness, the judgment mentions the communications sent to Alcatel Chile requesting that [Nombre004] be assisted when he visited that country, and hotel reservations in Spain and France in March 1996 (folio 1402 of the judgment). Courtesies were extended to the defendant on other occasions, including payment for a trip to Spain in October 1999. The judgment interweaves this relationship between [Nombre004], [Nombre015], and Sapzisian, and then connects it to plans to favor the multinational corporation in its undertaking in Costa Rica.

For that reason, the Court links the payment of the sums of money to [Nombre004] with the performance of the tasks entrusted to him in connection with the 400 thousand cellular lines. However, as already explained in the case of [Nombre001], the plan to offer gratuities at a time when there was still no clarity regarding the path that would be followed—and when the path ultimately chosen was not entirely favorable to Alcatel, namely the expedited procedure, which provided it with no certainty whatsoever that it would prevail in the bidding process—deprives much of the Court’s line of reasoning of support. It is true that Alcatel ultimately prevailed, but as could be seen from the preceding decision-making process, this occurred precisely because it had met the bid requirements and Ericsson had been disqualified. The circumstantial evidence (indicios) constructed by the judgment in this regard is therefore meager and ambiguous, as defense counsel Valenciano argued.

This Chamber has already emphasized the need for the weighing of circumstantial evidence to yield a conclusion based on an overall analysis. Accordingly, the rules of logic and experience require that the circumstantial evidence rationally lead to the conclusion sought to be sustained. The three elements that the merits judgment seeks to use lack the solidity that the Trial Court attempts to attribute to them, and its conclusions cannot be upheld as grounds for a judgment of conviction. For this reason as well, the ground raised by the defense of [Nombre004] must be granted; and for these reasons, the judgment must also be vacated because there is no evidentiary support for the determination of the act attributed to the accused [Nombre004].

IX.THE APPEAL FILED BY DEFENSE COUNSEL NAZIRA MERAYO ARIAS AND WILSON FLORES FALLAS ON BEHALF OF THE ACCUSED [Nombre007] IS DECIDED.- 1. Regarding the offense of Unlawful Enrichment (Enriquecimiento Ilícito): Among the issues raised by attorneys Nazira Merayo Arias and Wilson Flores Fallas, representing Mr. [Nombre007], they expressed their disagreement with the judgment through various filings, the first being a “cassation appeal” (recurso de «casación») filed by defense counsel Flores on 27 de abril de 2011 (see Volume XXXVI, beginning at folio 171102), followed by an appeal through conversion (recurso de apelación por conversión). This Chamber proceeds to decide the grounds that, by themselves, entail the nullity of the judgment and the acquittal of the defendant of the offense of Unlawful Enrichment. First Section.- Defects that, by themselves, entail the nullity of everything decided.

A. Statute of limitations (Prescripción de la causa). In the first procedural ground of attorney Wilson Flores’s appeal and the first procedural ground raised by attorney Nazira Merayo, a violation of due process (debido proceso) is alleged on the basis that the case was time-barred. They state that the statute-of-limitations defense (excepción de prescripción) was raised at various stages and was rejected. The Trial Court’s stated reason for rejecting the statute-of-limitations defense rested on the declaration that the case was subject to complex-case proceedings (tramitación compleja), issued on 3 de marzo de 2006, with the judges finding that, by virtue thereof, the reduction of the limitations period could not apply, pursuant to the third paragraph of article 376 of the procedural legislation. As the defense explains, procedural acts are governed by the law in force when they occur and produce effects under that law.

Article 376 CPP would not grant the declaration of complex-case proceedings any possibility of applying its effects retroactively or of tolling the statute of limitations. Their claim is well-founded. The appellants mention that the legal classification given to the acts charged against [Nombre007] was reduced to the offense of unlawful enrichment, which, as of the date of the acts (10 de diciembre de 2001, article 346 subsection 3), provided: “A public official who, without committing an offense punishable by a more severe penalty: 3) Accepts gifts presented or offered to him in consideration of his office while he remains in office shall be punished by imprisonment of six months to two years.” Accordingly, co-defendant [Nombre007] is charged with 3 offenses of unlawful enrichment, in a real concurrence of offenses (concurso material), as provided in article 346 subsection 3 of the Criminal Code, punishable by imprisonment of 6 months to 2 years, for which the limitations period under article 31 of the Code of Criminal Procedure would be 3 years; when that period is reduced by half, it would be 18 months from the occurrence of any of the events tolling the statute of limitations.

Specifically, article 33 of the procedural law establishes that limitations periods shall be reduced by half in several circumstances; the one relevant here is when the investigatory statement (declaración indagatoria) has been given. In the case of Mr. [Nombre007], this took place at 14 hours 5 minutes on 7 de marzo de 2005 (Folio 1984). Therefore, a limitations period of 18 months must be calculated from that time until the Preliminary Hearing. The Preliminary Hearing was scheduled on 10 de septiembre de 2007, and therefore, by the time that proceeding was held, the case had already become time-barred as of 7 de setiembre de 2006. Nevertheless, the Trial Court found that the declaration of complex-case proceedings issued on 3 de marzo de 2006 had retroactive effect, affecting the defendant’s statement, which had commenced under the limitation rules for ordinary proceedings. This Chamber had already ruled against giving retroactive effect to the declaration that a case is subject to complex-case proceedings.

The reasoning supporting this conclusion has already been set forth in deciding the appeal filed by Dr. [Nombre012], to which reference is made to avoid unnecessary repetition. Accordingly, the case brought against [Nombre007] must be declared time-barred, and he must be acquitted of the offense of Unlawful Enrichment with which he had been charged.

B. Illegally obtained evidence (Prueba espuria). In the sixth procedural ground of attorney Wilson Flores’s appeal and also in the sixth procedural ground of attorney Nazira Merayo’s appeal, on behalf of defendant [Nombre007], they allege the admission of evidence obtained in violation of fundamental rights. The appellants state that the judgment violated due process by contravening the provisions of articles 24 of the Political Constitution, 175,176, 363 subsection b and 369 subsection d, both of the Code of Criminal Procedure, and 29 of the Law on the Search, Seizure, and Examination of Private Documents and the Interception of Communications, an infringement punishable by nullity. Regarding documentary evidence N° 588, which is a certified copy of the Judicial Assistance from the Republic of Panama, sent by means of communications PGR- 030-2004, dated 10 de septiembre de 2004, and N° 316-DN-TALM-04 of 6 de septiembre de 2004, consisting of 420 folios, the appellants state that the consent of Mr. [Nombre032], the legal representative of Marchwood Holding and holder of the account, was insufficient because the measure was carried out at the time without a judicial order, as required under Costa Rican law.

In this regard, based on certain considerations concerning the fundamental right to privacy derived from article 24 of the Constitution, which is itself a guarantee arising from international human rights law (article 11 subsection 2 of the American Convention on Human Rights, article 17 of the International Covenant on Civil and Political Rights), they argue that interference in citizens’ private sphere may be authorized only by law, under the conditions established therein, and that its application and interpretation must always be subject to judicial oversight. Consequently, consent such as that expressed by [Nombre032] would not permit dispensing with the guarantees arising from that constitutional right to privacy. Moreover, the action to which [Nombre032] consented affects the fundamental rights of other parties, and through it an item of evidence was obtained, along with information linking Servicios Notariales Q. C. S. A. to Cuscatlán International Bank, information concerning international transfers by Servicios Notariales Q. C. S. A. in favor of defendants in this case, and information concerning transfers by Alcatel Cit in favor of Servicios Notariales Q. C. S. A.; therefore, the resulting evidence, including evidence against [Nombre007], would likewise be unlawful, and they request that it be so declared.

Their claim is well-founded. The arguments for analyzing this legal issue have already been explained above when deciding the appeal filed by Dr. [Nombre012] (A-1). Accordingly, the same effects that this determination had for defendant [Nombre012] must be applied to defendant [Nombre007]: documentary evidence No. 588 and all evidence derived therefrom are declared null; the criminal conviction entered against [Nombre007] is declared null; and, in its place, he is hereby acquitted of all punishment and liability. The challenged judgment remains undisturbed insofar as it acquitted him of two offenses of Unlawful Enrichment.

B. Defects concerning the determination of the facts and the assessment of the evidence (valoración de la prueba) used to establish the circumstantial evidence (indicios) that led to the conviction for the offense of Unlawful Enrichment. 1) Regarding the elements of the objective and subjective statutory definition (tipicidad objetiva y subjetiva) of the offense of Unlawful Enrichment that must be included in the charging instrument (acusación), and the evidence that must be assessed for the attribution of criminal liability for the act to the defendant. In the first ground of attorney Wilson Flores’s appeal and in the fourth procedural ground of attorney Nazira Merayo’s appeal, an erroneous application of substantive law is alleged because the acts described in the charging instrument corresponding to facts 203, 208 and 210 do not describe the objective and subjective elements of the criminal offense of unlawful enrichment charged under article 346, subsection 3 of the Criminal Code. They argue that the judgment violates the principle of congruence between the charging instrument and the judgment (principio de correlación entre acusación y sentencia), as established in articles 363, subsection b), and 369, subsection h), both of the Code of Criminal Procedure.

According to attorney Wilson Flores, facts 199 through 211 present problems regarding the statutory description of the offense of unlawful enrichment. Their claim is well-founded. This Chamber has carefully read the facts attributed to defendant [Nombre007] and observes that he is indeed alleged to have been presented with various gifts consisting of money, which he accepted while remaining in his position as an ICE official in the Switching Department. Thus, fact 201 states:

“…201) Defendant [Nombre015] and suspect [Nombre035], as representatives of the company Alcatel, presented accused [Nombre007], in consideration of his office, with a gift consisting of money, which [Nombre007] accepted while remaining in the exercise of his position as a public official, specifically as Deputy Head of the Directorate of the I.C.E. Switching Department, a situation that resulted in his unlawful enrichment.” The Unlawful Enrichment alleged is based, as the Public Prosecution Service may have framed it in its charging instrument, first, on his having been the recipient of an offer of a gift, which is not a specific, distinguishing element of the offense charged, but rather of certain other criminal offenses, such as Bribery (Cohecho), for example. As argued by the defense, the charging instrument would need to include the distinguishing elements of Unlawful Enrichment each time it describes the act committed by the defendant on the various occasions when that criminal conduct may have occurred.

That is, each time a gift is offered, the corresponding acceptance must also be alleged. In short, for the criminal charges to be complete, they would have to be described in this manner each time a new act of Unlawful Enrichment is attributed to the defendant. Furthermore, the offense of Unlawful Enrichment requires the charging instrument to state that the presentation of the gift occurred in consideration of the office held by the person who is a public official, since the gift alone is already an objective element of the statutory definition of several offenses, such as passive bribery for an improper act (cohecho impropio), passive bribery for an unlawful act (cohecho propio), or the acceptance of gifts for a completed act (aceptación de dádivas por acto cumplido), for example. Consequently, the charged act and the potential criminal characterization (tipicidad) of the conduct that could derive from it are not stated with the required precision. This deficiency is again apparent in facts 203, 208 and 210:

“Without specifying a date, but after 10 de diciembre de 2001 and before 10 de enero de 2002, [Nombre015] and [Nombre035] presented defendant [Nombre007] with a gift consisting of investment certificates Nos. [Valor040], [Valor041], [Valor042] and [Valor043], all issued to bearer on 10 de diciembre de 2001, with a maturity date of 11 de enero de 2002, by Banco Cuscatlán de Costa Rica, each in the amount of ten thousand dollars ($10.000), for a total of fifty thousand dollars ($50.000), together with their interest coupons in the amount of one hundred eighty-two dollars and ninety-five cents ($182.95).” Fact 208 alleges:

“Without specifying a date, but between July 2, 2002 and August 5 of that same year, [Nombre015] and [Nombre035] presented defendant defendant [Nombre007] with a gift (dádiva) consisting of Banco Cuscatlán de Costa Rica bearer investment certificates N° [Valor044], [Valor045], [Valor046], in the respective amounts of ten thousand dollars ($10.000), five thousand dollars ($5.000), and five thousand dollars ($5.000), and their corresponding interest coupons totaling $53.17.” In fact 210, the following is charged:

“Without specifying a date, but between December 17, 2002 and January 21, 2003, the bribe-givers (corruptores) [Nombre015] and [Nombre035] presented defendant defendant [Nombre007] with a third gift consisting of Banco Cuscatlán de Costa Rica bearer investment certificates N° [Valor047], [Valor048], [Valor049] and [Valor050], each in the amount of ten thousand dollars ($10.000), for a total of forty thousand dollars ($40.000), and their respective interest coupons totaling $100.80., which was accepted by defendant [Nombre007], who disposed of it as follows:..”.

In this regard, counsel for accused [Nombre007] state that the foregoing description does not contain the requirements necessary to establish the objective and subjective statutory elements (tipicidad objetiva y subjetiva) of the alleged offense, and therefore the charged acts would potentially be noncriminal for failure to establish what conduct was attributed to the person on trial, or how and in what manner that conduct was carried out. On the one hand, bearing in mind that this is intentional conduct (conducta dolosa) in which the person presenting the gift does so in consideration of the office held by the official who receives and accepts it, it would be necessary to describe the circumstances in which this knowledge plays a role, beyond assuming that this element could be inferred from the position held by [Nombre007] at ICE. This second condition of the statutory offense (hecho típico) is also intentional and requires the perpetrator (sujeto activo) to know the reason motivating the presentation of the gift.

As correctly stated in Judge Camacho’s dissenting opinion (voto salvado), the offense of Unlawful Enrichment (Enriquecimiento Ilícito) may be committed through either of two alternative forms of conduct: i) acceptance of an offered gift and ii) acceptance of a presented gift. These are, indeed, two possible ways in which the act may satisfy the statutory elements, and they must be distinguished in order to clarify what is being attributed to the perpetrator, who is in fact a public official and is the recipient of these offers in consideration of that office. Accordingly, in defining the scope of the prohibition, the statutory offense would be committed by a perpetrator who takes physical possession of a gift placed before him by another person; but a perpetrator who agrees to receive in the future a gift that another person has undertaken to give him would also be punishable. As can be seen, the criminal offense is complex and requires proof of these alternative circumstances in order to establish the conditions of the alleged act.

Nevertheless, as Judge Camacho correctly notes in his dissenting opinion, these are two acts that do not have the same legal significance (cf. Judge Camacho’s Dissenting Opinion, folios 2013 to 2015). Receipt of the gift has different consequences under these alternative forms of prohibited conduct: where the offense is completed merely upon acceptance of the offered gift, proof that the gift itself was received is unnecessary, because completion (consumación) occurs upon “acceptance.” In the other case, the completion phase specifically requires proof that the gift was received. In this regard, the dissenting opinion sets forth the following considerations, which this Chamber endorses:

“Receipt of a gift following a previously accepted offer and acceptance of a presented gift do not have the same legal significance. In the first situation, it is an irrelevant act of exhaustion (agotamiento), whereas in the second situation it is the act that completes the offense. All elements of the offense (elementos del tipo penal) must be present at the time of completion. At the time of completion, the perpetrator must be a public official, the gift must be presented and offered to him in consideration of his office, and the official must also still be serving in that position at that time. In the case of the prohibited conduct of ‘acceptance of a presented gift,’ all the aforementioned statutory elements must be satisfied when the perpetrator takes possession of the gift. In the case of the prohibited conduct of ‘acceptance of an offer of a gift,’ all the statutory elements must be present when acceptance occurs, but they need not all still be present when the perpetrator takes physical possession of the gift, which, as we have seen, is an irrelevant act; by that time, he may have ceased to be a public official, and this would in no way affect whether the conduct satisfied the statutory elements at the time of completion (acceptance of the offer).

For the foregoing reason, it is essential to determine in each case the specific conduct carried out by the perpetrator in light of the offense of unlawful enrichment” (Dissenting Opinion of Judge Jorge Camacho, folio 2015).

In the case of the acts attributed to [Nombre007], we would therefore be faced with a charge based on an incomplete act that does not satisfy all the objective elements of the offense and leaves the subjective element of the act without substance, both as to the person offering and the person accepting the gift. It is understood, of course, that Unlawful Enrichment is a subsidiary criminal offense (figura penal subsidiaria) that comes into consideration when it is difficult or impossible to prove other offenses against the duties of public office; but in this specific case involving the criminal conduct attributed to [Nombre007], that subsidiary nature cannot be established, not only because the charge goes no further than the mere fact that the gift was offered, but also because it fails to establish with sufficient evidence the other statutory circumstances of the punishable act. Moreover, the charge leaves it to judicial construction to supply the requirements for bringing the punishable conduct within the offense, requirements that are absent from the prosecution’s theory and would have to arise from conjecture incompatible with the limits on judicial action imposed by Article 39 of the Constitución Política.

The defects in the charge preclude attributing criminal conduct to [Nombre007], regardless of how much evidence may be available regarding the amounts of money offered or received. The judgment convicting [Nombre007] of Unlawful Enrichment should therefore be vacated because the alternative objective and subjective statutory elements attributed to him were neither charged nor proven; accordingly, he should be acquitted of all punishment and liability for the reclassified offense of Unlawful Enrichment of which he was convicted. 2) Violation of the in dubio pro reo principle, because it is impossible to determine which gift the Court regarded as constituting an “acceptance of a presented gift,” which has specific defining elements that should have been charged and proven by the trial court. In the fourth procedural ground (motivo por la forma) of Attorney Wilson Flores’s appeal, a violation of the in dubio pro reo principle is alleged because, in addition to substantially modifying the charged acts, the court convicted the accused of Unlawful Enrichment involving payment of a gift divided into three installments (tractos)..

The argument raised entails a violation of the principle of consistency between the charge and the judgment (principio de correlación entre acusación y sentencia) and contravenes the provisions of Articles 9, 363 subsection b, and 369 subsection d, all of the Código Procesal Penal, a judicial action punishable by nullity (nulidad). According to the appellants, it cannot be determined with certainty which of the three gifts offered to the person on trial was offered in consideration of his office as a public official, that is, as Deputy Head of the Dirección del Departamento de Conmutación del Instituto Costarricense de Electricidad, while he was serving in that position. This is because, as explained in the preceding analysis, each acceptance of a gift would constitute an independent act, and clearly the act designated as 201 would not encompass the three gifts that Mr. [Nombre007] allegedly received.

The substantive position advanced in the appeals by Attorneys Flores and Merayo would entail accepting that, if any of the gifts described in fact 201 retains the material elements of the offense, the other two would not constitute an offense and the person on trial would have to be acquitted of committing them. The remaining conduct, if it does retain the required statutory elements, would present evidentiary problems that would make it impossible to determine which particular gift was received while the accused was a public official. In addition, there is considerable uncertainty because it is not known what kind of conduct Mr. [Nombre007] was expected to perform. A first hypothesis would be that he was expected to perform an act inherent to his duties. A second hypothesis would be that [Nombre007] was expected to omit an act inherent to his duties. If that were the case, under either hypothesis the offense applicable to [Nombre007]’s conduct would be an offense other than that set forth in Article 346, subsection 3).

The same would be true if the act expected of [Nombre007] was that he delay an act pertaining to his duties or perform one contrary to them. An additional hypothesis is also plausible: that the gift was intended as a reward for an act performed or omitted. Nor can it be ruled out that [Nombre007] might have been charged with abusing his office by compelling [Nombre015] or [Nombre035] to give or promise a gift. This latter situation would also correspond to a charge other than Unlawful Enrichment as such. The solution proposed by the majority opinion thus seeks to treat the unlawful enrichment as a single offer involving a gift paid in three installments. That circumstance was not included in the charge. The Ministerio Público charged three independent offenses without defining elements, and Considerando XII of the Judgment, concerning the “Description of defendant [Nombre007]’s conduct,” stated:

“190) Accused [Nombre015] and suspect [Nombre035], as representatives of the company Alcatel, presented defendant [Nombre007], in consideration of his office, with a gift consisting of money, which [Nombre007] accepted while he remained in office as a public official, specifically as Deputy Head of the Dirección del Departamento de Conmutación del I.C.E., thereby obtaining unlawful enrichment. That gift was paid in three installments.” This, without a doubt, transforms the charged act (hecho acusado), attempting to fit the circumstances of the gratuities (dádivas) and the absence of distinguishing elements for each of them so as to introduce an act that takes the defense by surprise, insofar as [Nombre007] is convicted for a gratuity payable in installments that he would receive for engaging in activities or omissions that are not specified, nor are the conditions that would explain payment in installments.

The latter is inconsistent with the circumstance accepted by the majority of the court, which convicted the defendant (justiciable) for the “acceptance of a proffered gratuity,” an act that is different and requires proof of different defining elements that have not been established, much less attributed to the defendant. It is true that the Court, applying the principle of favorability (principio de favorabilidad), chose to convict him of a single offense of Illicit Enrichment (Enriquecimiento Ilícito); nevertheless, the allegation of a single offer of a gratuity does not make it possible to determine which one is at issue, as explained in the preceding section, and could suggest the legal classification (tipicidad) of different criminal acts in which a gratuity is an element to be considered, as in the case of bribery for an unlawful act (cohecho propio), bribery for a lawful act (cohecho impropio), acceptance of gratuities for a completed act (aceptación de dádivas por acto cumplido), and the penalty imposed upon the bribe-giver (penalidad del corruptor).

Accordingly, for this reason as well, there would be no basis for convicting the accused (encartado), [Nombre007], and there would be sufficient grounds to declare the judgment null and void insofar as it finds the defendant criminally liable as the perpetrator of the offense of Illicit Enrichment through reclassification of the offense (recalificación).

• A)Regarding the award of personal costs (costas personales) imposed on the accused [Nombre007]. Attorney Wilson Flores alleges that the judgment is defective for lack of reasoning (falta de fundamentación) on this issue and thereby violates the provisions of Articles 142, 363 subsection b, and 369 subsection d of the Código Procesal Penal, a defect sanctioned by nullity. The fifth ground of the appeal filed by attorney Nazira Merayo makes the same argument. Their argument begins with the personal costs imposed on [Nombre007], without any evidentiary basis regarding his financial means. Regarding costs, the judgment states: “Given the proven financial solvency of the convicted persons [Nombre004], [Nombre001], [Nombre018], and [Nombre007], who chose to receive legal counsel from attorneys of the Defensa Pública del Poder Judicial, pursuant to Articles 152 of the Ley Orgánica del Poder Judicial and 265 of the Código Procesal Penal, each shall pay the fees of the professionals who assisted them during these proceedings.

This amount is set at TEN MILLION COLONES and covers their professional services from their entry of appearance through the issuance of this judgment, but not any appeals and other proceedings that may be required after its issuance. Each defendant shall pay that sum to the Poder Judicial within fifteen days from the date the judgment becomes final, with the consequent attachment and auction of their property in the event of noncompliance with this obligation.” In this regard, counsel argues that the judgment does not explain how it reached the conclusion that [Nombre007] was in fact financially solvent, leaving the ruling unsupported on this issue; although the defendant’s personal liberty is not affected, the judgment must contain sufficient reasons of its own regarding the impact on the defendant’s property. This claim must be sustained. Indeed, the judgment does not adequately state the reasons supporting the defendant’s financial circumstances or why he should pay for the legal services of the public defenders who represented him.

This issue, which is of great significance to the case, required detailed reasoning explaining why [Nombre007] must bear these costs of the proceedings against him. Accordingly, because the judgment lacks sufficient reasoning in this regard, it must be declared null and void as to costs.

B. Forfeiture (comiso) of the Suzuki Grand Vitara XL, license plate N° [Valor032]. As a consequence arising from the criminal offense, the defendant was ordered to forfeit a vehicle, specifically a Suzuki Grand Vitara XL, license plate No. [Valor032], although the judgment contains no reasonable finding that the vehicle was acquired with proceeds from the offense under investigation or was a direct product of the criminal activity undertaken. The appellants are correct regarding the forfeiture of this vehicle. The ruling on this issue is unsupported, which ordinarily would warrant its nullification and remand for further proceedings (reenvío); however, given the manner in which the other issues raised in relation to [Nombre007] have been resolved, remand is not appropriate. Instead, pursuant to the third paragraph of Article 465 of the Código Procesal Penal, this appellate court must correct the matter raised. It has not been established that the vehicle in question was acquired with funds derived from [Nombre007]’s alleged unlawful activity; the mere fact that the defendant held title to the vehicle is insufficient to establish that it was purchased with money derived from unlawful activities. Consequently, the ground for appeal must be sustained, the forfeiture must be declared null and void, and the vehicle must be returned to the person from whom it was seized (decomisado).

X.THE APPEAL FILED BY DEFENSE COUNSEL MARIO NAVARRO ON BEHALF OF DEFENDANT [Nombre009] IS DECIDED.- Attorney Mario Navarro filed a cassation appeal (recurso de casación) on behalf of his client, [Nombre009], but also, beginning at folio 172091 and concluding at folio 172271 of Volume XXXVIII, pursuant to Articles 39 and 41 of the Political Constitution; 1, 142, 184, 363, 367, 437, 438, 439, 447, 458, 459 and 460 of the Code of Criminal Procedure; and Transitory Provision III of Law No. 8837 Creating the Appeal from Judgment, and within the two-month period granted by the Third Chamber of the Supreme Court of Justice, he filed an APPEAL (RECURSO DE APELACIÓN) against judgment 167-2011, issued by the Criminal Court for Treasury and Public-Service Matters of the Second Judicial Circuit of San José at fifteen hours on April 27, 2011, which convicted his client of three offenses of Penalty for the Briber through Aggravated Corruption, in the form of improper bribery (cohecho impropio), and imposed a total sentence of 15 years’ imprisonment.

In this appeal, Attorney Mario Navarro Arias includes two new procedural grounds (motivos por la forma) concerning the alleged admission of unlawfully obtained evidence (prueba ilícita) in the judgment, as well as disagreement with the determination of the facts. He likewise adds a new ground challenging the cursory statement of reasons (fundamentación) for the sentence imposed on his client, as well as three grounds relating to the civil aspects of the judgment. Of the issues raised by Attorney Navarro on behalf of the party subject to adjudication, this Chamber proceeds to decide the grounds that, standing alone, entail the nullity of the judgment and the acquittal of Mr. [Nombre009] on three offenses of Penalty for the Briber through Aggravated Corruption, in the form of improper bribery. First Section.- Defects that, standing alone, entail the nullity of everything decided. A. Tainted evidence (prueba espuria).

In the first procedural ground of Attorney Mario Navarro’s appeal on behalf of [Nombre009], he alleges the admission of unlawfully obtained evidence and the resulting violation of due process (debido proceso). He states that the defense has repeatedly asserted the unlawfulness of documentary evidence number 588, which is a certified copy of the Judicial Assistance from the Republic of Panama, transmitted through notes PGR-030-2004 dated September 10, 2004, and 316-DN-TALM-04 dated September 2004, consisting of 420 folios. This evidence, which contains banking information concerning the Panamanian company Marchwood Holding, would be defective for several reasons: 1. It was brought into the proceedings at the request of the Public Prosecution Service and without a prior court order. 2. The banking documentation was obtained from the so-called “CAJA-Fischel” case, expediente No. 04-005356-0042-PE), in which, because bank secrecy (secreto bancario) had not been lifted, the Third Chamber of the Supreme Court of Justice, by decision number 2011-00499 at 11:45 hrs. on May 11, 2011, by majority vote granted the appeal filed by the defense, declaring null and void the evidence gathered in Panama and all evidentiary materials derived from it. 3.

Because the chain of custody (cadena de la prueba) was breached when the contents of that evidence were leaked to the press long before the parties participating in the proceedings became aware of it, to such an extent that the newspaper “La Nación” of September 8, 2004, appearing at folios 2 and 3 of Volume I, informed the public of its contents. Similarly, and for greater clarity, he refers to alleged fact number 190, in which the Public Prosecution Service expressly alludes to the report broadcast on “Telenoticias” during the first days of September 2004, stating that the evidence gathered in Panama revealed that the company Servicios Notariales Q.C. had deposited large sums of money into the account of Marchwood Holding Company. Regarding the alleged unlawfulness of evidence 588, he considers that the lifting of bank secrecy was not ordered by a competent judge and, consequently, that there was also no reasoned decision assessing that measure before it was carried out.

The Trial Court rejected the claim of defective procedural activity (actividad procesal defectuosa) raised by the defense, stating that an order lifting bank secrecy was unnecessary because [Nombre032] himself, a co-defendant in the Caja-Fischel proceedings and a witness in the case at bar (subjudice), had consented to the gathering of that evidence. The appellant believes that the authorization given by [Nombre032] would extend to the portions of that evidence affecting his own interests, but that under no circumstances could he authorize the impairment of the fundamental rights of the remaining defendants. As Attorney Navarro analyzes it, Law No. 7425, Law on the Search and Seizure of Private Documents and the Interception of Communications, clearly establishes in Article 29 that “There shall be no unlawful intrusion when the holder of the right gives express consent. If there are several holders, the express consent of all shall be required.” Furthermore, even if [Nombre032] were hypothetically entitled to give such consent, it is clear, in his view, that such consent had to be given beforehand rather than afterward.

In support of his position, he cites the legal scholarship of Prof. Francisco Castillo in his text “Derecho Penal. Parte General, p. 366, itself cited by the dissenting opinion. Also relying on Voto 111-1993 of the Third Chamber, at 8:40 hrs. on March 26, 1993 (which contains scholarly references to Bacigalupo, who also refers to Schmidthäuser), he insists that consent must precede the injury to the legally protected interest (bien jurídico). Based on this doctrinal assertion, he states that the evidence alleged to be unlawful was obtained in September 2004, and it was not until May 2010, according to document no. 759, that Mr. [Nombre032] “ratified,” through his consent, the acquisition of the evidence unlawfully obtained in Panama. That consent, therefore, cannot conceal the constitutional injury committed with respect to the rights of the other co-defendants. If the consent of all affected persons had not been obtained, an express order should have been requested from a competent judge authorizing the lifting of bank secrecy; this clearly did not occur, hence the improper conduct of the Public Prosecution Service.

Evidence 588 made it possible to detect the existence of Servicios Notariales Q.C. S.A., as is apparent from alleged fact number 190, and, on that basis, to request the lifting of bank secrecy in relation to that corporation, as is apparent from documentary evidence numbers 86, 87, 90 and 91, identified by the Public Prosecution Service in its indictment (acusación fiscal) and used as an essential basis for rendering the judgment. Both the application and the orders lifting bank secrecy would, as the appellant argues, lack evidentiary validity. The same applies to the evidence obtained through Banco Cuscatlán, as well as all evidence connected with documentary evidence number 588 and relating to Servicios Notariales QC S.A. Regarding the issue of unlawfully obtained evidence and the problems it presents, he cited several judicial precedents from the Third Chamber and the Constitutional Chamber, which emphasize the need to ascertain the substantive truth (verdad real) through a fair trial based on lawfully obtained evidence, to be assessed by the judges.

He also reviews the Third Chamber’s position regarding the banking evidence obtained in the Caja-Fischel case and concludes that this constitutes an absolute defect (defecto absoluto) that was disregarded by the authorities involved in the case known as Caja-Fischel. He therefore considers inadmissible the direct request made by the Costa Rican Public Prosecution Service to the Office of the Attorney General of the Republic for the evidence to be obtained without the involvement of the Guarantees Judge (Juez de Garantías). In that regard, he considered the emphasis placed by Costa Rica’s legal system on entrusting the final decision to a judge when citizens’ fundamental rights are at stake, particularly when the right to privacy, the secrecy of communications, or the inviolability of private documents is to be affected. In accordance with ordinary legislation, the Chamber emphasized the need to verify that the order was reasoned and that it specifically identified the documents to which the order would apply, the name of the person possessing them, and the place where they were located.

As to the criminal activity, it would be essential to assess the substantiated indication (indicio comprobado) that the act had been committed and to weigh the elements of the principle of proportionality. The request, as formalized by the Costa Rican Public Prosecution Service, failed to satisfy a requirement that was not a mere formality but a fundamental element permitting intrusion into a person’s private sphere under domestic law. The Chamber includes a list of several legal provisions that would require such judicial intervention. These include Articles 24 of the Political Constitution; 12 of the Universal Declaration of Human Rights; and 17 of the International Covenant on Civil and Political Rights, principles and rights embodied in Articles 2 and 3 of the Law on the Search, Seizure, and Examination of Private Documents and the Interception of Communications, and Article 107 of the Organic Law of the Judiciary.

This means, the Chamber states, that Articles 226 and 290, final paragraph, of the Code of Criminal Procedure establish the possibility that the Public Prosecution Service may request reports from private individuals or public entities, as stipulated, provided that the information is not private information protected by Article 24 of the Constitution; otherwise, under the second paragraph of Article 181 of the Code of Criminal Procedure, the right to the inviolability of private documents would be violated. It insists that the Treaty on Mutual Legal Assistance is an instrument for strengthening and facilitating cooperation among judicial bodies in the region, but that such cooperation must be carried out with full respect for the domestic legislation of the member countries. The streamlining of procedures, the Third Chamber’s decision maintains, cannot become a means of fostering arbitrariness, overreach, or disregard for constitutional guarantees and the domestic legal order in force.

It states that the objective cannot be to secure a conviction at all costs, but rather a conviction resulting from the proper introduction of evidence into the proceedings in accordance with the Constitution and the law in force in the country and, in its assessment, in strict adherence to the rules of sound judicial reasoning (sana crítica). Finally, after making several evaluative and doctrinal observations, it considers that the Assistance Treaty does not take precedence over the Political Constitution. Therefore, the evidentiary materials brought into the criminal proceedings against [Nombre032] and the other co-defendants through letters rogatory (cartas rogatorias) to Panama and the supplements thereto, without observance of the constitutional and statutory guarantees governing requests for their acquisition under Costa Rican domestic law, constitute tainted evidence unlawfully admitted into the proceedings.

Through the assertion of an absolute defective procedural activity, that evidence is declared ineffective, as are the other evidentiary materials directly derived from it, specifically: the documentary evidence obtained through the Letters Rogatory to Panama and the supplements thereto; the investigatory statement (declaración indagatoria) of [Nombre032], insofar as it is based on the Panama evidence; among other relevant considerations.

The appellant requests that the ground of appeal (motivo de apelación) be upheld and that the evidence obtained in Panamá through the Treaty on Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panamá, as well as all evidence directly dependent thereon, be declared null and ineffective; and, consequently, because the accusation lacks an evidentiary basis, that his client, [Nombre009], be acquitted of all punishment and liability for the acts attributed to him and that his immediate release be ordered, given that it is unnecessary to remand the proceedings for a new trial under the terms established in the law governing appeals from judgments. His claim is well-founded. The arguments for analyzing this legal issue have already been set forth above, when ruling on the appeal filed by Dr. [Nombre012] (A-1). Accordingly, the same effects that this determination had for defendant [Nombre012] must be applied to defendant [Nombre009]: documentary evidence No. 588 and all evidence dependent thereon are declared null; the criminal conviction entered against [Nombre009] is vacated; and, in its place, he is directly acquitted of all punishment and liability.

B. Defects concerning the determination of the facts and the assessment of the evidence used to establish the circumstantial evidence (indicios) that led to the conviction for three offenses of Penalty for the Corruptor for Aggravated Corruption, in the form of Improper Bribery. 1. Violation of the principle governing the assessment of evidence and the rules of sound judicial reasoning (sana crítica), based on the weight given to [Nombre026]’s statement concerning the promise that payment would be made through accounts belonging to Servicios Notariales Q.C. S.A. Attorney Navarro raised this argument both in the cassation appeal (recurso de casación) and in the converted appeal (apelación por conversión). In the seventh ground alleging procedural error, he challenges the majority opinion’s finding that there was a prior plan in which [Nombre009] participated, based on [Nombre026]’s account, because, according to the judgment, the latter stated that he knew from the outset that the promise would be fulfilled through payments or transfers from the accounts of Servicios Notariales QC S.A. He refers to the defense’s questioning of [Nombre026] regarding his acquaintance with [Nombre009] and how he became interested in that corporation.

On this subject, he states the following in his brief: “…When [Nombre026] was testifying, this defense counsel asked him whether he knew [Nombre009]. [Nombre026] answered affirmatively and added that he had met my client in the 1990s, at a meeting of the Unidad Social Cristina party, as it appeared that both were members of that political party. When [Nombre009]’s defense confronted [Nombre026] regarding the acts under investigation and the date on which they occurred, he answered that NO, THAT IN CONNECTION WITH THESE ACTS HE NEVER HAD ANY CONTACT WITH [Nombre009]. He added, in summary, that, KNOWING THAT THE MONEY TRANSFERS CAME FROM A BANK ACCOUNT IN THE NAME OF SNQC, he undertook to investigate who was behind that account, and that was how HE CAME TO REALIZE, LEARN, ASCERTAIN, BECOME AWARE, AND DISCOVER THAT THE PERSON MANAGING THAT ACCOUNT was my client, [Nombre009]. But he never said, asserted, or indicated that BEFORE THE MONEY TRANSFERS or the delivery of the certificates of deposit, he knew that he would be paid through SNQC, as the Court erroneously states, thereby violating the rules of sound judicial reasoning, particularly the principles of sufficient reason and logical derivation in the assessment of the evidence.

Because this circumstance is a fundamental pillar for attributing to my client participation in a prior plan to commit offenses, the judgment plainly contains an incurable defect…”. He also rejects the court’s theory, adding that there is likewise no evidence connecting his client with [Nombre004] or [Nombre001], in the sense that he met with them, spoke with them, or otherwise interacted with them. There was no contact among them, much less before the 400 thousand cellular-line project arose, before the Comptroller General granted its endorsement, or even before the contract between Alcatel and ICE was executed. He considers that the judicial conclusion violates the rules of sound judicial reasoning, not only because there is no evidence suggesting that his client may have acted within that prior plan allegedly known to him, but also because the remaining circumstantial evidence relied upon by the court is ambiguous in this regard, such as, for example, the family relationship between [Nombre009] and [Nombre015].

Accordingly, he suggests that if the Court’s false assertion—namely, THAT [Nombre026] STATED THAT FROM THE OUTSET HE KNEW HE WOULD BE PAID THROUGH SNQC—is hypothetically disregarded, it is impossible to uphold his client’s conviction as a participant in a prior plan established to commit the offenses of Aggravated Improper Bribery. He therefore suggests that, if his position is accepted, the proper course, pursuant to the principle of procedural economy (economía procesal), that is, the provision of section 9 of the Code of Criminal Procedure, namely the in-doubt-for-the-accused principle (in dubio pro reo), is to adopt the interpretation most favorable to his client: that he merely delivered the funds without participating in the prior plan. If that is so, then his conduct does not constitute an offense because it does not amount to the criminal conduct alleged against him or, at most, constitutes acts of material assistance after the fact, with whatever consequences this Chamber may decide to assign to them.

In the alternative, he requests a remand for a new trial after the judgment in its entirety and the trial proceedings are declared ineffective. His claim is well-founded. This Chamber has listened carefully to [Nombre026]’s testimony and observes that, in fact, he did not state that he knew [Nombre009] would manage the funds he was to receive as payment of the gifts promised to him, as the trial court erroneously found in its judgment. Furthermore, as has already been stated in connection with the analysis of [Nombre026]’s testimony regarding Dr. [Nombre012], the statement of this “cooperating defendant” (imputado colaborador) is unreliable and should have been subjected to a critical analysis of its implications, not only because of the constant variations in his account of what occurred, but also because of the material changes he made to the facts. This Chamber has already found his testimony unreliable, not only because of the various accounts he provided of the events, but also because it is certain that his testimony was self-serving and intended to secure impunity; this should have imposed upon the majority an even stricter duty to be skeptical and to subject to solid and thorough scrutiny all independent evidence that confirmed or corroborated that [Nombre009] was, in fact, part of a prior plan to corrupt ICE public officials.

At folio 1130 et seq., the judgment states that [Nombre015], [Nombre035], [Nombre009], and [Nombre018] had devised a prior plan to channel funds from Alcatel CIT by leading its representatives to believe that those funds were intended to pay for consulting services contracted with Servicios Notariales Q.C. S.A. and Intelmar S.A. The majority opinion identifies Mr. [Nombre009] as a key figure in the payment of the gifts, by virtue of his connection to Servicios Notariales Q.C. S.A. and his professional and blood relationships with representatives of that corporation, even though he was not the legal representative of that legal entity. The judgment identifies him, by August 2001 (folio 1142), as Vice President of the corporation and therefore as involved in the payments made from that date onward. Specifically, at the time when his wife, Ms. [Nombre074], a teacher by profession, owned the share capital of Servicios Notariales QC S.A., she was plainly a person with no connection to the legal entity’s line of business and was therefore merely a nominal representative of the corporation. [Nombre009] is also linked to [Nombre015], because [Nombre015]’s wife is [Nombre009]’s sister (folio 1143 of the judgment).

For that reason, the judgment places [Nombre009] in charge of the corporation’s activities by September 2001; indeed, it identifies him as giving instructions to the Private Banking Department, while Ms. [Nombre074] served merely as a nominee (testaferro) with little control over the activities conducted. This Chamber therefore finds that, together with [Nombre026]’s testimony, all these circumstances were decisive in placing [Nombre009] at the center of the operational plans to corrupt public officials, making him a key figure in delivering the payments to the dishonest officials. However, there is no evidence that [Nombre009] participated directly in that common plan, beyond continuing the consulting activities that the corporation had already provided to Alcatel since 1990. Those consulting activities also encompassed the management of funds, which of course included the payments made during the period in which this corporation’s involvement in paying gifts was investigated, but also included other company contracts and activities that have not been alleged to be unlawful.

The judgment characterizes these consulting contracts as a mechanism for concealing the true reason why these funds were received, but the fact remains that those contracts were signed in early 2001 (fact 55 of the accusation), close in time to the alleged conception of the corrupt scheme. Nevertheless, this was a continuation of an activity already being performed for Alcatel, and the judgment does not explain why the continuation of that line of business—which already involved managing millions of dollars belonging to Alcatel—could not have entailed receiving instructions, detached from the overall corrupt scheme, to perform consulting contracts that appeared to be a normal Alcatel practice, as several Alcatel employee witnesses, including Ms. [Nombre075], indicated at trial. In any event, the judgment does not persuasively refute the alternative theory now offered by the defense: that [Nombre009]’s activities were detached from the corrupt scheme and might, at most, have constituted material assistance after the fact, which was not charged.

Given the lack of reasoning on this point, and because the finding of a common corrupt scheme rests on nothing more than an overall view constructed by the majority and is unsupported by the evidence assessed—most specifically [Nombre026]’s testimony—the in-doubt-for-the-accused principle must be applied, and [Nombre009] must be acquitted of all punishment and liability for the three alleged offenses of Penalty for the Corruptor for Aggravated Corruption, in the form of Improper Bribery. 2. Exclusion of evidence important to the legal defense of defendant [Nombre009]. In the eighth ground alleging procedural error in the cassation appeal and the tenth ground of the appeal filed by Attorney Mario Navarro on behalf of [Nombre009], he alleges a VIOLATION OF DUE PROCESS AND THE RIGHT TO A DEFENSE DUE TO THE EXCLUSION OF EVIDENCE IMPORTANT TO THE DEFENSE.

He argues that during the trial proceedings (debate), Alcatel and the Government of the United States of America, specifically the United States District Court for the Southern District of Florida, in case 1:10:CV=24620,DLG, in which the Securities and Exchange Commission was the plaintiff and Alcatel Lucent S. A. the defendant, negotiated an agreement stating that, from December 2001 through October 2004, agents and/or subsidiaries of Alcatel S. A. violated the Foreign Corrupt Practices Act of 1977 and paid at least seven million dollars in bribes to Costa Rican government officials to obtain or retain three telephone-service contracts in Costa Rica worth approximately three hundred three million dollars. That agreement between the Government and the company was brought to the parties’ attention by the Instituto Costarricense de Electricidad in January two thousand eleven, after the holiday recess.

Defense counsel states that this evidence (prueba) was crucial to the legal positions that had been maintained regarding [Nombre009]. First, because it exposed Alcatel as a company linked to corrupt practices intended to secure and retain public contracts in the telecommunications sector. Second, it placed Alcatel’s activities connected with the events under investigation between early two thousand one and October two thousand four. Third—and this is an argument repeated throughout the appeal (recurso de apelación)—the amounts received by Servicios Notariales QC S.A. came not only from the contract for the 400 thousand lines, but also from other lawful contracts unrelated to the “400K” contract. He states that this settlement document between Alcatel and the United States Government demonstrates what the defense maintained at trial. He asserts that the other defense attorneys opposed the admission of this document, except for counsel for [Nombre009].

The Court, however, rejected it as untimely and because it had not been translated. The representatives of ICE later attempted to introduce it after it had been translated; nevertheless, the Court rejected it as untimely. Finally, he considers that this evidence supports the defense theory presented at trial, undermines the account given by [Nombre075], who defended Alcatel at all times, and was essential evidence underlying his client’s conviction. In short, according to the appellant (recurrente), that evidence would cast doubt on the factual background of the judgment, and it could no longer be maintained that “…SNQC had received more than fourteen million dollars for processing the four hundred thousand cellular lines and paying bribes in connection with that contract…” Therefore, because of the alleged violations of due process (debido proceso) and the right of defense (derecho de defensa) resulting from the rejection of crucial evidence, he requests that the entire judgment be declared invalid and that a retrial on remand (juicio de reenvío) be ordered.

He considers that the alleged defect was an absolute defect (vicio absoluto) and did not require a prior objection. The matter raised by the defense is indeed an absolute defect and must be declared as such because of the violations it entails of the right to a defense at trial and due process. The evidence mentioned is indeed important in challenging the characterization of Alcatel as a company deceived by its representatives, rather than as a multinational conglomerate that employed corrupt mechanisms to achieve its business objectives. The settlement with the United States Government was relevant both to establishing the facts concerning the involvement of Servicios Notariales QC S.A. and the handling of funds during the period of the events under investigation, and to determining whether the factual account advanced by the defense was sound. Specifically, the defense maintained that there were lawful contracts that had been processed previously and were justified by the representation, advisory, consulting, and administrative activities that this corporation (sociedad anónima) performed for Alcatel.

This raised highly relevant matters for discussion that should have been analyzed in detail in the judgment at issue. The failure to admit this duly translated, previously unavailable supplementary evidence (prueba para mejor proveer)—which arose at a stage of the proceedings beyond the parties’ control—affected the interests of the defense, and the trial court (tribunal de mérito) should have admitted it. For this reason as well, the judgment of conviction concerning [Nombre009] must be vacated. 3. Erroneous Application of Substantive Law. Violation of the Principle of Legality. In the twelfth ground of appeal presented by attorney Mario Navarro, he alleges an incorrect application of substantive law concerning the alleged criminal conduct of [Nombre009] in relation to co-defendant (coimputado) [Nombre001]. He begins his argument by transcribing findings of fact numbers 128,129, 130 and 131.

“128) The accused ([Nombre001]) began working for I.C.E. at the end of 2000 as Executive Assistant for Senior Administration in the Executive Presidency, an appointment that was formalized as of 01 de enero de 2001.

129) His duties included handling specific matters for the Executive Presidency, such as analyzing documents submitted for the Executive President’s review and approval; providing advice and recommendations regarding them; coordinating with the Institute’s various departments on matters related to the implementation of projects and directives; coordinating and participating in the special committees that were formed; assisting in the development and implementation of programs and projects promoted by the Presidency; and representing I.C.E before various governmental and nongovernmental bodies connected with the fields of electricity and telecommunications. Among the projects under his responsibility, the expedited procedure (proceso abreviado) 1-2002 for leasing the 400.000 GSM cellular lines was particularly noteworthy.

130) From the time he joined the institution, the defendant ([Nombre001]), as assistant to the Executive Presidency, became responsible for expediting matters related to telecommunications. Subsequently, the defendant [Nombre001] was appointed to chair a high-level committee comprising an interdisciplinary group of professionals responsible for studying and implementing the project for the 400.000 thousand lines, together with [Nombre027], a member of the Board of Directors, and officials [Nombre061], manager of the Mobile Services UEN, and [Nombre052], in his capacity as Executive President.

131) On an unspecified date, but during the period between the end of 2000 and the beginning of 2001, the defendants ([encartados]) [Nombre015] and [Nombre035] asked the defendant [Nombre001] to take the necessary actions within the scope of his duties as an adviser to the Executive Presidency of I.C.E. and the person responsible for implementing the 400.000-line project, in order to carry out that procurement in Alcatel’s favor; in exchange, [Nombre035] and [Nombre015] promised [Nombre001] a monetary bribe (dádiva), the exact amount of which was not determined at that time. The defendant [Nombre001] accepted that promise, and it was also agreed that delivery would be contingent upon the actual award to Alcatel of the bid it would submit to I.C.E.

132) Because the defendant [Nombre001] carried out the agreed actions, once he succeeded, together with other I.C.E. officials, in having the competitive process opened for the purchase of cellular telephony and the contract for the 400.000 GSM lines awarded to Alcatel, in accordance with what had previously been agreed with the defendant [Nombre015] and the suspect ([indiciado]) [Nombre035], he received the promised bribe, corresponding to a percentage of the contract Alcatel obtained with I.C.E., payment of which was made in installments through the intermediation of co-defendant ([coencartado]) [Nombre009], using money originating from Alcatel Cit.” It is on the basis of these facts, which have been deemed proven, that [Nombre009] is charged with committing the offense of punishment of the bribe-giver (penalidad del corruptor) for aggravated corruption (corrupción agravada), in the form of improper bribery (cohecho impropio), in relation to [Nombre001].

As was already analyzed when considering the appeals on behalf of [Nombre001], it is not known with certainty what alleged actions [Nombre001] was asked to undertake in order to achieve Alcatel’s objectives concerning the contract for the 400 thousand cellular lines; therefore, [Nombre009]’s criminal participation in the act charged against [Nombre001] is, at the very least, uncertain and improbable.

This ground must be upheld. As was analyzed at length when considering that appeal on behalf of [Nombre001], the award procedure was transparent and lawful, and [Nombre001]’s involvement, given his area of experience and expertise, did not concern the technical and legal aspects that could ultimately affect the award of the 400 thousand lines to Alcatel. In fact, and as this Chamber previously analyzed, it is not known what role [Nombre001] was expected to play in ICE’s internal decision-making procedure, nor with respect to the form and content of an expedited procedure that, in essence, was neither favorable to nor provided certainty for Alcatel. In terms of certainty regarding its participation, the direct-purchase procedure (procedimiento de compras directas) was more advantageous to that company. [Nombre001] was responsible for coordination duties that were unrelated to the direct-purchase process, and, as observed in the sequence of decisions by the ICE Board of Directors, the path toward an expedited procedure was determined by the Office of the Comptroller General of the Republic (Contraloría General de la República), not by ICE.

[Nombre001]’s admission that he received money from Alcatel likewise does not make it possible to determine whether those sums were instead delivered as payment for a specific act within his official duties. The uncertainty in this regard opens up numerous possibilities for criminal classification (tipicidad penal), ranging from receiving bribes for a completed act to Unlawful Enrichment (Enriquecimiento Ilícito) itself, but not necessarily improper bribery. According to the appellant’s interpretation, the trial court did not clearly, precisely, and specifically identify the particular act requested of [Nombre001].

If this is so, and the act has not been specified, there would also be doubt as to whether [Nombre009] was responsible for the offense of punishment of the bribe-giver, since both acts are closely related; accordingly, for this reason he must be acquitted of all punishment and liability for the acts attributed to him in relation to [Nombre009]. 4. Forfeiture (comiso) of various properties in favor of the State. In the third procedural ground (motivo por la forma) of the cassation appeal (recurso de casación) filed by attorney Mario Navarro on behalf of defendant [Nombre009], he alleges ERRONEOUS AND INADEQUATE REASONING. VIOLATION OF DUE PROCESS AND THE RIGHT OF DEFENSE DUE TO THE ERRONEOUS APPLICATION OF ARTICLE 110 OF THE CRIMINAL CODE. The judgment orders the forfeiture of the following properties:

A.4) Heredia district, registered under the Real Property Folio system (sistema de Folio Real), Property Registration No. [Valor025], Subregistration [Valor018], in the name of Punto de Negocios LQC Sociedad Anónima. A corporation belonging to defendant [Nombre009], who proceeded to fund it with illicit money originating from Alcatel Cit and used that money to conduct various banking transactions and business dealings of different kinds, such as purchasing the property described.

• 4)[Nombre009]’s shares in La Selva de La Marina S.A., which owns, among other properties, the real estate registered in the Public Registry under the Real Property Folio system as Property Registration No. [Valor030], Subregistration [Valor018], and Property Registration No. [Valor031], Subregistration [Valor018]. Real property acquired with illicit money originating from Alcatel Cit.

According to the appellant, the trial court failed to state reasons and explain why it considered these assets to have originated from the illicit activity allegedly attributed to the person standing trial (justiciable). In short, the causal nexus between the commission of the act and the assets subject to forfeiture was not established. Likewise, there must be certainty that no third party or the defendant himself holds rights in those assets. According to the challenger (impugnante), the economic studies conducted show that other persons may have rights in the aforementioned assets:

“…According to section 4.4 of Expert Report (informe Pericial) No. 202-DEF-445-05/06 (Evidence No. 619), Punto de Negocios LQC S.A. was incorporated on 08 de abril de 2002 by defendant [Nombre009] and [Nombre076], before Notary [Nombre077]. Its share capital was established in the amount of one million colones, represented by one hundred common registered shares of ten thousand colones each, of which [Nombre009] subscribed 99 shares and shareholder [Nombre076] subscribed one share. According to the notarized certification dated 14:00 horas del 27 de enero de 2003, [Nombre009] holds the office of President, with authority to represent Punto de Negocios LQC, S.A. judicially and extrajudicially. The corporation is registered in the Commercial Section of the Public Registry at folio 196 of volume 1497, entry 98. See annex 13 of report 202, folio 170.

And in section 4.3.1 of the same report, the experts from the Economic and Financial Crimes Section state that it was verified that Sociedad Selva de La Marina, legal entity identification No. 3-101- 345347, was incorporated on 5 de mayo de 2003 by [Nombre078] and [Nombre079] before the Notary’s Office of [Nombre077]. Its share capital was established in the amount of 50.000.000.00 million colones, represented by 50.000 shares of one thousand colones each, of which Mr. [Nombre078] subscribed 4 9.999 shares of one thousand colones each and [Nombre079] subscribed one share of one thousand colones.

It is readily apparent from the evidence admitted into the adversarial proceedings (contradictorio) that the assets whose forfeiture the Court is ordering are duly registered in the names of corporations in which, apart from my client, there are other ‘shareholders’ with interests. Case law and legal scholarship have established that a court ordering forfeiture must be ‘very cautious and vigilant when making such a decision’ so as not to impair the rights and guarantees not only of the accused but also of third parties unrelated to the proceedings. They have likewise established that, ‘in order not to impair the rights of all persons who have no connection whatsoever with the unlawful act,’ mere probability or presumption is insufficient; instead, ‘absolute certainty is required so as not to violate the principles underlying due process, including the principles of legality, innocence, defense, fair trial, culpability, etc.,’ as held by the Third Chamber of the Supreme Court of Justice in judgment 865-97 of 10 horas 20 minutos del 22 de algosto de 1997…” In support of his argument, he cites a precedent of the Court of Cassation, Judgment No. 00377 of 13:45 hours on November 16, 2010, which holds that it is necessary to establish the causal link between the property subject to forfeiture (comiso) and the commission of the criminal offense.

He believes that the Third Chamber of the Supreme Court of Justice ruled to the same effect in its Judgment No. 00121 of 2010, after discussing forfeiture and its legal nature, holding that such an order requires sound reasoning pursuant to Articles 142, 143, 363(b), and 369(d) of the Code of Criminal Procedure. He emphasizes that the judgment under review contains no such sound reasoning; it does not show the rationale followed by the Court in ordering forfeiture, which so greatly affects the interests of the defendant as well as those of third parties, whose existence the judgment itself acknowledges. This ground must be upheld. The Court does not explain the connection between the property it orders forfeited and [Nombre009]’s unlawful activity, nor whether third parties held rights in that property. Nor is there any certainty that those properties were acquired with Alcatel funds or whether they were acquired using other assets derived from the defendant’s professional activities or business.

This is because the source or origin of the acquisition of these real properties and assets generally may be independent of the sources investigated in this case. There is evidence suggesting that a relationship existed between Alcatel CIT and Servicios Notariales QC S.A. beginning in 1997, arising from contractual consulting activities that have not been challenged. The sources used to acquire those assets could therefore have been part of lawful activities conducted in years preceding the period investigated in this case. In other words, in order to order forfeiture, the judgment should contain adequate reasoning demonstrating that the funds used to acquire these assets came from the corrupt activity that the majority opinion attributes to Alcatel and that allegedly arose from the criminal scheme carried out by [Nombre015] and [Nombre035]. Likewise, it must be demonstrated that all or part of the flow of funds constitutes proceeds of crime and, if so, whether those financial flows were used to purchase the assets now being forfeited.

It must also be shown that such an order does not affect the rights of persons having no connection with the unlawful activity. In this regard, the appellant correctly notes that funds were transferred into the assets of Bufete Valerio Casafont, and those transfers were not classified as unlawful and originated from Servicios Notariales QC S.A. In other words, the payments made to that law firm should therefore be deemed a lawful activity funded by the monies that Servicios Notariales QC administered for Alcatel CIT. Furthermore, citing Article 110 of the Criminal Code does not constitute sufficient reasoning for forfeiture of such magnitude, without even placing on record a finding that these assets were derived from the defendant’s criminal conduct. Defense counsel’s argument is also supported by the evidence of payments of substantial sums to Macro Investment or Tele Investment, which likewise came from the accounts administered by Servicios Notariales QC S.A., as demonstrated at trial with the assistance of EVIDENCE 619, Expert Report No. 202-DEF-445-05/06 of the Economic and Financial Crimes Section of the Criminal Investigations Department of the O.I.J., and its annexes.

It consists of 178 folios and 7 evidence files: No. 1 with 40 folios, No. 2 with 437 folios, No. 3 with 368 folios, No. 4 with 232 folios, No. 5 with 113 folios, No. 6 with 192 folios, and No. 7 with 251 folios. According to the appellant, this evidence establishes the entire origin and destination of the Alcatel Cit funds delivered by [Nombre009] for the benefit of the defendants in the case, but the Court did not take the care to analyze this evidence and, disregarding the fact that these were private funds managed by Servicios Notariales Q.C., ordered the forfeiture of two assets, specifically the OWNERSHIP INTEREST IN A COMPANY NAMED LA SELVA DE LA MARINA and a residence belonging to PUNTO DE NEGOCIOS LQC S.A., acquired with funds unrelated to THE SUBJECT MATTER OF THE OFFENSE OF IMPROPER BRIBERY (COHECHO IMPROPIO). Accordingly, the forfeiture of the described assets must be reversed, and the competent court must be ordered to return the forfeited properties and shares. 5.

Challenges concerning issues arising from the civil actions filed against the defendant. The appellant, also acting as Special Judicial Attorney-in-Fact for THE CIVIL DEFENDANTS: Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A.; La Selva de la Marina S.A.; Servicios Notariales QC S.A.; and [Nombre009] personally, pursuant to the cited provisions and within the same statutory period, RECAST THE JOINDER PREVIOUSLY FILED AT THE APPROPRIATE PROCEDURAL STAGE as an appeal and added several grounds concerning the civil aspects of the judgment. A first argument concerns the absence of reasoning for denying an award of costs, as follows. FIRST GROUND OF APPEAL CONCERNING THE CIVIL ISSUES. Absence of reasoning for denying an award of costs. The provisions of Articles 39 and 41 of the Political Constitution and Articles 363 and 369 of the Code of Criminal Procedure have been violated.

He raises a second ground concerning the fact that those he represents have had to endure seven years of proceedings, civil claims, and attachment (embargo) of property. Accordingly, it is not the case that there were neither prevailing nor losing parties; on the contrary, there are persons who have had to endure being defendants for a lengthy period. He therefore contends that the conduct of the civil plaintiffs should have had consequences. He rejects the notion that there was a plausible basis for litigation when a causal link between the alleged acts and those civil claims was never established. It was proven that those he represents did not receive funds from ICE or any other public institution. These were private funds. He therefore requests that the civil plaintiffs, Instituto Costarricense de Electricidad and the State, be ordered to pay the costs of the proceedings borne by the civil defendants through this stage, including the appeal. In a third ground, he alleges an erroneous interpretation of Article 277 of the Code of Civil Procedure concerning compensation for damages. He sets forth his reasons as follows:

“…It is the position of this representation that the Trial Court’s interpretation of Article 277 of the Code of Civil Procedure is erroneous, and the judicial precedent cited in support of its position is unquestionably inappropriate.

The judgment essentially argues that, because no ruling on the merits of the civil actions was issued, the ordered attachments must be lifted and the award of damages denied, while considering the parties’ ability to resort to civil proceedings to resolve their disputes. It would be impossible to extend the scope of the cited Article 277 through interpretation, since doing so would constitute an expansive interpretation of a punitive provision.

First, the Court’s decision to afford the plaintiffs an opportunity to resort to ordinary civil proceedings, presumably in pursuit of their interests, is unfortunate. That decision would be admissible only if the plaintiff had not already borne everything entailed by the civil proceedings within the criminal proceedings. The Trial Court disregards the procedural principle of ‘election of forum’ (elección de vía). The plaintiffs chose to pursue their interests through a civil action within the criminal proceedings. This is so clearly the case that appeals in cassation filed by the civil plaintiffs are still pending. The Court’s dismissal of their claims because of defects in the RELIEF SOUGHT cannot justify referring the parties to a subsequent civil claim. The plaintiffs exhausted the avenue of criminal proceedings in pursuit of potential compensation; the fact that they did not know how to do so properly does not entitle them to remain legally authorized to pursue it through ordinary civil proceedings.

The Court’s interpretation does indeed violate Article 2 of the Code of Criminal Procedure. The judge knows the law, and from that standpoint it is evident that the Court is improperly benefiting one of the parties to the proceedings because of that party’s own deficient conduct…” He insists that the claim was DISMISSED WITH FINALITY BY JUDGMENT and that this is why the lifting of the attachments (embargos) was ordered; in such a case, the defendants would be entitled to the payment into court (consignación) of the cash as damages, by way of fixed compensation: that is the content and spirit of the provision at issue. He emphasizes that his clients have endured seven years of proceedings, including attachments. A tortuous proceeding in which they had to wait until the end to learn, during closing arguments, of the claims asserted by the civil plaintiffs against legal entities and natural persons who had nothing whatsoever to do with public funds.

Nor was it possible to establish a causal link between the civil defendants and the conduct of those convicted. He likewise challenges the decision to open the door for the civil plaintiffs to resort to civil proceedings to file their claims again, even though they had already chosen the forum in which to litigate those issues. The civil claim was rejected, subject to whatever this Chamber may decide when analyzing the grounds for cassation (casación) raised by the civil plaintiffs. Accordingly, he requests that the appeal be granted for the reasons stated, that the judgment be reversed insofar as it REJECTS the fixed compensation as damages governed by section 277 of the Code of Civil Procedure, and that the matter be remanded to the Criminal Trial Court so that it may make the disbursements to the civil defendants in the proportion corresponding to them under the claims filed. The issue of the award of costs and the issue of the civil actions must be resolved in a new trial on those matters.

This Chamber has already ruled on the issue of the civil actions for damages (acciones civiles resarcitorias), the absence of an award of costs, and the interpretation adopted by the majority of the court regarding this issue when deciding the appeal filed by Christian Arguedas on behalf of Dr. [Nombre012]. It was held that the ruling on the issue constituted a manifest denial of access to justice based on formalities that have no basis in Article 112(d) of the Code of Criminal Procedure, an error that must be corrected. The failure to rule on the merits of the civil actions brought by the Instituto Costarricense de Electricidad and the Procuraduría General de la República must also be corrected. Likewise, in a retrial following remand (juicio de reenvío), a decision must be made regarding costs and whether there was plausible cause to litigate: the failure to decide the merits of the civil actions caused an error affecting the determination of costs, which unquestionably prejudices the parties.

For that reason, when deciding the appeal filed by attorney Arguedas, it was held that the effects of his challenge also benefit the other civil co-defendants because it is not based on exclusively personal grounds. Accordingly, the judgment has already been vacated as to its civil aspects insofar as it omitted a ruling on the substantive right at issue in connection with the civil actions filed, as well as with respect to the ruling on costs, and the proceedings are remanded to the court with jurisdiction for renewed adjudication of those matters.

XI.DECISION ON THE APPEAL FILED BY ATTORNEYS ERICK RAMOS AND FEDERICO MORALES ON BEHALF OF DEFENDANT [Nombre015].- 1. Regarding the four offenses of Penalty for the Corrupter (Penalidad del Corruptor): Among the issues raised by attorneys Erick Ramos and Federico Morales, representing Mr. [Nombre015], they have expressed their disagreement with the judgment through various filings, the first of which was an appeal in cassation that was filed and subsequently converted into an appeal. This Chamber proceeds to decide the grounds that, standing alone, entail the nullity of the judgment and the acquittal of the accused on four offenses of PENALTY FOR THE CORRUPTER, committed to the detriment of Probity in the Exercise of Public Office. First Section.- Defects that, standing alone, entail the nullity of the entire decision. A. Statute of limitations (prescripción) in the case. In the first procedural ground of the appeal, attorneys Erick Ramos and Federico Morales allege a violation of due process because the case was time-barred.

They state that the statute-of-limitations objection (excepción de prescripción) was raised at various stages and was rejected. The reason given by the Trial Court for rejecting the statute-of-limitations argument was based on the declaration that the case was subject to complex-case proceedings (tramitación compleja), issued on March 3, 2006, with the judges finding that, as a result, the reduction of the limitations period could not apply, pursuant to the third paragraph of Article 376 of the procedural legislation. As the defense explains, procedural acts are governed by the law in force when they occur and take effect under that law. Article 376 of the Code of Criminal Procedure would not allow a declaration of complex-case proceedings either to have retroactive effect or to interrupt the limitations period. Thus, the limitations period for the acts attributed to [Nombre080] would have expired on April 14, 2007, without any of the tolling events (actos interruptores) established by the criminal procedural law having occurred by that time.

They request that this appeal in cassation be granted on this ground and that the criminal action be declared extinguished by the statute of limitations on April 14, 2007. Their claim is well founded. Defense counsel argue that the case should have been declared time-barred when the issue was raised during the proceedings because the final deadline extinguishing the criminal action had elapsed. Although it is clear in principle that the public criminal action was extinguished in the case at bar in favor of [Nombre015] as a consequence of the statute of limitations, the sentencing court provided timely reasoning based on

Article 376 of the Code of Criminal Procedure, which broadly provides that when a case is ordered to proceed as complex during the investigation and intermediate stages, the reduction of the limitations period by half does not apply, as provided in Article 33 of the Code of Criminal Procedure; accordingly, in this case, the declaration of complex-case proceedings prevented the claim seeking extinguishment of the criminal action from being decided favorably. The appellants’ main argument is that the declaration of complex-case proceedings does not alter the effects of the reduction of the limitations period that had already operated at the relevant time in favor of Mr. [Nombre015] in 2004. The record shows, the appellants contend, that [Nombre015] was examined as a defendant (indagado) concerning the acts at issue in these proceedings at 14:30 on October 14, 2004. Accordingly, the period for extinguishment of the criminal action would expire on April 14, 2007, because the next act that, under a strict application of the law, suspends the limitations period is the scheduling of the Preliminary Hearing (Audiencia Preliminar), which in this case was not ordered until September 10, 2007.

Under this starting point, the defendant’s examination (declaración indagatoria) would have reduced the limitations period by half, as required by the Code of Criminal Procedure. The declaration of complex-case proceedings therefore could not affect what had already occurred under the general rules imposed by the procedural legislation. In support, they cite the scholarship of Prof. Javier Llobet in his work “Código Procesal Penal Comentado,” who maintains that if the reduction of the limitations period by half has already taken effect, it should govern the remainder of the proceedings, rather than subsequently asserting that the reduction did not take effect, because that would amount to a form of “manipulation” of the limitations period through the retroactive application of the declaration of complexity. This Chamber had already ruled against giving retroactive effect to the declaration of complex-case proceedings.

The reasoning supporting this conclusion was already set forth when deciding the appeal filed by Dr. [Nombre012], to which reference is made to avoid unnecessary repetition. The case against [Nombre015] must therefore be declared time-barred, and he must be acquitted of the four offenses of penalty for the corrupter charged against him. B. Inadmissible evidence (unlawfully obtained evidence) (prueba inutilizable [ilícita]). The Court used information obtained from the statement of co-defendant (coimputado) [Nombre026], who provided that information supporting the conviction in exchange for an improper procedural advantage. The second ground of [Nombre015]’s defense appeal alleges failure to apply and erroneous application of procedural law because unlawfully obtained evidence was used to convict their client. They contend that the information provided by [Nombre026] was generated through an agreement with the Public Prosecution Service that was structured in a manner contrary to due process because the discretionary non-prosecution arrangement (criterio de oportunidad) favoring him was accepted in violation of procedural rules. They cite passages from the judgment demonstrating that the information supplied by [Nombre026] was instrumental in supporting the court’s conviction:

“… in any event, [Nombre009] was present here from the planning stage because, before the corrupt promises were made, it was necessary to know how the payments would be made, and that was his task. It should be recalled that [Nombre026] stated that, on one of the occasions when he asked him about Servicios Notariales QC S.A., [Nombre015] told him that this was the method they had devised so that everyone would be protected; that is, even before the plan was put into operation, the method for achieving that protection was already known.” (p. 1157) “In light of these circumstances, it is appropriate to ask: If the equipment had been donated by Alcatel in 1998, meaning that it was already operating in 1999 and 2000, why was Alcatel not authorized to participate in the direct procurements (contrataciones directas) in which Lucent and Ericsson were the suppliers? If that equipment was operational, why had Alcatel not been authorized to participate in the last procurement of 100.000 cellular lines?

If it had been asserted that genuine equipment compatible with the ICE cellular system was required, among other reasons, to exclude Alcatel as a bidder, why was it now being considered for a direct award on the ground that it had genuine equipment, without substitutes, etc.? Why did it now have legal and technical support? What now prompted the board of directors to change the position it had maintained for years? The only plausible answer this panel finds is that, with respect to directors [Nombre004] and [Nombre026], the promise of payment had already been made; the latter so stated, while the former not only participated previously in the cited sessions in which Alcatel’s participation was denied but, during session 5271, expressly supported the procurement and justified his position by reference to memoranda signed by [Nombre061] and the Legal Advisory Office.” (1164) “[Nombre026]’s statement is entirely consistent with the evidence presented, and is relevant here (although this reference has been sporadic in the assessments made in this recital (considerando)) because it shows that, when [Nombre035] and [Nombre015] made the unlawful offer of remuneration to him (a principios de diciembre de 2001), three requests were made in exchange for the bribe: his assistance with the technology migration, the public tender, and the award of the contract in the event that the tender took place.

The various defense counsel for the accused, including Licda. Valenciano, Lic. Navarro, Lic. Gairaud, Lic. Ramos, Lic. Morales, and Lic. Villalobos, argue that these statements by [Nombre026] are implausible because the technology migration occurred in mayo de 2000, although Lic. Navarro claims that it dates back to año 1998—without elaborating—and Lic. Ramos places it even further back in time. The fact remains that they essentially agree that, if the decision described preceded the promise, it made no logical sense for that objective to serve as the basis for the offer.

Nevertheless, [Nombre026]’s assertions have been fully corroborated by this court on the basis of the items of evidence that will be specified.” (1167) “That is why it is highly revealing that, when the threat arose that the agreement would be challenged, [Nombre015] conveyed his concern to the board and asked [Nombre026] to attend session 5277 because there was an attempt to reverse the tender. In other words, [Nombre015] not only knew in advance that the agreement was going to be challenged (evidence Nº 630, “carta CD-ICE”, del 8 de marzo de 2001), but also requested [Nombre026]’s intervention to prevent this, as [Nombre026] stated. His participation is corroborated by the minutes of the corresponding session, at which [Nombre026] spoke in favor of maintaining the proposal and at which [Nombre026], [Nombre052], [Nombre066], and [Nombre004] in fact voted in favor of maintaining the contract, while [Nombre027] was supported by [Nombre067] and [Nombre055]; thus, the decision was reached by a narrow majority.

This letter del 8 de marzo de 2001 also shows that, at that time, Alcatel’s situation within ICE remained difficult. [Nombre026] testified that he did not attend the first session of the board of directors, but that he had already met with [Nombre015] and [Nombre035] by then; this is why he spoke in favor of direct procurement (compra directa), because it was part of the commitment undertaken to migrate, and it is indeed corroborated that he did so at session 5277.” (1172) “- Before the money was received, the accused [Nombre015] communicated that circumstance, and logic therefore establishes that [Nombre015] and [Nombre009] had prior and regular communications to coordinate the relevant arrangements, to such an extent that the funds were subsequently transferred, as indeed occurred in a similar manner on repeated occasions, according to [Nombre026]. Consistent with [Nombre026]’s account regarding this practice by [Nombre015], the witness [Nombre081] explained that…” (1185) “With respect to the involvement of [Nombre035] and [Nombre015], it should be noted that [Nombre026] himself stated that, on all seven occasions when funds were transferred to him or certificates were delivered to him, [Nombre015] asked him about the circumstances for their delivery; and, in the cases involving a transfer, he gave [Nombre015] the account number and the funds did in fact arrive there.

This reveals that [Nombre015] communicated that information to [Nombre009], who was responsible for that account. [Nombre026] also stated that, when he asked [Nombre015] who SNQC S.A. was, [Nombre015] replied that it was the system they had devised so that everyone would be protected, thus indicating planned and joint participation.” (1258) Furthermore, the appellants insist in their brief that the judgment contains an express “Recital” (cf. Considerando XI, point A.) in which the judges justify their use of the information introduced by [Nombre026]. They support their argument with a description of procedural circumstances and events that substantiate their assertion:

“…Description of Procedural Actions FIRST: En fecha 31 de enero del 2006, the person who appeared at trial as a cooperating co-accused (coimputado colaborador), Mr. [Nombre026]; his privately retained defense counsel, EWALD ACUÑA BLANCO; assistant prosecutors CRISS GONZÁLEZ UGALDE and CARLOS MORALES CHINCHILLA; and Deputy Prosecutor WARNER MOLINA RUÍZ signed an agreement for the application of a criterion of opportunity (criterio de oportunidad), as provided in artículo 22 inciso b) del Código Procesal Penal (as shown by evidence 776, which was lawfully admitted into evidence at the appropriate time during the Trial). See likewise what is stated in the challenged judgment at folio 1653.

SECOND: Pursuant to that agreement, the Ministerio Público undertook to request that the prosecution of cooperating accused [Nombre026] in case 04-006835-647-PE be discontinued in its entirety. This was conditioned upon cooperating accused [Nombre026] giving at trial—as indeed occurred—a statement similar to the one previously given before the Ministerio Público, which constitutes the ANNEX to the aforementioned criterion of opportunity. It was also conditioned upon that statement not being refuted by other evidence that would make it appear false. The prosecution’s application was further conditioned upon the information supplied by [Nombre026] making it possible to establish at trial the participation—among others—of the accused in this same case, [Nombre015], [Nombre035], [Nombre012], and [Nombre018].

THIRD: To give effect to the aforementioned agreement, the Ministerio Público, represented in that proceeding by Prosecutors Marcela Morera Molina and Amelia Robinson Molina, filed an application dated 30 de mayo del 2007 before the Juzgado Penal de la Etapa Intermedia del Segundo Circuito Judicial de San José for the application of a criterion of opportunity based on cooperation. In that filing (which we understand also forms part of evidence 776), under the section titled Statement of Facts (Relación de los Hechos), the Fiscalía included, following the numbering from 1 through 116, a series of facts and actions that purportedly constitute the subject matter of the investigation. We make this assertion because, at folio 1 of that filing, the Fiscalía states: “As a result of that investigation, the facts described below are deemed established.” It follows that these are the facts being investigated in case 04-6835-647-PE.

FOURTH: Likewise, the Case File for the Application of the Criterion of Opportunity (Legajo de Aplicación del Criterio de Oportunidad) also contains the filing dated 1 de febrero del 2006, in which Licenciado Warner Molina Ruiz, acting as Deputy Prosecutor, authorized the application of the criterion of opportunity pursuant to inciso b) del artículo 22 del Código Procesal Penal in favor of accused [Nombre026]. In that document, the Deputy Prosecutor briefly refers to the facts under investigation in that case (specifically at folios 2 and 3—folios 33 and 34 of the Case File—and at folio 8—39 of the Case File).

FIFTH: The aforementioned applications resulted in the issuance of the decision at 9:51 horas del 1º de junio del 2007, signed by Licenciada Ana Gabriela Sánchez Arroyo in her capacity as Criminal Judge of the Segundo Circuito Judicial de San José. That decision refers to the case’s general identifying information and then, in a Considerando I titled Statement of Facts, sets forth exactly the same matters described by the Fiscalía under the identically titled section, from point 1) through point 116). Considerando II states that the application filed by Prosecutors Marcela Morera Molina and Amelia Robinson Molina had the approval of the Deputy Prosecutor. It is followed by Considerando III, titled Merits (Sobre el Fondo), in which the Judge identifies the nature of the requested criterion of opportunity and examines the legal requirements for granting it. Because the decision is almost entirely devoid of proper reasoning, it is sufficient to note that, as the facts or conduct considered and assessed in determining greater culpability (mayor reprochabilidad), it refers to the conduct of [Nombre026] and the conduct of [Nombre012].

In addition, the judicial decision refers to the facts investigated in this case in relation to [Nombre015], [Nombre035], [Nombre018], and [Nombre012], which are clearly connected to the procurement of the 400 mil cellular telephone lines that was examined extensively during the oral and public trial preceding the issuance of the Judgment now being challenged…”. According to the appellants’ position, the information received by the judicial authority must be complete, particularly as to the matters under investigation, so that it can effectively exercise oversight over the activities of the Ministerio Público. This applies especially to the assessment of the effective cooperator’s lesser culpability (menor reprochabilidad). Defense counsel suggest that this assessment of “lesser culpability” was conducted by comparing the charged conduct. Accordingly, the factual framework provided by the prosecution to Licenciada Ana Gabriela Sánchez Arroyo in the filing dated 30 de mayo del 2007, through which it requested application of the criterion of opportunity based on cooperation in favor of cooperating accused [Nombre026], did not fully correspond to what was actually being investigated at that time.

Consequently, [Nombre026]’s conduct could not be assessed using all the information available to the Fiscalía. Thus, the cooperator’s conduct that the judicial authority was able to assess based on the information contained in the statement of facts provided by the Fiscalía was not the same conduct that could have been established based on all the information actually available at that time as a result of the investigation in the Fiscalía’s possession. Information existed concerning [Nombre026]’s involvement in other ICE acts and contracts related to the telephone lines and his receipt of improper payments for acts performed in the course of his duties as a public official. The appellants state the following: “…Indeed, by that point in the investigation, several statements given by co-accused [Nombre026], as well as several expert reports from the Sección de Delitos Económicos y Financieros del Organismo de Investigación Judicial, had already been added to the corresponding case file; among them, Report 297-DEF-540-04/05, which states the following at point 4.8 point 12.:

“Lastly, he referred to check No 49-1 for U.S. $46.000.00, issued by Holding de Valores y Capitales, S. A., on 26 de mayo del 2003, payable to Ms. [Nombre082], which he said he had received from [Nombre018], purportedly for collection efforts he had undertaken before ALCATEL at the request of both [Nombre018] and [Nombre012].

At this point, it bears mentioning that, in other statements, [Nombre026] had briefly referred to other sums of money received from [Nombre018]: a check for U.S.$4,000.00 and a certificate for U.S.$9.062.50. He also mentioned other gratuities amounting to U.S.$110.207.00 and U.S.$29,833.95, received from CIBERTC, S. A., and Empaques Asépticos, S. A., through [Nombre027].” Likewise, the aforementioned report states in point 5.11 that, although [Nombre026] maintained that the compensation he would receive would range between 1.5% and 2% of the total value of the contract for the 400.000 cellular telephone lines, less expenses, the expert examination (experticia) concluded that part of the sums transferred by Servicios Notariales Q.C., S. A., to [Nombre026] was also connected with other contracts entered into by ICE for the purchase of ALCATEL fixed-line exchanges.

It is important to emphasize—following this same line of discussion—that [Nombre026] allegedly stated in setiembre del 2004 that he had received improper payments for his participation, as a member of the ICE Board of Directors, in approving the concession for the Proyecto Hidroeléctrico La Joya. Also, in octubre del 2004, [Nombre026] confessed before the Fiscalía that he had received money or improper payments in connection with Teletec and Empaques Asépticos. In noviembre del 2004, he also testified regarding the receipt of certain improper funds. Likewise, in mayo del 2005, he stated that he had received money from Holding y Valores corresponding to payments for improper acts connected with the performance of his duties as a public official.

It is therefore clear that, when the Fiscalía petitioned the Juzgado Penal de la Etapa Intermedia del Segundo Circuito Judicial de San José to apply the discretionary prosecution criterion based on cooperation (criterio de oportunidad por colaboración) in favor of [Nombre026], the Ministerio Público had sufficient information to fully understand the possible involvement of the cooperating defendant (imputado colaborador), [Nombre026], in other criminal acts unrelated to the contract for the 400 mil cellular telephone lines.

Nevertheless, this information, which concerned acts other than those directly connected with the contract for the 400 mil lines, was withheld from the Judge. This assertion is supported by a review of the statement of facts (relación de hechos) contained in the Fiscalía’s application for approval of the discretionary prosecution criterion negotiated with [Nombre026], as well as the statement of facts contained in the ruling issued on 1º de junio del 2007, which approved that legal mechanism (instituto). We consider it legitimate to state that the other aforementioned acts involving [Nombre026], which were unrelated to the cited ICE contract, were not disclosed to the judicial authority as required…” Furthermore, during the trial itself, and through information made public to the news media, the appellants learned that the subject matter of the agreement between the Ministerio Público and co-defendant (coimputado) [Nombre026] allegedly encompassed acts other than those related to the contract awarding the 400 mil cellular telephone lines to Empresa ALCATEL. In support of this assertion, they cite the statements made by Prosecutor Maribel Bustillo in the brief dated 25 de julio del 2008, which, together with the ruling issued at 13:40 horas del 18 de mayo del 2009, appear in expediente 08-000032-615-PE, which they request ad effectum videndi. She stated:

“The agreement in question shows that, in the exercise of its vested authority, the Ministerio Público undertakes to request, in favor of [Nombre026], that criminal prosecution be waived, not only for the act concerning money improperly received from Alcatel in connection with the Instituto Costarricense de Electricidad’s procurement of the four hundred thousand GSM-technology mobile lines, but for the entirety of the criminal prosecution in case No. 04-006835-647-PE, which encompasses this act and the other acts mentioned by the complainant, since they all form part of the investigation bearing the stated unique number. This is confirmed by the fact that the defendant was questioned about all those acts well before this agreement was applied, on 30 de setiembre del 2004.” The appellants insist that this document establishes that the subject matter of the negotiations between the Ministerio Público and [Nombre026] was the waiver of the exercise of the criminal action (acción penal) with respect to ALL acts known to and investigated by the Fiscalía at the time of those negotiations, that is, as of 31 de enero de 2004. Nevertheless, when judicial authorization was sought for application of the discretionary prosecution criterion, the acts under investigation in expediente número 04-6835-647-PE were not disclosed.

Attorneys Ramos and Morales emphasize that the Fiscalía’s application therefore included additional acts beyond those described in the statement of facts originally submitted by its representatives. This conduct would be contrary to constitutional and statutory requirements because the judicial body should have been informed of the acts regarding which an agreement was actually being reached with the person subject to prosecution (justiciable), [Nombre026]. Accordingly, the incomplete information would have resulted in defective procedural activity (actividad procesal defectuosa), which served as the basis for approving the discretionary prosecution criterion that benefited this defendant and was contrary to the express provisions of article 96 of the Código Procesal Penal. Likewise, the judicial decision contained in the ruling issued at 13:30 horas del 2 de setiembre del 2010, rendered as an interlocutory decision during the Trial that resulted in the Judgment being challenged, and which authorized by majority decision the introduction at trial of the statement made by the accused (encartado), [Nombre026], would also be untenable. They quote the following passage from the judgment justifying the introduction of this co-defendant’s testimony:

“The agreement has been challenged by defense counsel for the accused on the grounds that it grants [Nombre026] impunity for other offenses committed; nevertheless, the agreement, quoted verbatim, states that the Ministerio Público undertakes to request in favor of defendant [Nombre026] that ‘criminal prosecution in the above-mentioned case be waived in its entirety,’ while the heading of the document states ‘Illicit enrichment and others,’ evidence item Nº 776. The application of the discretionary prosecution criterion includes a statement of facts concerning the award of the 400.000 cellular telephone lines to Alcatel, and folio 28 states that the legal classification assigned to the acts described consists of one offense of bribery involving the proper performance of official duties (cohecho propio) and one offense of aggravated corruption through bribery involving the improper performance of official duties (corrupción agravada por cohecho impropio) against [Nombre026].

The ruling issued by the criminal-court judge at 9:51 hora del 1º de junio de 2007, authorizing application of the discretionary prosecution criterion, after transcribing the statement of facts described and setting out other considerations, states that it concerns the offense of Illicit Enrichment to the detriment of Instituto Costarricense de Electricidad. Nevertheless, irrespective of the legal designations noted above, what actually matters for purposes of the final decision on that application by the competent judicial body, pursuant to article 23 párrafo segundo del Código Procesal Penal, is the factual basis contained in the application and the ruling.

Accordingly, defense counsel for the accused are incorrect in claiming that the Fiscalía deceived the criminal-court judge by granting [Nombre026] impunity for offenses not encompassed by the application. The matter of other alleged offenses attributed to [Nombre026] is entirely outside this court’s purview because, in addition to his being protected by the presumption of innocence (principio de inocencia) with respect to them—as is any other person suspected of committing an offense—these proceedings are not intended to try [Nombre026], nor to assess other potentially unlawful conduct attributed to him. In this case, the only relevant issue is [Nombre026]’s involvement in acts connected with each of the defendants to whom his cooperation pertains and who are charged in these proceedings.

In any event, how could the Ministerio Público deceive the criminal-court judge if the offenses for which it sought the discretionary prosecution criterion are those connected with the acts set forth in the application? If article 23 párrafo segundo del Código Procesal Penal states that the criminal court must assess the waiver of prosecution ‘in relation to the acts or persons in whose favor the discretionary prosecution criterion was applied,’ how could other criminal conduct be encompassed? Attorney Gairaud also objects to the discretionary prosecution criterion, arguing that the criminal action for offenses not included in that application would have become time-barred (prescripción); although this reasoning is contradictory or unclear in relation to the argument previously advanced, it is reiterated in any event that these proceedings concern exclusively [Nombre026]’s evidentiary contribution to the trial of defendants [Nombre012], [Nombre015], and [Nombre018].

[Nombre026] has also maintained that, from his first statement onward, he was willing to have his bank accounts, cards, and telephone calls investigated, and that he offered everything within his reach for purposes of the investigation. His wife and mother displayed a similar attitude. Folio 434 of Tomo II contains his authorization dated 5 de octubre de 2004 for copies of all documents relating to his checking accounts to be provided to the Fiscalía’s representatives, and señora [Nombre082] acted similarly, as recorded at folio 432 of Tomo II. Likewise, beginning on 12 de octubre de 2004, he proceeded to surrender certificate Nº [Valor051] in the amount of $1.401.241.36, as may be inferred from the documents at folios 462 to 465…” …rigorous examination of the content of his account and the possible impact of the circumstances noted Although the specific and rigorous examination of [Nombre026]’s statements will be conducted each time his account is used as evidentiary support, it may be stated at the outset that the foregoing account of the circumstances establishes that:

• i)[Nombre026]’s first statement was made on 30 de setiembre de 2004, folios 127 to 136, Tomo I, and by 5 de octubre de 2004 (folio 434), the cooperating defendant was already authorizing access to his checking accounts and the procurement of banking records, making his intent to cooperate with the Administration of Justice evident.
• ii)On 12 de octubre de 2004, [Nombre026] demonstrated his intention to compensate for part of the harm caused by surrendering to the Juzgado Penal de este Circuito Judicial certificate Nº [Valor051] in the amount of $1.401.241.36.
• iii)On May 9, 2005, 8 months after the proceedings commenced, [Nombre026] agreed with the Ministerio Público to the application of an abbreviated procedure (procedimiento abreviado), undertaking to accept responsibility for the acts, serve a sentence of 4 years’ imprisonment without any benefit whatsoever, testify at trial, pay the amounts indicated to the Procuraduría General de la República and the Instituto Costarricense de Electricidad, and surrender two cars. Contrary to what counsel for [Nombre012] asserted, it is evident that, at that time, the conditions for [Nombre026] to qualify for the benefit under Article 55 of the Código Penal had not been met; moreover, that possibility had not been negotiated with the Ministerio Público, nor was authorization of that nature within its powers. Furthermore, given the length of the sentence, pursuant to Article 59 of the Código Penal, [Nombre026] would indeed have had to serve that sentence, since he would not have qualified for a suspended sentence (beneficio de ejecución condicional de la sanción).

Lastly, if the agreement to enter into the abbreviated procedure entailed the imposition of the sentence described and appearing at trial to testify, assuming hypothetically that the procedure had been authorized by the competent court, what would have motivated [Nombre026] to appear at trial and testify if he was required to serve the sentence of 4 years’ imprisonment? That is, if his purpose in coming to trial, according to the defense, was to obtain impunity, why did [Nombre026] initially accept this same condition in exchange for serving a sentence of 4 years’ imprisonment? The argument described is utterly illogical.

• iv)The aforementioned abbreviated procedure could not be finalized because of the refusal of the private prosecutors (querellantes), [Nombre083] and [Nombre084], who not only raised doubts in the appellate judge as to their legitimate interest in bringing a private prosecution, but also as to their prosecution of one of the witnesses concerning the criminal conduct of [Nombre012], the latter having authorized [Nombre083] to attend a private hearing at which he appeared, in addition to the documented visits by [Nombre083] during [Nombre012]’s house arrest. Besides raising suspicions concerning the true grounds on which [Nombre083] and [Nombre084] brought the criminal action, given the former’s connection to defendant (encartado) [Nombre012], the fact remains—in any event and, most importantly for present purposes—that, paradoxically, it was because those private prosecutors refused to allow the abbreviated procedure to be agreed upon and finalized that [Nombre026] was ultimately legally prevented from accepting the charges and receiving the custodial sentence of 4 years’ imprisonment that he had agreed upon with the Prosecutor’s Office.

This demonstrates the falsity of defense counsel’s argument that [Nombre026] was granted the benefit of discretionary prosecution (criterio de oportunidad) by the Prosecutor’s Office so that, in exchange for his impunity, he would “sink” the accused; for if he did go unpunished, understood as the absence of a criminal penalty, this resulted from the actions taken by persons close to [Nombre012]. In other words, if the acts for which [Nombre026] admitted responsibility went unpunished, it was because [Nombre083] and [Nombre084] refused to accept application of the abbreviated procedure, not because the Prosecutor’s Office, out of the blue, “blackmailed” [Nombre026] with discretionary prosecution so that he would testify at this trial, particularly since he had already accepted that condition without being offered that mechanism. Another matter warranting discussion is the alleged favoritism shown by the Ministerio Público toward [Nombre026].

Other defendants in this case underwent similar procedures; specifically, former I.C.E. director [Nombre027] and [Nombre064], who was in charge of Intelmar S.A., agreed with the Prosecutor’s Office to sentences of 3 years’ imprisonment, with each being granted a suspended sentence. Accordingly, what preferential treatment was there when, had the abbreviated procedure been approved, [Nombre026] would have received a sentence of 4 years’ imprisonment without suspension? The dissenting opinion (voto de minoría) also questions the fact that [Nombre026] was allegedly allowed to retain an economic benefit of 2 million and a half dollars, purportedly derived from gratuities received, and to keep one million dollars, all in exchange for his testimony. The majority cannot discern what evidence or inference enabled the minority position to make that assertion. Leaving that aside, however, the body of evidence does establish that, with or without an abbreviated procedure and with or without discretionary prosecution, on October 12, 2004, [Nombre026] delivered to the Criminal Court of this Judicial Circuit certificate Nº [Valor051] in the amount of $1.401.241.36.

The rules of logic indicate to this court that, if [Nombre026] wished to keep some money in exchange for his impunity, he would not have surrendered the amount described when he had not even negotiated that possibility; and that if the Ministerio Público—according to the suggested dynamic—wanted to compensate him with the amount he did not surrender so that he would testify, it would likewise have wanted to “compensate him” when, for that same amount, it agreed with him on application of the abbreviated procedure and imposition of a sentence of 4 years’ imprisonment. It would then also have to be asserted that the Ministerio Público sought to “compensate” [Nombre064] when he returned only $100.000, despite proof that he had received more than $1.000.000; but presumably the Ministerio Público did not seek to “compensate” [Nombre027] when it negotiated the abbreviated procedure with him and the return of more than $1.000.000.

On the contrary, all of the foregoing shows that the Prosecutor’s Office did not condition its negotiations with the defendants described, or with the cooperating defendant, on repayment of the exact amount from which they had benefited.

• v)The agreement between [Nombre026] and the representatives of the Ministerio Público regarding application of discretionary prosecution occurred on January 31, 2006, and through its execution, one year and several months after these criminal proceedings commenced, [Nombre026] once again undertook to appear and testify at trial, having already made a similar commitment under the abbreviated procedure.

For all of the foregoing reasons, it may be stated, in summary, that [Nombre026] did not appear at this trial to testify as a consequence of discretionary prosecution or in exchange for his impunity; and that when [Nombre026] was asked why he agreed to appear and testify, and he responded that he wished to publicly assume responsibility for his actions, this court deemed his statements wholly credible and disinterested, because that initiative did not arise under discretionary prosecution but many months before that mechanism was granted, and even after he had first exhausted another possibility that was more onerous for him.

It has already been stated that [Nombre026]’s specific assertions will be assessed in the instances in which such evidence is introduced. Nevertheless, because counsel for [Nombre001], [Nombre004], [Nombre012], [Nombre015], and [Nombre018] challenge his credibility by referring to common and general matters, those matters warrant discussion. They argue that the fact that [Nombre026] refrained from answering questions posed by counsel for defendants [Nombre012], [Nombre015], and [Nombre021] undermines the credibility of his account. This court finds, however, that the aforementioned conduct by [Nombre026] does not affect the credibility accorded to his account because, whenever he declined to answer questions, he did so for various reasons but on a single basis: either because he was questioned about self-incriminating acts regarding which he had the right to remain silent, or because he was asked about acts unrelated to the accused. In either case, that conduct arose from the warning given to him by the court before he testified at the first hearing on September 8, 2010. Both at that time and by means of the ruling issued at 13:30 on September 2, 2010, it was stated:

“...this body’s decision is maintained that [Nombre026] shall appear to testify in his capacity as a cooperating defendant (imputado colaborador), and he shall be informed: i) of his rights not to testify against himself and to refrain from testifying about the acts, without his silence being held against him; ii) of his right to receive the assistance of an attorney of his choosing and to communicate with that attorney freely and privately; and iii) that, should he choose to testify, he shall be warned that anything he says could potentially be used against him, as well as of his right to state whatever he considers appropriate and related to the charged acts; the parties and the court may question him without subject-matter limitations, except as to form, relevance, and usefulness, and it shall remain his decision whether to answer.” (boldface supplied) For present purposes, the court issued that warning pursuant to Article 326 in relation to the principle of congruence (principio de correlación) established in Article 365, both of the Código Procesal Penal.

The former provides that the trial, in addition to being the essential stage of the proceedings, is conducted on the basis of the accusation, which—in accordance with the aforementioned principle—determines the content of the judgment. In other words, because the court was legally barred from hearing about unlawful acts other than those charged, [Nombre026] was expressly informed that, should he choose to testify, he would have the right to state whatever he considered appropriate, provided it related to those acts. Accordingly, his refusal to discuss circumstances not contained in the accusation and potentially self-incriminating does nothing to undermine his credibility.

Consequently, neither could it be argued that there is a conflict here between the defense rights of the cooperating defendant and those of the accused, because what prevails here is the delimitation of the trial and the evidentiary activity based on the accusation. The accused’s right to a defense was not violated because they were held responsible not on the basis of acts allegedly committed by a third party, but for their own acts, concerning which they had ample opportunity to question and obtain answers from the cooperating defendant. Moreover, protection of [Nombre026]’s right to remain silent was not the fundamental issue, since this court would in any event lack jurisdiction over such events to convict him if he admitted them or to acquit him if he denied them. They were simply factual circumstances that did not occasion his appearance at trial and were not relevant to these proceedings, regardless of how relevant they may have been to the parties.” (See Considerando XI, p.1654 to 1660) It is therefore argued that the Trial Court decided to act in accordance with its own judgment, not to declare the defective procedural activity (actividad procesal defectuosa) resulting from the Public Prosecutor’s Office’s failure to act, and to allow [Nombre026] to testify, deeming it unnecessary to determine whether the public criminal prosecution (acción penal pública) that should have been pursued in connection with all the criminal acts committed by and attributable to [Nombre026] was unlawfully abandoned by the Prosecutor’s Office as a result of the effects inherent in the improperly granted discretionary prosecution criterion (criterio de oportunidad) in the case at bar (subjúdice).

The conviction of [Nombre015] resulted essentially from the information provided by this unlawful item of evidence (elemento probatorio contrario a derecho) (the testimony of [Nombre026]). They add that the minority opinion issued by Judge Camacho Morales in the challenged Judgment provides additional support for these arguments, and they summarize the principal aspects arising from the reasoning of the dissenting opinion as follows:

“…1. Incomplete application submitted by the Prosecutor’s Office requesting that the Judge approve the application of the discretionary prosecution criterion in the specific case and under the terms set forth in Article 22(b) of the Code of Criminal Procedure (Código Procesal Penal); 2. Unreasoned judicial ruling (resolución jurisdiccional carente de fundamento) approving the application of the discretionary prosecution criterion and justifying [Nombre026]’s testimony at trial; 3. Testimony given at trial by co-defendant (coimputado) [Nombre026], improperly induced by the promise of a procedural benefit (ventaja procesal) that could not legally be granted.

4. Use of information derived exclusively from unlawfully obtained evidence (prueba ilícita) to establish the essential factual framework used to convict—among others—[Nombre015].

This representation considers that, based on the foregoing, the following is required:

1. To grant this Appeal in Cassation (Recurso de Casación) on the basis of this first ground for cassation (motivo de casación); 2. To declare that the application of the discretionary prosecution criterion contained in the filing (memorial) appearing at folio 1 and the following folios of the corresponding case file (Legajo) (evidence 776) constitutes defective procedural activity; 3. To declare unlawful, because it is based essentially on procedurally defective acts (actos procesales defectuosamente verificados), the ruling issued at 9:51 a.m. on June 1, 2007, by the Criminal Court for the Intermediate Stage of the Second Judicial Circuit of San José, signed by Licenciada Ana Gabriela Sánchez Arroyo; 4. To delimit the effects of such declarations and also rule that the decision issued by this Court at 1:30 p.m. on September 2, 2010, is unlawful insofar as it ordered that [Nombre026]’s testimony be given at trial (which occurred on subsequent days), since that decision was based essentially on the assumption that the judicial ruling mentioned in the preceding paragraph was lawful; 5.

It must be declared that the information derived from the testimony given at trial by cooperating co-defendant (coimputado colaborador) [Nombre026] did not form part of the material that could be used to substantiate the challenged Judgment…” Based on the foregoing reasoning, they request that the judgment challenged through this ground of appeal be vacated because it is the product of defective procedural activity (actividad procesal defectuosa), a measure that, the appellants contend, must be adopted immediately to cure the proceedings and eliminate the harmful effects arising from that unlawful activity. Their claim is well founded, and the ground must be sustained. This Chamber has set forth a series of arguments supporting the defense’s position when ruling on the appeal filed by Dr. [Nombre012], not only from the standpoint of the regulated opportunity criterion (criterio de oportunidad reglado) applied in this case, but also with respect to the procedural and factual consequences inherent in using the statement of a “cooperating defendant” (imputado colaborador), who, in giving his statement, makes a calculation based on the procedural and punitive advantages offered to him and the information he will provide to obtain them.

Reference is made to that section of the decision to avoid unnecessary repetition. Nevertheless, it should be noted that extensive legal scholarship demonstrates the skepticism and caution generated in national and international legal doctrine by the use of this type of testimony in proceedings, as well as the recognized need for judges to critically assess such testimony under the rules of sound human understanding (reglas del correcto entendimiento humano), logic, and psychology—in essence, with suspicion—so that the information provided does not become the sole basis for convicting a defendant. This Chamber also analyzed in detail how Judge Camacho’s dissenting opinion extensively assessed the drawbacks of using his testimony, particularly because of the defects observed in the absence of effective judicial oversight (control jurisdiccional) over the application of this legal mechanism, resulting from the omission of information alleged by the appellants and ultimately leading to authorization of the opportunity criterion in favor of [Nombre026].

In essence, the details of [Nombre026]’s statement, which were included in facts numbered 84 through 94, implicate not only [Nombre012] but also [Nombre015], both because of the conversation at the “[...]” restaurant, where gifts (dádivas) were allegedly offered to [Nombre026] so that he would intervene in decisions concerning the tender (licitación) for the four hundred thousand telephone lines, and because [Nombre015] is portrayed as undertaking conduct capable of turning [Nombre026] into an effective instrument serving the interests of the multinational company Alcatel. In addition, at page 1157 of the judgment, the court introduced [Nombre026]’s statement concerning the alleged means by which the gifts would be paid, namely, that [Nombre015] had informed him that payment would be made through Servicios Notariales QC S.A. as a means of affording them greater protection. Likewise, the court’s finding regarding how the position on GSM technology changed rests on the assertion that both [Nombre026] and [Nombre004] had already received promises of remuneration, as stated by [Nombre026] (page 1164).

The majority of the Trial Court additionally found that everything stated by [Nombre026] was reliable and consistent with the evidence presented. With respect to [Nombre015], the Trial Court understood that [Nombre035] and [Nombre015] asked [Nombre026] to help them achieve the technological migration, secure the public bidding process (concurso público), and obtain the award to Alcatel if that bidding process were to take place (page 1167). In that regard, the majority of the Trial Court considered there to be a logical sequence of events: first, achieving the technological migration; then, the public bidding process; and finally, the ultimate award, which entailed the complete satisfaction of Alcatel’s commercial interests. It therefore connected [Nombre026]’s statements with [Nombre015]’s undertakings, particularly in light of the latter’s submission to ICE of a commercial proposal involving the donation of equipment in 1998 and a direct purchase (compra directa).

The proposal was presented at meeting No. 5268 of the Board of Directors on 2 de febrero de 2001. The Trial Court even found that having “bought” two officials was not enough for [Nombre015], since he already knew that the oversight authority harbored suspicions about approving the direct purchase of 160 thousand lines, based on the suspicion that interests other than those of the Public Administration were involved (page 1168). It was for that reason that the Trial Court supposed and theorized that Alcatel merely had to appear to satisfy the bidding specifications (cartel) to guarantee its success (page 1168). However, as already analyzed above in connection with the challenges raised on behalf of [Nombre001], it is more than evident that the process culminating in the award was pristine and that only two competitors, for various reasons unrelated to Alcatel, ultimately participated in the expedited procedure (procedimiento abreviado), while Ericsson was excluded for technical reasons and reasons relating to its bid.

Indeed, the assessments conducted by various ICE bodies agreed that Alcatel’s technical bid best satisfied the applicable requirements and endorsed the award, as this Chamber analyzed in detail. It may therefore be inferred from the reasoning of the majority opinion that a theory supporting conviction had been constructed on the basis of [Nombre026]’s statement and the details he provided concerning the offers of remuneration he had received and the role he was to play when participating in Board of Directors meetings as a member thereof. The truth, however, is that the migration process had been decided upon before those offers were made, and the path was not easy because the TDMA-based technological infrastructure made Costa Rica dependent on providers of that technology, a market from which Alcatel was, of course, excluded because its development platform was GSM technology. Nevertheless, neither the commercial proposal nor the delivery of the 2000 GSM lines was decisive in convincing the Board of Directors of the advisability of pursuing technological openness, because those decisions were already being made on the basis of technical criteria, benchmarking studies, and studies of other kinds.

Ultimately, the entire process led don [Nombre052] and the ICE Board of Directors to favor the direct-purchase procedure. This Chamber has already found that this approach benefited Alcatel more because it would participate proportionally in ICE’s purchases of telephone lines. The expedited procedure, for its part, did not guarantee Alcatel that certainty, given the uncertainty concerning who its competitors would be, the nature of the financial bids, and the conditions under which the entire process of evaluating those bids would take place. The contract was ultimately awarded to Alcatel, but not by virtue of a rigged bid. Everything appears to indicate that the bid satisfactorily met the public interest and ICE’s growth prospects at that time, in view of the outstanding demand and the projected future evolution of the market. Furthermore, the technological change was suited to the needs of the cellular market, which expected improved value-added communications services that the TDMA platform could not provide.

All of this was previously examined when analyzing [Nombre001]’s participation as coordinator of the committee responsible for this entire procedure, where this Chamber placed particular emphasis on analyzing the tendering process. Counsel for the defendants, particularly attorney Erick Ramos, consistently maintained that it was illogical for the offer of remuneration, as recounted by [Nombre026], to have had the objectives attributed to it by the Trial Court in its majority opinion. Despite this, the judges insist that they confirmed [Nombre026]’s assertions, even though, as demonstrated, those assertions conflict with the reality of a procedure that experts have characterized as pristine. On pages 1172 through 1175, the judgment examines the family relationship between [Nombre015] and [Nombre009], which, despite the requirements of Alcatel’s code of ethics, existed and facilitated the channel or flow of funds to the dishonest officials who ultimately decided the award process for the 400 thousand lines.

The judgment portrays [Nombre015] as using a “secure” mechanism for paying the gifts, which had allegedly already been explained to [Nombre026]. The causal connection, therefore, between [Nombre015] and Servicios Notariales Q.C. S.A., and the entire mechanism devised to pay the gifts, rests on an inference drawn from [Nombre026]’s statement, even though the connections and payments revealed by the bank-record investigation—also challenged—contributed to the court’s finding. In this regard, [Nombre026] explained that on each of the seven occasions when funds were transferred to him, [Nombre015] contacted him beforehand and asked how payment should be made. [Nombre026] gave him account numbers, and the funds flowed into those accounts. From this, the majority of the Trial Court also inferred the connection between [Nombre015] and [Nombre009], who made the payments from accounts controlled by Servicios Notariales QC S.A. [Nombre026]’s statements concerning his role in the decisions made during the expedited procedure and in the award of the “400K” project are manifestly illogical and irreconcilable with the analysis of the decision-making process, which demonstrates that ICE was already moving toward technological openness through lawful channels and despite the obstacles inherent in decision-making by the Public Administration.

Nevertheless, that path had already been opened before [Nombre026] received promises of remuneration—as he claims—to influence the procedure. The mendacity of the witness [Nombre026], and the well-founded suspicion that he acted selfishly to obtain benefits from his statement, cannot be disregarded by this Chamber; accordingly, the use of his testimony constitutes another reason to sustain the appeal filed by attorneys Ramos and Morales and to vacate the judgment under review, which found [Nombre015] guilty of four offenses of penalty for the corrupter (penalidad del corruptor). To reinforce the finding of this Chamber of Appeals, it was unnecessary to assess case file 08-000032-615-PE, brought against don Francisco Dall´Anesse Ruíz, regarding whether the agreement with co-defendant [Nombre026] encompassed other matters beyond those related to the procurement of the 400 thousand cellular lines, because, as already analyzed in connection with Dr. [Nombre012]’s appeal, it has been clearly established that the grant of the opportunity criterion was flawed in ways that affect its direct use in this case.

For the foregoing reasons, this ground is sustained and the judgment under review must be vacated without remand (reenvío), because there are no other independent elements contributing to an effective analysis of the defendant’s criminal participation in the acts attributed to him. Accordingly, pursuant to the principle of procedural economy (principio de economía procesal), he must be acquitted of all punishment and liability for those acts. C. Tainted Evidence (Prueba Espuria) (Invalidity of Evidence No. 588). The defendants [Nombre001], [Nombre009], [Nombre015], and [Nombre021].

(Appeal (recurso) appearing at folios 17264 to 17278 of Volume XXXVI), they allege in their pleading (libelo), authenticated by attorney José Miguel Villalobos Umaña, that Article 369, subsection j), was violated because the judgment was rendered in violation of due process (debido proceso), as the convictions were substantially based on unlawfully obtained evidence (prueba) that was unlawfully introduced at trial; consequently, subsection c) was also violated through the unlawful admission of an item of evidence into the proceedings, thereby contravening the constitutional provisions concerning due process and the right of defense (derecho de defensa) enshrined in constitutional provisions 39 and 41, as well as the doctrine underlying Article 8 of the American Convention on Human Rights. They additionally cite Sala Constitucional ruling No. 1739-92 of 11:45 hours on 1 de julio de 1992, drafted by then Justice Piza Escalante and adopted unanimously, which identified the elements encompassed by the concept of due process, including the principle of legitimacy of evidence (principio de legitimidad de la prueba) (subsection g), sub-subsection b)).

Alongside this principle, they invoke the general right to legality (derecho general a la legalidad), which transforms mere violations of legality into violations of due process, with the aim of securing full guarantees and substantive effectiveness. They further state that Articles 180 to 184 of the procedural legislation (legislación de rito) provide for this same consequence, arising from the principle of constitutional legality (principio de legalidad constitucional) under Article 11 of the Constitution (Carta Magna), which requires public officials to observe legal rules so that they have the moral authority to judge and punish those who violate them. But this requirement, they argue, would be meaningless unless the means of evidence (medios probatorios) were also required to be lawfully obtained, which constitutionally means that such means must be valid not only with respect to how they were obtained, but also in the manner in which they were introduced into the criminal proceedings (proceso penal).

It would therefore make no sense to obtain evidence unlawfully and then lawfully introduce it into the proceedings, because in such circumstances fundamental guarantees that judges are called upon to uphold would already have been infringed. that items of evidence used to convict him, for the purpose of examining their unlawful procurement and admission into the proceedings.

They begin with an analysis of evidence item 588, which contains banking information from Panamá concerning the accounts of Sociedad Marchwood Holding. According to the appellants, the evidence was obtained unlawfully, without a court order. Moreover, it is a certified copy of a different judicial case file. The position expressed by the judges is inconsistent, as they even maintain that determining whether the evidence was obtained unlawfully does not fall within their jurisdiction. This is contradictory because, almost from the beginning of this trial, they ruled on the matter, acknowledged that the evidence had been obtained by lifting bank secrecy (levantamiento del secreto bancario) without a judge’s order, and even excluded evidence brought to trial through an identical procedure, by means of the ruling unanimously adopted on that point and drafted by Judge García Aguilar at 8:00 hours on 14 de mayo del 2010.

That ruling states that the evidence received from Panamá is VOID: Folios 34 through 70 of that ruling set out the reasons why evidence received from Panamá, consisting of banking evidence collected without a court order, cannot be deemed valid, and therefore uphold the preliminary-hearing judge’s decision to exclude it. In any event, the appellants maintain, the judges had already expressed their position by stating that EVIDENCE ITEM 588 WAS COLLECTED WITHOUT A COURT ORDER LIFTING THE PRIVACY PROTECTION OVER THE DATA. (See Folio 894, line 2 et seq.).

As a second point, they address the banking information from Panamá derived from evidence item 588, which refers for the first time to Sociedad Servicios Notariales QC S.A., even though there is no independent evidence whatsoever in that regard. Their assessment begins from the premise that evidence item 588 is a certified copy of the Judicial Assistance proceedings (Asistencia Judicial) containing the CAJA-FISCHEL Case, which was processed in a separate case file and was therefore reviewed to obtain information for this other case. Thus, they state, Expert Report (Informe Pericial) 428-DEF-443-05-05 of the Organismo de Investigación Judicial, evidence item No. 618, includes the information received from Panamá, as shown at folios 59, 70, 81 and 88, which contain references to transfers from a company named Servicios Notariales, unrelated to the CCSS-Fischel case, to Marchwood Holding, which was under investigation in that case.

This is how the Fiscalía learned of Servicios Notariales QC S.A.; otherwise, it would not have learned of its involvement but for the use of this tainted evidence. They establish that this unlawfully obtained information arrived in Costa Rica from Panamá in early septiembre del 2004 and was ultimately received by the Fiscalía on 10 de septiembre del 2004, at 14:00 hours, as recorded at Folio 895 of the judgment. Information had been requested about Marchwood Holding, not Servicios Notariales QC, since 25 de mayo of that year, and beginning on 10 de septiembre, the Fiscalía learned of the existence of a company identified as QC and commenced an investigation into it at that time. In other words, they insist, there was no prior reference to Servicios Notariales QC before 10 de septiembre, and therefore the ICE-ALCATEL case investigation formally began with information obtained from evidence item 588 from Panamá.

That evidence, they emphasize, is void because it was obtained without a court order, and the information derived from it must therefore be excluded pursuant to the exclusionary rule (regla de exclusión) established by Sala Constitucional decisions and provisions 180 et seq. of the Código Procesal Penal, affecting every item derived from it.

They argue that there is no evidence independent and autonomous from that unlawful evidence that could cure the illegality of the information obtained from evidence item 588. According to the judges issuing the Majority Decision (Voto de Mayoría), evidence independent of evidence item 588 existed, was unaffected by the alleged illegality, and, if evidence item 588 were eliminated, could support the assertions in the prosecution’s charges against the accused persons (justiciables). To that end, they cite journalistic sources: evidence item 592.9, entitled PRINT-PRESS MONITORING FROM 9 TO 31 DE DICIEMBRE DEL 2004, referring to publications dated 21 and 27 de abril of that year, which, according to the accused persons, make no reference whatsoever to the issue under discussion. This is because the news reports cited by the judges do not establish the existence of a company called Servicios Notariales QC S.A. They contain only references to a house in [...] and to [Nombre021].

At folio 935, newspaper reports from abril de 2004, contained in evidence items 529.9 and 682.1, are cited. However, the first discusses certain matters involving Taiwan, while the second refers to other events, but neither refers in any way to Servicios Notariales QC. Nor does the publication cited at folio 936 provide the information claimed by the judges, because that report of 28 de septiembre likewise does not refer to Servicios Notariales QC; moreover, by that date, the banking information unlawfully obtained in Panamá had already arrived. According to the appellants, it is evident that the press had received the derivative information so that it could readily assist with the investigation.

They also reject the contention that the interview with Mr. [Nombre085] on 27 de septiembre predates the unlawful evidence received from Panamá. They argue that the judges concluded that it was the banking data that opened new avenues in the investigation and led to the procurement of subsequent evidence.

Continuing their argument, they now examine how MR. [Nombre032]’S WRITTEN AND ORAL CONDUCT DOES NOT HAVE THE MAGICAL EFFECT OF REMOVING THE INVALIDITY IN THE PROCUREMENT OF THE BANKING EVIDENCE FROM PANAMÁ. This criticizes the possible curing of the evidence’s unlawfulness through Mr. [Nombre032]’s consent to the use of evidence that might be obtained through access to his accounts, based not only on the available written documentation but also on the oral statements he made at trial. According to the appellants—and this is their central argument—the evidence was obtained without a court order and entered the country on 10 de septiembre de 2004. With this evidence in the possession of the Ministerio Público, orders were issued to lift the bank secrecy of companies such as Servicios Notariales QC, charges were brought against the defendants (imputados), and interim measures (medidas cautelares) were requested.

It was not until 17 de mayo de 2010 that [Nombre032] granted authorization to obtain and use the banking information available in his bank account in Panamá, as the judges state at Folio 896 and as recorded in Evidence Item 759 at folio 13449 of the case record (autos). They challenge this authorization as an attempt to retroactively legitimize access to his accounts without a judge’s order and to erase the illegality already established by the Fiscalía’s conduct concerning this matter. They likewise challenge the attempt to prove [Nombre032]’s status as the account representative through the same disputed evidence item 588, particularly when he did so six years later. They also reject the theories concerning inevitable discovery (descubrimiento inevitable), notitia criminis, and inadvertent discovery (hallazgo casual), through which the court seeks to legitimize the use of evidence item 588, relying on arguments that cannot stand because the evidence was unlawful from its inception, making it impossible to use its information in the criminal proceedings (folios 173584 to 173586 of Volume XL).

Their claim is well-founded. The arguments for analyzing this legal issue have already been set out above in resolving the appeal filed by Dr. [Nombre012] (A-1). Accordingly, the same consequences arising from that determination for the accused [Nombre012] must be applied to the accused [Nombre015]: documentary evidence (prueba documental) No. 588 and all items of evidence dependent upon it are declared void; the criminal conviction entered against [Nombre015] is vacated; and, in its place, he is directly acquitted of all punishment and liability.

D. Defects in the determination of the facts and the assessment of the evidence (valoración de la prueba) used to establish the circumstantial evidence (indicios) that led to the conviction for the offense of Penalty for the Bribe-Giver (Penalidad del Corruptor).

1. Concerning the erroneous application of substantive law (ley sustantiva) with respect to Article 345 of the Código Penal.

In their first ground based on errors in the application of law (vicios in iudicando), the appellants argue that Mr. [Nombre015] cannot be convicted as a principal offender (autor) of the offense of Penalty for the Bribe-Giver for having promised to deliver a gratuity (dádiva) in exchange for the persons involved performing an act falling within their official duties. The subsequent delivery of the gratuity would be a nonpunishable act because it is independent, while the wrongful content of the conduct (contenido de injusto de la acción) is completed by the promise of the gratuity. The appellants begin with several observations regarding the systematic function of the statutory offense (tipo penal) and the conclusions that may be drawn from its statutory description and its role as a safeguard in criminal law. With regard to the offense of Penalty for the Bribe-Giver, which is the central focus of this section, they consider that the facts indicate the following: “…The provision corresponding to PENALTY FOR THE BRIBE-GIVER (currently Article 345 of the Código Penal) has been the subject of several direct or indirect amendments in recent years.

Considering the wording of the corresponding criminal offense (tipo penal) on the approximate date when the criminal acts found to have been established were committed (according to the findings deemed proven, as follows: [Nombre004]: offering of a bribe (dádiva) in late 2000 and early 2001; [Nombre001]: offering of a bribe in late 2000 and early 2001; [Nombre026]: offering of a bribe in late 2001; [Nombre027]: offering of a bribe between January and August 2001), this is an appropriate opportunity to highlight how the provision was worded at that time:

Article 345: The penalties established in the five preceding articles are applicable to anyone who gives or allows a public official to receive a gift or undue advantage.

It is important to note that Article 185 of Law 7732 of 17 de diciembre de 1997 amended the numbering of the Criminal Code and renumbered what had until then been Article 343 as Article 345. Subsequently, the provision of Article 343 bis was added to the Criminal Code by Law 8185 of 18 de diciembre de 2001, published in La Gaceta No. 10 of 15 de enero de 2002, concerning the Offering or Granting of Gifts or Compensation (Ofrecimiento u Otorgamiento de Dádivas o Retribuciones). This provision penalizes the specific conduct of anyone who offers a gift to a public official of ANOTHER State. Finally, it should also be noted that Article 1º of Law 8630 of 17 de enero del 2008 repealed Article 343 bis and amended Article 345, both of the Criminal Code, so that henceforth it reads as follows:

“Article 345.- Penalty for the bribe-giver (Penalidad del corruptor): The penalties established in the five preceding articles shall apply to anyone who gives, offers, or promises a public official a gift or undue advantage.”…” Regarding the protected legal interest (bien jurídico tutelado) in the offense of Penalty for the Briber (delito de Penalidad del Corruptor), several doctrinal observations are made. They begin with Muñoz Conde, who maintains that punishing this conduct protects the proper functioning of the public administration, which also includes the principle of impartiality applicable to public officials. The author ORTS BERENGUER, for his part, notes that this offense protects the principles of objectivity and impartiality in the administration. In Latin America, the Argentine author CREUS indicates that the venality of public officials is the object of protection. They also cite precedents from rulings of the Sala Tercera de Casación Penal, specifically Voto 183-95, which in turn reiterates what had already been held in 256-F-97, stating that what was protected was the “sound and normal functioning and prestige of the public administration through the honesty and integrity of its employees or servants…”.

Regarding the conduct prohibited by the criminal provision underlying the statutory offense definition (tipo penal), they suggest that a straightforward analysis of the criminalization shows that the prohibited conduct is giving or allowing a gift or undue advantage that the person provides to the public official. Regarding the history of this statutory offense definition as it relates to the prohibited conduct, they add the following: “…This is an appropriate opportunity to note that the relevant history regarding this article begins with the decision contained in Voto 461-91 of the Sala Constitucional de la Corte Suprema de Justicia. Insofar as relevant, it essentially established that article 343 of the Código Penal (345 subsequently) cannot be interpreted, without violating the constitutional principle of legality (principio de legalidad), to mean that what the legislature intended to say was ‘prometiere’ rather than ‘permitiere.’ The same case in which this Voto of the Sala Constitucional was ordered subsequently led the Sala Tercera de la Corte Suprema de Justicia to issue Voto 183-95, which stated, insofar as relevant, that the Sala Constitucional had established that it is not legitimate to read ‘prometiere’ where the text says ‘permitiere’; but the fact remains that it established nothing concerning the meaning of the words comprising the statutory offense definition: it does not tell us what we should or should not understand those words to mean.

And what the appellant maintains is precisely that, when the Sala Constitucional establishes that the verb ‘permitiere’ cannot be replaced by the word ‘prometiere,’ it is not excluding an ‘offer’ or ‘promise’ as possible semantic content of the word ‘diere’ set forth in the aforementioned provision of the Código Penal. Consulting various dictionaries supports the appellant’s position; accordingly, it must be agreed that anyone who promises, offers, or proposes to a public official a present or future gift so that the official will perform an act contrary to his duties (or engage in any of the circumstances contemplated in articles 338 to 342 of the Código Penal) brings his conduct within the conduct contemplated and punished under article 343 of the Código Penal… The appellants reject this conclusion reached by the Sala de Casación Penal in its precedents and suggest that the provision underlying the statutory offense definition does not encompass the meanings ‘to propose, offer, or promise.’ This ground of appeal must be upheld.

Indeed, the word ‘permitiere’ cannot be given the criminal-law application that it would have if it said ‘prometiere,’ because this changes the meaning of the prohibition. The principle of criminal legality, established in article 39 of the Constitución Política and article one of the Código Penal, requires judges to exercise great care not to assume legislative functions, which would indeed occur, for example, by correcting possible errors in the publication of a law or advancing interpretations of the structure of the statutory offense definition that are aberrant in light of the conventional use of the terms. Attempting to interpret, for example, the verb ‘to give’ on the basis of contrived semantic elaborations that could depart from the correct interpretation of the term according to the conventional understanding of that verb could result in replacing the punitive objective of the criminal law, which is intended to be understood by those to whom the provision is addressed, and understood in such a manner that the prohibition is obeyed.

Accordingly, understanding the word ‘to give’ as though it meant ‘to promise’ or ‘to offer’ is an interpretation contrary to the principle of legality, both because it gives the semantic interpretation a twist that departs from the conventional use of that term and because it extends the scope of the statutory offense definition beyond the permissible boundaries of punishable conduct. Doing so would constitute an expansive interpretation (interpretación extensiva) of the contents of the statutory offense definition, which is prohibited by the Constitución Política, inspired as it is by several centuries of developing criminal-law safeguards intended to prevent this type of judicial action, which affects the legal certainty (seguridad jurídica) of the citizens of a democratic and social state governed by the rule of law, as Costa Rica is under the programmatic interpretation of article 1 of the Constitución Política.

The Sala Tercera de la Corte Suprema de Justicia itself, in Voto No. 580-F-91, expressed the view that the provision could not be given content or a meaning that the legislature had not contemplated: ‘III.- In the first substantive ground of the appeal, the appellant alleges violations of articles 1, 30, 31, 54, 343 and 339 of the Código Penal. The appellant asserts that the position of the Sala Constitucional is incorrect, because a harmonious reading of articles 343 and 339 of the Código Penal shows that the promise of a gift or undue advantage made to a public official so that the official will perform an act contrary to his duties, or refrain from performing or delay an act inherent to his functions, constitutes conduct satisfying the elements of an offense, unlawful and culpable (típico, antijurídico y culpable). This reasoning cannot be accepted, first because the verb used in the cited article 343 does not encompass a promise (diere o permitiere), and even if the legislature had intended to include a promise, based on the relationship drawn with 339 ibídem, the fact remains that what the provision says must prevail over what the legislature may have intended without stating it in the provision, in accordance with the constitutional principles of legality and definiteness (tipicidad).

Second, an interpretation different from that adopted by the Sala Constitucional in Sentencia N 461-91 del 27 de febrero de 1991 would likewise be inadmissible, insofar as it held that a promise was not included in the cited article 343, pursuant to article 13 of the Ley de la Jurisdicción Constitucional, which establishes that the case law of that Sala is binding erga omnes. For all the foregoing reasons, this ground of appeal must be denied.’ There are other votes that dissent from the position just cited, such as Voto 183-1995, which interprets the term ‘diere’ as encompassing the meanings ‘to propose, promise, and offer’; however, such positions are inconsistent with a constitutionally compliant application of statutory offense definitions. The appellants recall a dissenting opinion (voto salvado) by Dr. Javier Llobet, acting as a cassation judge, who stated the following in a ruling of the former Tribunal de Casación, Voto No. 27-2004: ‘…VI.-DISSENTING OPINION OF JUDGE LLOBET RODRÍGUEZ: The undersigned judge respectfully dissents from the majority insofar as it finds that the offense for which the accused was convicted was completed, considering instead that it remained at the attempted stage, in accordance with the description of the statutory offense of Penalty for the Briber established in article 343 of the Código Penal.

In reaching this conclusion, he finds that although the accused gave a gift, he did so during a police operation, whose fundamental purpose must be understood as verifying the unlawful act in which the accused had engaged by offering a gift to a staff attorney of the Sala Constitucional. The fact that this was a controlled operation precludes properly speaking of a completed offense; it must instead be deemed an attempt (tentativa), because offering the gift constitutes an act in execution of the offense. This view was previously outlined in the note by Justice Piza Escalante accompanying voto 461-91 del 27 de febrero de 1991 of the Sala Constitucional, and the Sala Tercera de la Corte Suprema de Justicia has referred to it in various rulings, although that Sala has generally issued judgments concerning facts similar to those in the present case on the basis that a completed offense occurred, through the use of the term ‘diere,’ finding that, according to the dictionary of the Real Academia, one of the meanings of ‘to give’ is ‘to offer.’ This is the position that the Sala has maintained since voto 183-F-95 del 24 de marzo de 1995, to which reference is made.

This judge, however, considers that the term ‘to give’ must be understood according to the concept used in ordinary language, as a consequence of the principle of legality, and that ‘to give’ must be understood as ‘to deliver,’ which is the first meaning found in the Diccionario de la Real Academia. Nevertheless, the act of offering a gift cannot be deemed unpunishable, because it already entails performing an act directly aimed at completing the offense, which could not be completed because the gift was ultimately rejected by the staff attorney of the Sala Constitucional and an operation was even set up to apprehend the accused (Art. 24 del Código Penal).’ (emphasis not in the original)…”. The position set forth in this dissenting opinion is the one endorsed by this Chamber, in the sense that the verb “to give” must be assigned its ordinary-language meaning and that its content would therefore be identical to “to donate” or “to deliver,” which are the first meanings in the Diccionario de la Real Academia Española de la Lengua.

The amendment of article 345 of the Código Penal through Ley 8630 was intended to correct this inconsistency in the legislative drafting, and thus, in 2008, the statutory offense definition was formulated to read: “Article 345. Penalty for the Briber: The penalties established in the preceding five articles shall apply to anyone who gives, offers, or promises a public official a gift or undue advantage.” The foregoing demonstrates the legislature’s intent to correct an error included in the previous formulation of the criminalization, which made it impossible to apply it to cases involving an offer or promise of remuneration, which should have been covered by the offense of Penalty for the Briber, both because of the way in which such acts occur in real life and because this formulation also encompasses a greater number of probable circumstances in which the offense may be committed. [Nombre015] is accused of promising a gift to [Nombre001], [Nombre004], [Nombre026] and [Nombre027], all of whom were public officials, for the purpose of carrying out acts inherent to their functions in connection with a contract in which the Administración Pública has an interest.

From this perspective, it must be declared that such actions do not constitute the offense punished by the provision of article 343 of the Código Penal at the time the criminal act was committed, or any other offense established by the Código Penal, not only because that is not the content of the prohibition, but also because, as has already been decided regarding the other co-defendants (coencartados), it has not been possible to determine what specific action was to be performed, or whether the gifts were rewards for an act already completed.

In other words, there is an effect favorable to [Nombre015]’s legal position arising from the lack of specificity of the acts alleged against the persons purportedly affected by the corrupt act, which must undoubtedly result in the annulment of the judgment and the entry of a judgment of acquittal (absolutoria). Moreover, consistently with democratic criminal law (derecho penal democrático), it cannot be found that the promise of the gratuity (dádiva) is independent of its delivery, since, for the person offering the bribe, both moments are unequivocal and inseparable, as that person seeks to impair the legally protected interest (bien jurídico penalmente protegido) in offenses against probity. Accordingly, for this reason as well, a judgment of acquittal must be entered in favor of [Nombre015].

XII.APPEAL BY THE DEFENDANT [Nombre021], FILED IN A SUBMISSION AUTHENTICATED BY ATTORNEY HUGO SANTAMARIA LAMICQ IN THE EXERCISE OF HIS SUBSTANTIVE DEFENSE, IS DECIDED. The defendant (imputado), [Nombre021], appeared before this Chamber to file an appeal on points of law (recurso de casación) and subsequently requested that his appeal be converted into an ordinary appeal (apelación). Of the grounds raised by the accused, [Nombre021], this Court of Appeal will first decide those defects that constitute fundamental grounds for vacating the judgment and acquitting the accused. First Section.- Defects that, in themselves, entail the nullity of the entire decision. A. The case is time-barred. In the First Ground of [Nombre021]’s appeal, he alleges the erroneous application of the statute-of-limitations rules (reglas de prescripción) established in Articles 31, 32, 33, 361(a), and 369 of the Code of Criminal Procedure (Código Procesal Penal).

He begins by noting that the Trial Court rejected the statute-of-limitations objection (excepción de prescripción) raised by [Nombre021]’s defense. However, the dissenting opinion (voto de minoría) of Judge Camacho Morales disagrees with this position, sustains the objection, and refers to the reasoning set forth in the dissenting opinion (voto disidente). He considers that the substantive issue concerns the application of Article 62 of Law No. 8422 of October 6, 2004, entitled the Law against Corruption and Illicit Enrichment in Public Office (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), hereinafter LCC, which entered into force on October 29 upon its publication in La Gaceta Number 212 of that date. According to the Trial Court itself, were it not for that provision, the case would already be time-barred; he therefore challenges this interpretation as incorrectly applying the statute-of-limitations rules contained in the procedural law (ley de rito) and in the LCC itself, as well as certain aspects of the erga omnes case law of the Constitutional Chamber (Sala Constitucional).

According to the majority opinion (voto de mayoría), because the limitation period was not reduced by half as established by Article 33, first paragraph, of the procedural law, purportedly due to the application of Article 62 of the LCC, the criminal prosecution (acción penal) would become time-barred on November 30, 2007, rather than on May 30, 2006. He therefore considers that the important issue is to determine whether Article 62 of the LCC applies to this case. In this regard, he begins his argument with the proposition expressed in the majority opinion, at folio 792, where it states that the judges do not agree with the defense’s contention that this concerns a reduction of the time limits governing the duration of the proceedings rather than an issue of the statute of limitations. The distinction matters because, if this concerns judicial control over the duration of the proceedings (control de la duración del proceso), it would involve vested rights (derechos adquiridos) of the defendant rather than issues of limitations or the application of procedural rules.

Control over the duration of the proceedings is a human-rights issue, insists the litigant (justiciable), [Nombre021], deriving from Article 41 of the Political Constitution (Constitución Política), insofar as it requires prompt justice. Increasing the time limits governing the duration of the proceedings to the detriment of defendants would constitute a retroactive application of the law impairing vested rights. Nevertheless, the judges joining the majority opinion depart from the defense’s position, which in turn rests on the arguments set forth in Voto 4397-99 at 16:06 hrs. on June 8, 1999, whose Considerando VI, which has erga omnes effect, explains that those periods are not strictly limitation periods but rather reductions of the time allowed for conducting the proceedings, in accordance with the principle of controlling their duration. Yet even if this position—which would prevent retroactive impairment of the litigant’s vested rights—were rejected, another position, likewise constitutional, holds that statute-of-limitations provisions may not be applied retroactively unless the legislature expressly provides for such retroactive application.

According to the appellant (recurrente), the Constitutional Chamber clearly established in Voto 4397-99 that laws govern prospectively and that their retrospective application would therefore be valid only under an express statutory mandate. In criminal procedure, the law would not be prohibited from applying retroactively if the law itself provides that it applies solely to pending cases. The ground must be sustained.

Article 62 of the Law against Corruption and Illicit Enrichment in Public Office does not expressly state that it must apply to pending cases or cases initiated in the future; it must therefore be interpreted consistently with the Political Constitution and the erga omnes case law of the Constitutional Chamber, under which the aforementioned legislation applies prospectively. In other words, Article 62 of the LCC would apply only to cases initiated after October 29, 2004. If the legislature intended to encompass cases pending on that date, it should have expressly stated so, thereby allowing the effects of the subsequent law to extend to all cases initiated before the law entered into force. The aforementioned law contains neither transitional provisions nor any explanation in its “Statement of Reasons” (Exposición de Motivos) supporting retroactive application of its provisions. On the contrary, the legislature’s wording reflects an intent to regulate prospectively, which is why it uses verb forms such as “shall become time-barred” and “shall govern,” which in Spanish denote the future.

Had the legislature intended otherwise, it should have expressed that intention clearly by referring to the retroactive effects of the subsequent procedural law. Judges are, indeed, barred from performing functions reserved to the legislature and may not construe the law as having effects that the procedural statute does not expressly provide for. This is especially true where a subsequent procedural law could have retroactive effects adverse to the litigant’s legal position by restricting his right to a defense (derecho de defensa), his rights to participate in the proceedings, his right to release from custody (excarcelación), or, as here, his right validly to assert that the limitation period in the criminal case has expired. Procedural laws are designed to operate prospectively; therefore, as a matter of sound reasoning and based on an interpretation consistent with the Political Constitution, only procedural provisions having a more lenient effect on the litigant’s legal position would apply retroactively.

In the present case, the accused (encartado), [Nombre021], gave his statement after October 29, 2004; however, the case had commenced before that date, and the statute’s provisions did not apply to it absent an express legislative provision, which does not exist in this case. Accordingly, the limitation period applicable to [Nombre021] would have expired on May 30, 2006, before the declaration that this case was subject to complex proceedings (declaratoria de trámite complejo) became final in July of that year or the preliminary hearing was convened in September 2007. Both procedural events occurred after the date on which the case should have been declared time-barred. Regarding the declaration that the case was subject to complex proceedings, this Chamber had already ruled against the retroactive effects attributed to that declaration. The reasoning supporting this conclusion was already set forth in the decision on the appeal filed by Dr. [Nombre012], to which reference is made to avoid unnecessary repetition. The case against [Nombre021] must therefore be declared time-barred, and he must be acquitted of the offense of Illicit Enrichment (Enriquecimiento Ilícito) with which he had been charged.

B. Tainted evidence (prueba espuria). In the second ground of the appeal filed by [Nombre021], he alleges the erroneous application of the provisions governing the lifting of bank secrecy (levantamiento del secreto bancario), with the result that the bank evidence used to establish deposits made for his benefit is unlawful and inadmissible as a basis for conviction. He argues that his defense counsel objected to the bank evidence from Bahamas. The Trial Court expressly ruled on this issue in Considerando II. H. 1. As he explains, that bank evidence from Banco de San José in Bahamas, requested in the CCSS-Fischel case and submitted as evidence in these proceedings under evidentiary items 543, 544, and 545, had been requested exclusively for the case known as CAJA-Fischel and not for these proceedings. He states that an alteration of the English translations removed the express restriction that the evidence would be used only in the CAJA-Fischel case, and that an attempt is being made to use it to prove that [Nombre021] received certificates of deposit funded with monies originating from ALCATEL and Servicios Notariales QC., which were deposited at BAC BAHAMAS BANK LIMITED in that country.

The defense’s position is that there was no court order authorizing the lifting of bank secrecy in the ICE-ALCATEL case. According to him, the Trial Court errs because it states that the evidence comes from Banco de San José in Bahamas, which is its first false assertion. It is not Banco de San José in Bahamas; it is an independent bank registered there and not a branch of BAC San José, as the majority of the Trial Court maliciously seeks to suggest. They are two different banks, rather than a mere branch of the same bank. He alleges that a letter rogatory (carta rogatoria) to Bahamas was required to request the bank evidence. Had it been Banco de San José itself, it would have been sufficient to request the information from BAC San José in this country. His claim is well-founded, and the ground must be sustained.

The bank domiciled in Bahamas is not a mere extension of BAC San José, but a bank established under the laws of another country; consequently, the procedure for obtaining banking information from that institution must be conducted through official channels and, of course, pursuant to a court order authorizing the lifting of bank secrecy. According to the majority opinion (fl. 874), the aforementioned bank evidence obtained for one criminal case could be used in criminal cases other than the one for which it was originally obtained. Such an interpretation would lead to the absurd conclusion that the Public Prosecutor’s Office (Ministerio Público) need only obtain judicial authorization for a single lifting of bank secrecy in order to use that information in countless criminal cases, even when unrelated to the case in which the intrusion was originally authorized. It is evident that this type of sensitive information must be requested, ordered, stored, used, and interpreted in a manner compatible with constitutional law.

The value and essential content of the constitutional right to privacy regarding this type of information cannot be diminished merely because of the prosecuting authority’s broader interest, particularly where it also seeks to use the information without the context of any prior investigation, without an express court order authorizing its acquisition for that purpose, and with effects in criminal cases that had not even been opened when the original criminal investigation was ordered. The probative utility of bank evidence must be authorized through an entire process of judicial request, acquisition, introduction, and assessment contextualized within the criminal case for which it was requested. This is fully consistent with an interpretation of the right to informational self-determination (autodeterminación informativa) as applied to financial information and to the effects of such information in proving a specific criminal act.

The order must assess the necessity, suitability, and proportionality in the strict sense of the information to be requested, taking into account the nature of the case, the sensitivity of the information, and the grounds for suspicion available at the procedural stage when the acquisition of the bank evidence is ordered.

In addition, the request must be expressly addressed to the banking institution that holds the information in its databases. The right to informational self-determination (autodeterminación informativa), recognized in Costa Rica’s constitutional framework under Article 24 of the Political Constitution, in full accordance with the erga omnes case law of the Constitutional Chamber (Sala Constitucional), requires a certain threshold of suspicion that an unlawful act has been committed and an assessment of the proportionality of the measure affecting fundamental rights before the information may be obtained. This must be assessed in each specific case, and therefore a request to lift bank secrecy (levantamiento del secreto bancario) cannot be generic and divorced from the case in which it is to be used. It is therefore evident that, if the evidence obtained in Bahamas cannot be used in the present case, the evidentiary connection to the deposits made for the benefit of [Nombre021] should be excluded because constitutional guarantees were infringed.

Now, the alleged correspondent banking relationship or reciprocal representation agreement between BAC San José and Bahamas Bank Limited is another important issue that has not been proven in this case; nor is it known whether those banks may exchange available account information merely upon an internal administrative request made in the ordinary course of their financial activities. The judgment states that the order lifting bank secrecy at Bac San José was sufficient to lift bank secrecy in Bahamas as well—that is, in another territorial jurisdiction and, of course, under other applicable laws. Bahamas Bank Limited, as the appellant correctly asserts, is not part of the Costa Rican banking system, and therefore an order lifting secrecy within the national system cannot affect a banking institution domiciled abroad. Arguing otherwise would suggest that an order issued for the national banking system would necessarily affect international banking in any geographical context, which is inconsistent, for example, with the different banking regulations governing financial activity in the various countries of the world.

Sending transfers from Costa Rica to another country does not make the banks receiving those transfers part of the national banking system. Their receipt of transfers is, of course, a commercial practice that has increasingly become regulated in order to prevent harm and losses to bank customers and to preserve the operation of the international transfer system. Accordingly, the evidence obtained without any correspondent banking agreement between the banks and without bank secrecy having been lifted renders the information unlawfully obtained and inadmissible as evidence in the criminal proceedings under review. Also applicable are the effects already considered regarding the appeal filed by defendants (justiciables) [Nombre001], [Nombre009], [Nombre015], and [Nombre021]. (Appeal appearing at folios 17264 to 17278 of Volume XXXVI), they seek in their pleading, authenticated by attorney José Miguel Villalobos Umaña, the nullification of item of evidence 588.

This appeal was analyzed in connection with the review of the challenge filed by attorneys Erick Ramos and Federico Morales on behalf of Mr. [Nombre015]. As stated there, the arguments for analyzing this legal issue have already been set out above, when ruling on the appeal filed by Dr. [Nombre012] (A-1). Accordingly, [Nombre021] must receive the same relief that this determination afforded [Nombre012]: documentary evidence No. 588 and all evidentiary materials dependent upon it are declared null and void; the criminal conviction entered against [Nombre021] is vacated; and, in its place, he is directly acquitted of all punishment and liability.

Second Section. Defects in the determination of the facts and the assessment of the evidence used to establish the circumstantial evidence (indicios) that led to the conviction for the offense of Illicit Enrichment (Enriquecimiento Ilícito).

A. Failure to provide a detailed determination of the facts that the court deemed proven, in violation of Article 369(b) of the CPP.

The accused alleges that he was charged with illicit enrichment through the receipt of gifts (dádivas). According to the judgment, in Considerando X, folio 1555 in fine and the following folios, the defendant (encartado) is offered a gift and is subsequently paid. In this regard, he challenges the attribution of an offer of a gift when such an offer is immaterial to the statutory definition of Illicit Enrichment. What is actually punishable is the receipt of the gift. The offer or promise of a gift is irrelevant to the criminal prohibition as it relates to this particular offense, although it is, of course, relevant to other offenses in which the offer of a gift is an element of the actus reus (tipo objetivo). This ground must be sustained.

The general argument of the appeal concerning the accused [Nombre021], as to the fourth, fifth, and sixth grounds, rests on two essential premises: first, that an offer of a gift and its acceptance by [Nombre021] were charged and proven, according to the Court. The Court therefore insists that a promise of remuneration (promesa remuneratoria) was made at a meeting at Café Ánfora in Hotel San José Palacio at 8:21 hrs. on August 17. Second, that Article 346(c) of the Criminal Code requires the delivery of gifts to occur while the recipient remains in office; in this regard, the issue concerns not only delivery in installments but also five deliveries of money made at times when [Nombre021] did not hold any public office.

In this regard, the appellant is correct: the determination of the facts proceeds from the mistaken premise that receipt of the potential gift required a prior offer. This is principally because the conviction was for illicit enrichment, an offense that has no connection—and should have none—with the offer of a gift, that is, a promise of remuneration. The offer of a gift is central, for example, to the offenses of Bribery (Cohecho) and Corruption (Corrupción), because in those offenses the receipt of a gift or acceptance of a promise of remuneration is directly intended to induce the performance of an act inherent to the official’s duties (passive bribery for a lawful act (cohecho impropio), Article 347 of the Criminal Code), or the performance of an act contrary to the official’s duties, or the failure or delay in performing an act inherent to those duties (passive bribery for an unlawful act (cohecho propio), Article 348 of the Criminal Code). Accordingly, when the criminalized conduct does not require a specific act or omission, it constitutes merely an act of illicit enrichment.

Now, facts predating the receipt of the gifts are alleged in order to link [Nombre021], specifically in time and place, to the alleged strategies aimed at securing the contract for the 400 thousand lines, in which [Nombre021]’s involvement may have been marginal or of little significance. In any event, the judgment does not determine what he did or failed to do; it merely attempts to establish [Nombre021]’s liability based on a meeting that, as already discussed and analyzed when ruling on the preceding appeals, was established by means of a restaurant-services voucher from Hotel San José Palacio. That document does not permit the content of the conversation on that occasion to be inferred, nor does it establish whether a gift was in fact promised. Events before and after that meeting do not permit the inference, with the certainty required for a conviction, that an unlawful promise was actually made and accepted by those who participated. Still less is there consistent evidence that [Nombre021] accepted a gift to be delivered in installments, which is the other element that must be considered in the analysis.

As discussed in the appeal, it would additionally be necessary to assess whether the mere receipt of the gift is circumstantial evidence that it had been accepted, as the Trial Court (Tribunal de Juicio) appears to infer. As the offense of Illicit Enrichment is defined in the Criminal Code, it does not require a prior promise, because it is a subsidiary offense (figura subsidiaria) that applies precisely when there is no evidence of an offense against the duties of public office. Criminal-policy considerations led to the introduction of illicit enrichment into the legal system in order to punish cases involving an increase in a public official’s assets when there is no evidence of the offense against the duties of public office that prompted that increase. It is a legal strategy intended to prevent such increases in assets from going unpunished and to bring to justice the officials who possess them. Hence the subsidiary nature of this offense, which would therefore be displaced when sufficient evidence exists that an offense against the duties of public office was committed. In the case of the criminal offense established in the Costa Rican Criminal Code, subsidiarity exists when passive bribery for a lawful or unlawful act has been proven. That is not the case with the conduct charged against [Nombre021].

Considerando X-D addresses the issue of receiving payment of the gift in installments. According to the circumstances that the judges signing the majority opinion deemed proven, there was allegedly an offer of 0.5% of the contract that might be obtained (folio 1570 of the judgment). The judgment does not specifically determine how that particular percentage was inferred, but it finds that payment of that 0.5% in installments was accepted that same day. This emphasis is unnecessary because the offense charged against [Nombre021] does not require a prior promise. Nevertheless, according to the judgment, not only was the gift promised at that meeting, but [Nombre021] also accepted it, although it remains unknown in exchange for what. The inference, the judges state, arises not only from the events occurring beforehand but also from those occurring afterward. There is no evidence in this regard: no one stated what was said at that meeting, which could have concerned any other matter, yet the majority opinion maintains a fixed conviction on the point.

This circumstance affects the defendant’s right of defense, not only because he had to defend himself against a circumstance unrelated to the statutory elements of the charged offense—namely, the promise of remuneration—while the conduct for which he was actually reproached was receipt of the gift. For that reason, the findings of fact regarding the criminal conduct constituting Illicit Enrichment are deficient and, on these grounds as well, render the judgment against him null and void.

B. The gifts were received when [Nombre021] did not hold the status of a public official.

There are two complaints concerning this issue: first, that there was an acceptance of a gift paid in installments, meaning that receipt of the gift was divided into installments. The offense under Article 346(c) requires that gifts be accepted while the recipient remains in office. It has been proven that [Nombre021] ceased to be a deputy on April 30, 2002, and therefore money received after that date would not fall within the criminal prohibition. There would be an issue, at least, with the certificates of deposit received in January 2002, when [Nombre021] was still a deputy. For the time being, however, this ground concerns the transfers and alleged gifts issued after April 30, 2002.

The strategy of the judgment of conviction would be to link [Nombre021] to the payments made after 30 de abril de 2002 as illicit enrichment (enriquecimiento ilícito), solely because he “accepted” them while serving as a member of the Legislative Assembly. In other words, [Nombre021], from the time he was a member of the Legislative Assembly, accepted gifts (dádivas) that would be paid in installments extending beyond his term as a legislator. The theory collapses under its own weight and affects the determination of the act of which he is accused, principally because that formulation of the criminal offense of illicit enrichment neither requires a prior promise nor could require one; moreover, there is no evidence that such a promise was made, since the circumstantial evidence (elementos indiciarios) in that regard is weak, ambiguous, and cannot withstand analysis under the rules of sound judicial reasoning (reglas de la sana crítica).

For this reason as well, the judgment must be vacated. Now, with respect to the payments received while [Nombre021] was still a member of the Legislative Assembly, the eighth ground of the defendant’s appeal addresses them, alleging ERRONEOUS ASSESSMENT OF THE EVIDENCE IN VIOLATION OF THE RULES OF SOUND JUDICIAL REASONING, IN BREACH OF ARTICLES 142, 184, AND 369 SUBSECTION D) OF THE CPP. First, he challenges the finding that six certificates were delivered to [Nombre021]. Considerando X-D refers to what it calls the second delivery of the gift to [Nombre021]. In its reasoning, the majority opinion adopts the theory that [Nombre021] received six investment certificates from ALCATEL through delivery by the company Servicios Notariales QC. The appellant insists that the judgment contains an error, because there were not six certificates, as stated at folio 1579, but rather four documents, whose numbers appear at folio 1580.

All were issued on 10 de enero del 2002, with a maturity date of 11 de febrero del mismo año, and purchased by the company QC from Banco Cuscatlán de Costa Rica for the sum of diez mil dólares each. At Folio 1580, the Judges state that those instruments were delivered by the accused [Nombre009] to the defendant [Nombre021], and that the latter accepted them from the former on 11 de febrero, their maturity date, and immediately endorsed and deposited them into his BAC San José account. The Judges refer to evidence item 417, which demonstrates only that [Nombre021] endorsed the instruments and deposited them into his account, but in no way proves that [Nombre009] delivered them to him or the date on which that event occurred; this renders the reasoning invalid because it is irrational and contrary to the rules of sound judicial reasoning. These were bearer instruments (títulos al portador), which circulate through mere delivery and whose transfer occurs without any need for endorsement on the reverse of the document, pursuant to Article 712 of the Código de Comercio.

Under this theory, then, the instruments were transferred by mere delivery (simple tradición), meaning that there is no record of their holder’s title, which means, for example, that the instrument cannot be replaced if lost, as one of the general rules derived from Article 712 of the Código de Comercio. It therefore cannot be established that they were received directly from [Nombre009], as the Judges seek to maintain. A one-month period elapsed between [Nombre009] withdrawing the instruments and [Nombre021] depositing them into his account, so it is possible that [Nombre009] delivered them to any other person, who in turn delivered them to another, and that this other person then conveyed them to [Nombre021], without it therefore being possible to presume that [Nombre009] gave them directly to [Nombre021]. The appellant challenges the legal view expressed by the Judges in citing Article 717 of the Código de Comercio, which was repealed 21 años ago, desde 1990, by Ley 7201.

That article merely stated that the instrument belongs to the person possessing it, which no one has disputed. And here good faith and valid title (justo título) are presumed, as is appropriate under the principle governing movable property. But the appellant suggests that it does not follow from this provision that the initial purchaser must be deemed to have delivered the instrument to the depositor. He also questions the Judges’ knowledge of commercial law when they state that “... the absence of a chain of transferors means that the instrument was transferred from the person who originated it to the person appearing as its holder before the teller or the respective officer of the banking institution; therefore, in this particular case, it is inferred that it passed from [Nombre009] to [Nombre021].” In other words, because a chain of transferors cannot be established, it must be assumed that the original purchaser was the person who delivered it to the final holder.

The appellant argues that this is not so and that it is true only of registered instruments (títulos nominativos), which are transferred by endorsement, and not of bearer instruments, as were those under examination. On this point, he explains: “...The very nature of these instruments is that there is no chain of transferors; that is why they are bearer instruments. Thus, what the two Judges find lacking is precisely what always occurs in this area: there is no chain of transferors because the documents are not endorsed. It therefore cannot be inferred from the foregoing that [Nombre009] was the person who delivered the documents to [Nombre021]. But the Judges also err when they state that, because the instruments bear a notation on the reverse indicating that they may be deposited only into [Nombre021]’s account, this shows that [Nombre009] delivered them to him. One thing has nothing to do with the other. [Nombre021] receives the instruments from an unidentified person and endorses the documents with that notation in order to deposit them into his account, without that circumstance in any way relating to [Nombre009]’s participation....” In general, he challenges the entire judicial inference that the deposit came from [Nombre009], considering it absurd to assume that, because the deposit was made into the same account as other transfers, the depositor therefore had to have been [Nombre009].

He maintains that this conclusion defies the rules of sound human understanding and the rules of commercial law. He considers that, because it cannot be presumed that [Nombre009] made the deposit, the acquisition must be regarded as lawful and legally valid, and the conduct would therefore not be punishable. In other words, the deliveries made while he was still a member of the Legislative Assembly, because of this uncertainty regarding receipt of the instruments and the channel through which they were delivered, would also require the judgment to be vacated, as indeed must be ordered. Indeed, the cited provision, Article 717 of the Código de Comercio, was repealed, together with other articles of the Código de Comercio, by Ley No. 7021 de 10 de octubre de 1990. As for the transfer of bearer instruments, it is clear that this occurs through mere delivery, in the sense that no prior endorsement is required, unlike in the case of registered instruments.

Accordingly, for bearer instruments, physical delivery alone is sufficient to effect their transfer. The absence of a chain of transferors is thus explained by the fact that bearer instruments need not be issued in favor of a specified person (Article 712 of the Código de Comercio) and because they are transferred by mere delivery, even when they do not contain the clause “to bearer” (“al portador”). Civil case law (cf. Voto 19-88 de la Sala Primera de la Corte Suprema de Justicia, de las trece horas del 11 de mayo de 1988) has held that delivery, as the handing over of the thing, does not by itself transfer ownership, because the delivery must still result from a legal transaction (negocio jurídico) producing those effects. It is here that the relevant doubt arises in favor of the defendant concerning the reason for that delivery or physical handing over of the documents delivered to him, because, as has been set out throughout this decision, there is reasonable doubt (duda razonable) regarding the reasons for delivering the documents.

The doubt raised regarding the connection between the accused [Nombre009] and the delivery of the documents to [Nombre021] is therefore supported by these two circumstances presented by the appellants: on the one hand, the expression “mere delivery” in Article 712 of the Código de Comercio, which should be understood to mean that no prior endorsement is required, although such endorsement is necessary as “title” for the transfer of registered instruments. For bearer documents, therefore, physical delivery is sufficient, and this fulfills the legal act contemplated by the provision. The absence of a chain of purchasers, which the commercial-law provision does not require, and the uncertainty regarding the legal basis for the deliveries of the documents also operate in the defendant’s favor and must be so declared. C. A repealed criminal offense was applied. The ninth ground of [Nombre021]’s appeal disputes the validity of the criminal offense applied in this case to convict him of illicit enrichment.

According to [Nombre021]’s theory, Article 346, subsection 3) of the Código Penal was implicitly repealed by Article 32 of Ley 6872 del 17 de junio de 1983, known as Ley sobre Enriquecimiento Ilícito de los Servidores Públicos. Under that theory, the 1983 legislation constituted a special law governing the general subject matter of the Código Penal and would therefore repeal the criminal offenses previously contained in that Code that became part of the new legislation. Article 26 of this 1983 law contains several more specific elements. First, the penalty ranges from seis meses to seis años, and second, it subjected acts committed by a former public official within the year following departure from office to criminal punishment. Article 26 is plainly much more specific and contains elements encompassing a wider variety of conduct, defining as illicit enrichment not only the acquisition of property of any kind or nature, but also including a general provision encompassing any receipt of money or property.

The ground must be upheld. It is evident that the criminal provision in Article 346 of the Código Penal was repealed by Article 26 of the 1983 Law, which not only contains a description of the act of illicit enrichment but also adds more specific circumstances encompassing additional forms of receiving property, services, money, etc., which are subject to a greater penalty. Contrary to the Majority Tribunal’s statement, these are not two distinct forms of conduct that may coexist because they encompass different statutory circumstances; they are two offenses of illicit enrichment, one general and the other specific, set forth in a later law that, under the rules of criminal-law interpretation, would repeal the general law and require application of the special law. Sala Constitucional itself, in Voto No. 11584-2001, considered that some subsections of Article 346 had been repealed by Ley No. 6872 de 1983, and that the Judges should expressly determine in each case whether those subsections applied, as is now done by finding that the criminal offense under Article 346 of the Código Penal was repealed and is inapplicable to the case against [Nombre021].

Now, having determined that the applicable provision is Article 26 of Ley No. 6872 de 1983, it must be borne in mind that subsections a) and c) of that criminal offense were declared unconstitutional by Sala Constitucional in Voto No. 1707-95 de las 15:39 horas del 28 de marzo de 1995; they would therefore be inapplicable to this case, and [Nombre021]’s actions would not constitute a criminal offense.

It was not until the entry into force of Article 45 of Ley 8422 of October 6, 2004, effective as of the 29th of that month, that an increase in assets while holding office was again criminalized. This provision is not applicable to the alleged acts because it is a substantive rule that entered into force after those acts, pursuant to Article 11 of the Criminal Code. Accordingly, the criminal provision underlying the charge of illicit enrichment (Enriquecimiento Ilícito) has been repealed, and the judgment of conviction must therefore be vacated and [Nombre021] acquitted of all punishment and liability for the acts attributed to him. Nevertheless, there is another reason, raised in the tenth ground of the appeal, that renders the judgment null and void: the application of Article 346, subsection 3), in violation of the binding interpretation of the Constitutional Chamber (Sala Constitucional).

If that article were deemed to remain in force—which it does not, by virtue of the foregoing reasoning—then the cited subsection must be interpreted in accordance with the erga omnes precedents of the Constitutional Chamber, as required by Article 13 of the Constitutional Jurisdiction Act (Ley de la Jurisdicción Constitucional). Under subsection 3) of the cited Article 346 of the Criminal Code, any gift presented or offered in consideration of a public official’s office becomes unlawful, even if the official has not performed any lawful or unlawful act, whether inherent in or contrary to his duties. Mere receipt of the gift is already a criminal offense. Since voto 1707-95, cited above, the Constitutional Chamber, in its Considerando III, has required the prosecuting authority to prove the unlawful origin of a public servant’s assets; it is not sufficient to prove the receipt of money, much less to require the accused to prove its lawful origin.

In doing so, the Chamber relied on the explanation given in Voto 5171-93 and upheld it unequivocally, and therefore declared unconstitutional the provisions of Ley 6872 that had replaced the offense of illicit enrichment. But the Constitutional Chamber was even clearer in its Voto 11584-01 of 8:53 a.m. on November 9, 2001, when, through an optional legislative consultation (consulta legislativa facultativa), it reviewed the Anti-Corruption Bill that gave rise to Ley 8422. At the end of Considerando IV, the Chamber, in an opinion drafted by Justice Arguedas Ramírez, states that the Constitution is violated when an attempt is made to punish an official merely because of an increase in assets WITHOUT PROOF THAT SUCH INCREASE IS CONNECTED TO UNLAWFUL ACTIVITY, thereby infringing the presumption of innocence (principio de inocencia) by indirectly requiring the official to prove the origin of his property.

In this respect, the appeal must also be granted. It is not enough to establish that the official’s assets increased; it must be shown that the increase was the product of unlawful activity, because otherwise the burden of proof would be reversed and the official would have to prove the origin of that increase in assets. Maintaining that this is permissible directly contradicts the precedents of the Constitutional Chamber cited by the appellant and provides yet another ground for vacating the judgment. D. The ordered forfeiture (comiso) of CERTIFICATE NUMBER [Valor026] RENEWED ON [Valor027], WITHOUT ANY BASIS, REASONING, OR SUPPORT WHATSOEVER, is invalid. [Nombre021] challenges the forfeiture of CERTIFICATE NUMBER [Valor026] RENEWED ON [Valor027], because the trial court provides no basis either for why forfeiture was ordered or for its causal relationship to the act. He argues that merely reciting Article 110 of the Criminal Code is insufficient to provide an adequate statement of reasons in this respect.

The court must explain its reasoning and why the items are regarded as means or instrumentalities used to commit the act, or as its proceeds or profits. Only at folios 1896 through 1898 does the court address the forfeiture requests made in their closing arguments by both the Public Prosecutor’s Office (Ministerio Público) and the Office of the Attorney General of the Republic (Procuraduría General de la República). Item 9 includes a term-deposit certificate bearing number [Valor027], but neither describes it nor states its nature or the reason for its inclusion. At the beginning of folio 1897, the majority’s position is summarized, stating that the effects of the offense, the means or instrumentalities used in its preparation and commission, and the profits derived from its commission are forfeited; this is nothing more than a repetition of Article 110 of the Criminal Code. All of this leaves an important aspect of the judgment without a statement of reasons and makes it impossible to know the criterion on which the decision to forfeit that certificate was based.

His claim is well-founded, and the ordered forfeiture must be vacated. As already stated, merely citing Article 110 of the Criminal Code does not provide sufficient grounds for ordering the forfeiture of property to the State. The majority judges’ decision must therefore be vacated, the forfeiture declared improper, and the corresponding sum ordered returned to its lawful owner. F. There is no discussion of the civil claims (acciones civiles) or of the award of costs against the civil claimants (actores civiles). It is alleged that the civil claims for damages (acciones civiles resarcitorias) were not dismissed and that the parties were generously directed to pursue their claims in ordinary civil proceedings. He states that defense counsel opposed the civil claims brought by the public institutions, particularly those concerning defendant [Nombre021]. This is despite the statement that ICE’s civil claim lacks a factual basis supporting its requested relief, which also prevents the trial court from ruling on its merits (cf. fol. 1862).

The defects in the civil claim concerning the appellant are identified at folio 1877. He considers that the legally correct course would have been to dismiss the civil claim and award costs, rather than conclude that a legal avenue remained available for bringing the claim in ordinary proceedings. Regarding the civil claim filed by the Procuraduría General, the trial court even states at Folio 1884 that “... the conclusion is reached that there is no social harm for which all the accused and, potentially, third parties must be held jointly and severally liable.” Additional errors in that claim are identified later, including that the Court would effectively have to perform the civil claimant’s work, as Folios 1887 and the final paragraph of 1890 make entirely clear. He argues that, given those errors, the proper course would have been to dismiss the claim and award costs, but the Court preferred to “lend a helping hand” to the civil claimants.

He therefore requests that the ruling be vacated and that both civil claims be deemed dismissed for failure to satisfy the minimum requirements for consideration. He insists that the proper course in this case is to award costs against the civil claimants under Article 270 of the Code of Criminal Procedure, in light of the numerous errors and defects that the judges themselves acknowledge in their filings. He further emphasizes that the trial court failed to perform its statutory duty because, however complex the case may be said to be, the civil defendants cannot be blamed for having contributed to the failure of the claims by not identifying those errors in a timely manner, since that was not their responsibility. He believes that, under the rule of law (Estado de Derecho), a multimillion-dollar claim riddled with digressions and legal errors cannot be permitted to proceed without consequences.

If it were, civil claimants could never be ordered to pay costs, regardless of their conduct. In complex cases such as this one, civil claimants must exercise even greater care when filing their claims and conducting the litigation. It is evident that the civil claims should have been dismissed, rather than the court merely declining to rule on them, as indicated in the preceding point. He requests that the civil claimants’ exemption from costs be vacated and that they be ordered to pay costs as required by the applicable legislation. The issue of the award of costs and the issue of the civil claims must be resolved in a new trial addressing those matters. This Chamber has already ruled on the civil claims for damages, the absence of an award of costs, and the majority trial court’s interpretation of this issue when deciding Christian Arguedas’s appeal on behalf of Dr. [Nombre012]. It held that the disposition of the matter constituted a manifest denial of access to justice based on formalities that have no support in Article 112, subsection d), of the Code of Criminal Procedure, an error that must be corrected.

The failure to rule on the merits of the civil claims brought by the Instituto Costarricense de Electricidad and the Procuraduría General de la República must also be corrected. Likewise, on remand (juicio de reenvío), a determination must be made regarding costs and whether there was a plausible basis for litigating: the failure to decide the merits of the civil claims caused an error affecting the determination of costs, which undoubtedly prejudices the parties. Accordingly, when ruling on the appeal filed by attorney Arguedas, it was held that the effects of his challenge also benefit the other civil co-defendants, because it is not based on exclusively personal grounds. The judgment has therefore already been vacated with respect to its civil aspects insofar as it declined to rule on the substantive rights at issue in connection with the civil claims filed, as well as with respect to its ruling on costs, and the case is remanded to the court of competent jurisdiction for new proceedings on those matters.

XIII. THE APPEAL FILED BY ATTORNEY HUGO SANTAMARÍA LAMICQ ON BEHALF OF THE ACCUSED [Nombre018] (DECEASED) IS DECIDED

A. Attorney Hugo Santamaría Lamicq, in his capacity as defense counsel for the accused [Nombre018] (deceased), filed a cassation appeal (recurso de casación) against Judgment Nº 167-2011, issued at 15:00 hours on 27 de abril de 2011 by the Criminal Court for Treasury and Public Service Matters of the Second Judicial Circuit of San José, with respect to both the criminal and civil aspects thereof. As grounds concerning the criminal conviction, he alleged violation of due process and failure to state the grounds for the judgment, due to the admission of unlawfully obtained evidence; failure to observe the in dubio pro reo principle, as well as violation of the rules of sound judicial reasoning (sana crítica); unlawful reasoning due to the failure to assess evidence of decisive value to the resolution of the case; erroneous application of Articles 345 and 341 of the Criminal Code, in violation of Article 2 of the Organic Law of the Judiciary and Articles 39, 41, 46 in fine, and 154 of the Political Constitution; failure to state the grounds for the sentence imposed and infringement of the principle of proportionality; and also failure to state the grounds for the award of personal costs (costas personales).

Regarding the civil judgment, he alleges as the sole ground for challenge: “Failure to state the grounds for the judgment. Unlawful failure to rule on the civil action for damages (acción civil resarcitoria) brought by the Procuraduría General de la República. Violation of the Principle of Congruence due to Citra Petita. Violation of due process and the principles of effective judicial protection and access to justice. Violation of Articles 1, 142, 184, 361, 363, and 369 of the Code of Criminal Procedure, Articles 2, 5, 152, and 153 of the Organic Law of the Judiciary; Articles 39 and 41 of the Political Constitution; and Articles 155 and 277 of the Code of Civil Procedure” (Cf. folio 17048 verso and 17049 recto.) He explains that the trial court failed to rule on the civil action for damages brought by the Procuraduría General de la República against his client, based on the following arguments: (i) Not all of the accused had participated in the alleged criminal acts.

(ii) Therefore, there was no harm for which all the accused and, potentially, third parties should be jointly and severally liable. (iii) It was necessary to specify the harm and claims for each “group of jointly and severally liable parties” (as determined in the judgment), rather than proceeding as was done, by providing an overall estimate and seeking judgment as though all the defendants and legal entities involved were jointly and severally liable for the total harm. (iv) In claiming social harm, the Procuraduría General de la República could not demand full joint and several liability from all the civil defendants without differentiating each case among the various groups of joint and several debtors. (v) A ruling on the matter would have required the Court to separate the different groups of joint and several debtors in order to specify the acts attributed to them and, consequently, the harm they may have caused to the Instituto Costarricense de Electricidad and to the collective and diffuse interests represented by the Procuraduría General de la República.

Had the Court undertaken that task, it would have become involved in functions belonging to the civil plaintiff, thereby compromising the objectivity of the judges and violating due process. (vi) The civil defendants did not allege the defects in the civil action at earlier stages and therefore bear some responsibility for the Court’s inability to rule on the merits of the allegations, claims, and defenses asserted. (vii) He alleges the existence of defective procedural activity (actividad procesal defectuosa) that cannot be cured. The petitioner states that, if the claims in the civil action were defective, it is impermissible to expect the civil defendant to raise the issue; on the contrary, if the civil plaintiff acted deficiently, that is its responsibility, in accordance with the party-presentation principle (principio dispositivo) and its corollaries: the subprinciples of disposition by the interested party, party initiative, congruence, and waiver.

Regarding joint and several liability and the determination of whether the plaintiff’s claims should be granted, “… it is clear that these are substantive matters that must ultimately be determined by the Judges in accordance with the facts found proven in the case, and not a formal defect concerning the admission or processing of the civil action that should have been identified for correction pursuant to the curing rules under Article 15 of the Code of Criminal Procedure.” (Cf. folio 17052). He later adds: “If, according to the facts found proven by the sentencing court, ‘there is no harm for which all the accused and, potentially, third parties are jointly and severally liable,’ and it is determined that the Procuraduría General de la República ‘could not demand full joint and several liability from all the civil defendants without differentiating, as required in this case, among the different groups of debtors,’ it is true that under no circumstances is it the court’s responsibility ‘to separate the different groups of joint and several debtors, determine the specific acts attributable to them, and determine the potential harm that those acts may have caused.’ Indeed, it cannot do so by virtue of the principle of congruence, the party-presentation principle, and respect for the civil defendant’s right of defense.

From this perspective, and given that the ‘defects’ identified by the court are substantive in nature, the court should have rendered a final determination on the civil claims based on the evidence in the record” (Cf. folio 17052). He challenges the court’s position because, in his view, substantive defects such as those invoked could not be subject to curing; rather, the situation described by the court required it to rule on the merits of the civil actions filed. He adds: “… the court must rule in accordance with what the parties alleged and proved: The judge knows no facts other than those invoked by the parties and no evidence other than that which they submit. The judgment must remain within the limits of the claims asserted by the plaintiff and the matters acknowledged or contested by the defendant; if it goes beyond those limits, it will be ultra petita if it grants more than was requested, or extra petita if it rules on matters outside those requested, and both circumstances render the judgment null and void because they violate the party-presentation principle by producing incongruent judgments.

For that reason, this characteristic has been called the ‘principle of congruence’ of judgments, under which the court must rule on everything the parties request, but neither more nor less…” (Cf. folio 17054). He states that, in addition to incongruence due to extra or ultra petita, there is incongruence due to citra petita (or minima petita), which occurs when one of the requested issues is left unresolved, in violation of Article 155 of the Code of Civil Procedure, which provides: “judgments must resolve each and every issue that has been the subject of the dispute…”; this is also governed by Article 361(e) of the Code of Criminal Procedure with respect to deliberation and voting. All of this creates a defect in the ruling, as established in Article 369(g), in relation to Articles 361(e) and 363 of the Code of Criminal Procedure. Therefore, the court should have ruled and, in view of the errors committed, dismissed the civil action, with the petitioner bearing the consequences of its negligent conduct.

He explains that, as a result of the request filed by that party, a prejudgment attachment (embargo preventivo) was ordered against assets owned by [Nombre018], specifically the property recorded in the Public Property Registry, Province of San José, under number [Valor052], and vehicles bearing license plates [Valor053], [Valor054], [Valor055], and [Valor056]. This caused him loss and damage because his assets were immobilized and he was unable to dispose of them freely. Furthermore, dismissal of the civil claims should have resulted in an award of damages against the petitioner. He states: “The unlawful maneuver carried out by the court in failing to rule on the merits of the civil action for damages has the purpose and effect of denying the clearly warranted award of damages. Thus, although the attachments are ordered lifted, the court provides that ‘because no ruling was made on the merits of the civil actions and the claims asserted, the complaint has not been definitively dismissed, which is the statutory prerequisite for an award of damages; on the contrary, the parties may resolve their differences in civil proceedings, such that the circumstances of this proceeding do not fully conform to Article 277 of the Code of Civil Procedure, and it is not possible to extend the scope of Article 277 of the Code of Civil Procedure through interpretation, because doing so would entail an expansive interpretation of a punitive provision.’ The unlawful referral to another jurisdiction prevents the fair compensation ordered by procedural law for the harm to property described above.

In this manner, the court deliberately and unlawfully releases the civil plaintiff from compensating for the loss and damage caused, leaving it to the plaintiff’s discretion whether to resort to another proceeding, thereby preventing the compensation due.” (Cf. folios 17057 and 17058). He requests that the challenged judgment be reversed on this issue, that the civil action for damages filed against [Nombre018] (deceased) be dismissed, and that the Procuraduría General de la República be ordered to pay the loss and damage caused by the prejudgment attachment ordered. In the alternative, he requests that the judgment be annulled in this respect and that the case be remanded.

B. Subsequently, following the death of the accused [Nombre018] (deceased), attorney Hugo Santamaría Lamicq requested entry of a final dismissal (sobreseimiento definitivo) in favor of his client (cf. folios 171948 and 171949, 171980, 173380 to 173382). The petitioner explains that the accused [Nombre018] died at 23:20 hours on 17 de noviembre de 2011, as shown in Death Declaration Certificate number 118392 (which he attaches); therefore, the proper course is to enter a final dismissal due to extinguishment of the criminal action, because Judgment Nº 167-2011, issued by the Criminal Court for Treasury and Public Service Matters of the Second Judicial Circuit of San José, did not become final because a cassation appeal was filed against it. The foregoing is pursuant to Article 30(a), in relation to Article 311(d), of the Code of Criminal Procedure. Regarding the civil action for damages, he states that because it cannot survive under the principle of ancillary jurisdiction (principio de accesoriedad), he requests the immediate lifting of the attachments sought by the Procuraduría General de la República against the property recorded in the Public Property Registry, Province of San José, under number [Valor052], and vehicles bearing license plates [Valor053], [Valor054], and [Valor056].

In addition, he requests that the mortgage granted in connection with a precautionary measure (medida cautelar) that is no longer in effect be canceled, adding: “By a ruling issued at dieciséis horas con veinte minutos del ocho de noviembre de 2004 by the Juzgado Penal del Segundo Circuito Judicial de San José, my client was ordered, among other precautionary measures, to post security in rem (caución real) in the amount of 200 mil dólares (moneda estadounidense), which was provided by granting a first-priority mortgage on the property recorded in the Registro Público de la Propiedad, Provincia de San José, under number [Valor052], in favor of the Corte Suprema de Justicia for that amount. That precautionary measure was lifted in el año dos mil ocho, but the corresponding encumbrance was not canceled” (Cfr. folio 171949). He requests a ruling on the motion, for which it is necessary only to verify the death of [Nombre018] (deceased).

THE APPEAL FILED IS HEREBY DECIDED. First Section.—The request for dismissal with prejudice (sobreseimiento) due to extinguishment of the criminal action (extinción de la acción penal) is granted.— To decide the request for dismissal with prejudice, the following matters must be considered: (i) The defendant [Nombre018] (deceased) was charged with the acts described throughout the indictment filed by the Ministerio Público (de folio 422 a 434), which was admitted by the Juzgado Penal de Hacienda y la Función Pública in a ruling issued at las dieciséis horas del siete de octubre de dos mil ocho (cfr. folios 10421 a 10816). (ii) Following the oral and public trial, [Nombre018] (deceased) was found, by majority vote, to be “… a responsible co-perpetrator of one offense of PENALTY FOR THE CORRUPTOR (PENALIDAD DEL CORRUPTOR) for AGGRAVATED CORRUPTION (CORRUPCIÓN AGRAVADA), in the form of PASSIVE IMPROPER BRIBERY (COHECHO IMPROPIO), with respect to [Nombre027], and the responsible perpetrator of one offense of PENALTY FOR THE CORRUPTOR for ACTIVE BRIBERY (COHECHO PROPIO), in relation to [Nombre026], both to the detriment of PROBITY IN PUBLIC OFFICE (PROBIDAD EN LA FUNCIÓN PÚBLICA), and was sentenced to CINCO AÑOS DE PRISIÓN for the first offense and CINCO AÑOS DE PRISIÓN for the second, for a total of DIEZ AÑOS DE PRISIÓN, a sentence to be served at the place and in the manner determined by the applicable prison regulations, after crediting any pretrial detention served.” (iii) Attorney Hugo Santamaría Lamicq, acting as defense counsel for the accused [Nombre018] (deceased), appealed that judgment.

(iv) The defendant [Nombre018] (deceased) died in San José, in the intensive care unit of Hospital San Juan de Dios, at las 23:20 horas del 17 de noviembre de 2011, from respiratory failure and exacerbation of COPD, COPD IV (Cfr. folios 171950 y 171981). (v) In addition to the argument presented by defense counsel for the accused, this Chamber observes that an additional ground for extinguishment of the criminal action has arisen: the statute of limitations (prescripción). Under the parameters set forth supra concerning the statute of limitations for criminal actions, the initial limitations period applicable to the accused [Nombre018] (deceased) was cinco años for the offense of penalty for the corruptor for aggravated corruption in the form of passive improper bribery (pursuant to articles 31 of the Código Procesal Penal and 340, 342 y 345 of the Código Penal, because the maximum sentence is cinco años); whereas, for the offense of penalty for the corruptor for active bribery, the limitations period is seis años (pursuant to articles 31 of the Código Procesal Penal and 341 y 345 of the Código Penal).

Because article 62 of Ley Nº 8422 cannot be applied, it must be considered that, after the criminal proceedings commenced, those periods (cinco y seis años, respectively) were reduced by half for purposes of interruption and suspension of the statute of limitations (that is, dos años y medio, y tres, respectively). The record shows that the accused [Nombre018] (deceased) was examined as a suspect (indagado) on el día primero de noviembre de dos mil cuatro (cfr. folio 767, Tomo II), and that the next event interrupting the statute of limitations occurred when the preliminary hearing (audiencia preliminar) was first scheduled (as provided in article 33 of the Código Procesal Penal), a procedural act that occurred on el diez de setiembre de dos mil siete (ruling issued at las trece y treinta horas del diez de diciembre de dos mil siete, folios 8452 y 8453, Tomo XX). Consequently, the criminal action was extinguished, but only as to the first of the charged offenses, namely, the offense of penalty for the corruptor for aggravated corruption in the form of passive improper bribery.

In any event, the death of the defendant [Nombre018] (deceased) having been established, pursuant to subsection a) of article 30 of the Código Procesal Penal, the criminal action brought against him is declared extinguished; consequently, in accordance with article 311, subsections d) and e), of that same body of law, a final dismissal with prejudice (sobreseimiento definitivo) is entered in his favor as to one offense of PENALTY FOR THE CORRUPTOR for AGGRAVATED CORRUPTION, in the form of PASSIVE IMPROPER BRIBERY, with respect to [Nombre027], and one offense of PENALTY FOR THE CORRUPTOR for ACTIVE BRIBERY, in relation to [Nombre026], both to the detriment of PROBITY IN PUBLIC OFFICE. In view of this ruling and in the interest of procedural economy (economía procesal), no ruling is issued on the grounds of appeal concerning the criminal liability of the accused [Nombre018] (deceased). Second Section.—Regarding the civil claims (extremos civiles).— With respect to the civil claims asserted, this Chamber has already sustained the objections raised by attorney Cristian Arguedas Arguedas, who challenged the trial court’s decision not to rule on the civil actions filed by the Procuraduría General de la República and the Instituto Costarricense de Electricidad; the extension of favorable effects to other parties (efecto extensivo) was applied, and the case was remanded (reenvío) for new proceedings in accordance with law on those claims.

However, as has been held on other occasions (Cfr. del Tribunal de Casación Penal, votos Nº 492-F-1998, de las diez horas veinte minutos del trece de julio de mil novecientos noventa y ocho; Nº 437-2006 de las nueve horas del doce de mayo de dos mil seis; así como de la Sala Tercera de la Corte Suprema de Justicia, votos Nº 861-2002, de las diez horas del treinta de agosto de dos mil dos y Nº 67-2004, de las once horas cinco minutos del seis de febrero de dos mil cuatro), a judgment of dismissal with prejudice or acquittal does not preclude a ruling on the civil action or require its automatic dismissal. Moreover, the Sala Constitucional de la Corte Suprema de Justicia, in voto Nº 3603-93 de las catorce horas y dos minutos del veintisiete de julio de mil novecientos noventa y tres, held that granting a civil action for damages (acción civil resarcitoria) in a judgment of acquittal did not violate the guarantee of due process or the right of defense: “THIRD: Regarding the matter under review, this Chamber considers that the challenged judgment does not violate any principle of due process, because articles 11 and 398 of the Código de Procedimientos Penales provide the necessary legal basis for the judge to rule on the Civil Action for Damages and grant it even when the judgment is one of acquittal.

FOURTH: A judgment of acquittal may be rendered under several circumstances, but in every such case what is declared is that the defendant is not subject to punishment, without this necessarily constituting a finding of innocence, since that is not true in every case of acquittal. Thus, an acquittal no longer necessarily means that no offense existed; instead, it has evolved into a doctrine of a negative nature, the substance of which is that the defendant is not punishable. Nevertheless, because criminal and civil actions are different and independent from one another and proceed together solely for reasons of procedural economy, an acquittal on the criminal action does not mean that the defendant must also prevail on the civil action. Accordingly, an acquittal for purely criminal-law reasons does not bar a ruling on the civil action, specifically an order granting it by the criminal court, pursuant to article 11 of the Código de Procedimientos Penales, which, read together with article 398 of that same body of law, authorizes the judge, even when acquitting the defendant, to order the requested restitution, compensation, or reparation.

Accordingly, the judge’s application of those articles constitutes compliance with the principle of legality, a fundamental guarantee forming part of Due Process. It therefore cannot be maintained that the Court failed to comply with Due Process, because its actions are fully supported by procedural rules.” Although the foregoing quotation refers to provisions of the Código de Procedimientos Penales, it is fully applicable to the current Código Procesal Penal. On this subject, the third paragraph of article 40 of that body of law provides: “A judgment of acquittal shall not prevent the court from ruling, where appropriate, on a civil action for damages that was validly pursued.” This rule is equally applicable to judgments of final dismissal with prejudice, whether due to expiration of the statute of limitations for the criminal action (because the grounds for civil prescription differ from those established in criminal matters) or due to the death of the civil defendant (demandado civil), although in the latter case the procedure established in the civil courts must be followed so that the estate of the civil defendant [Nombre018] (deceased) is represented in the criminal proceedings.

This position is consistent with article 96 of the Código Penal: “… The extinguishment of the criminal action and of the sentence shall have no effect on the obligation to repair the harm caused, nor shall it prevent forfeiture (decomiso) of the instrumentalities of the offense.” In the interest of procedural economy, no express ruling is issued on the objections raised, because they concern substantive matters that must be examined in the remand already ordered regarding the claims asserted in the relevant civil action for damages. Third Section.—Regarding attachments and other matters. Attorney Hugo Santamaría Lamicq requests the lifting of the attachments (embargos) sought by the Procuraduría General de la República against the property recorded in the Registro Público de la Propiedad, provincia de San José, under number [Valor052], and the vehicles bearing license plates [Valor053], [Valor054] y [Valor056].

He also requests that the mortgage granted in connection with a precautionary measure that is no longer in effect be canceled, adding: “By a ruling issued at dieciséis horas con veinte minutos del ocho de noviembre de 2004 by the Juzgado Penal del Segundo Circuito Judicial de San José, my client was ordered, among other precautionary measures, to post security in rem in the amount of 200 mil dólares (moneda estadounidense), which was provided by granting a first-priority mortgage on the property recorded in the Registro Público de la Propiedad, Provincia de San José, under number [Valor052], in favor of the Corte Suprema de Justicia for that amount. That precautionary measure was lifted in el año dos mil ocho, but the corresponding encumbrance was not canceled” (Cfr. folio 171949).

In the case under review (sub examine), this Chamber verified that, in fact, by resolution issued at catorce horas con treinta minutos on once de marzo de dos mil cinco, the Criminal Court (Juzgado Penal) of this judicial circuit granted the attachment (embargo) requested by the Office of the Attorney General of the Republic (Procuraduría General de la República) and, with respect to the accused [Nombre018] (deceased), ordered the attachment of the following property:

• 1)Volkswagen vehicle, model 2001, license plates [Valor053];
• 2)BMW vehicle, model 1989, license plates [Valor054];
• 3)Mercedes Benz vehicle, model 1985, license plates [Valor055];
• 4)Toyota vehicle, model 1976, license plates [Valor057];
• 5)properties in the San José Land Registry District (Partido de San José), registration numbers [Valor058] and [Valor052] (cf. folio 84 of the Record of the Civil Damages Action (Legajo de acción civil resarcitoria)). However, in a subsequent resolution (issued at once horas on veintiuno de julio de dos mil cinco, folio 311 of the record of the civil damages action), at the request of the legal defense (defensa técnica) of [Nombre018] (deceased), the previously ordered attachment was lifted with respect to property [Valor058] in the San José Land Registry District because that property was subject to the family estate regime (régimen de patrimonio familiar). Nevertheless, in view of the remand (reenvío) ordered for consideration of the civil claims (extremos civiles), the request to cancel the attachments is denied. Furthermore, this Court verifies that, by resolution issued at dieciséis horas con veinte minutos on ocho de noviembre de dos mil cuatro, the Criminal Court of the Second Judicial Circuit of San José imposed on the defendant (encartado) [Nombre018] (deceased), among other precautionary measures (medidas cautelares), the posting of a secured bond (caución real) in the amount of doscientos mil dólares (cf. folios 445 to 468 of the Record of Precautionary Measures (Legajo de Medidas Cautelares)). To secure the required bond, the accused (imputado) created a first-priority mortgage (hipoteca de primer grado) on property number [Valor052], by means of deed number [Valor059] executed before notary [Nombre086] (cf. folios 481 to 486 of the Record of Precautionary Measures). Accordingly, the trial court (Tribunal de instancia) is ordered to return any bond posted on behalf of [Nombre018] (deceased) as a precautionary measure, and the first-priority mortgage on property number [Valor052], recorded in the Public Property Registry (Registro Público de la Propiedad), Province of San José, in favor of the Supreme Court of Justice (Corte Suprema de Justicia), and granted as a secured bond in the amount of doscientos mil dólares, is ordered canceled.

XIV. APPEAL FILED BY THE MINISTERIO PÚBLICO

Attorneys Maribel Bustillo Piedra and Criss González Ugalde, representatives of the Ministerio Público, file a derivative cassation appeal (recurso de casación por adhesión) joining the cassation appeals (recursos de casación) filed by the parties against decision Nº 167-2011, issued at 15:00 hours on 27 de abril de 2011 by the Tribunal Penal de Hacienda del Segundo Circuito Judicial de San José. The sole ground asserted alleges an “erroneous interpretation of the constitutional provision in Article 24 of the Constitución Política and failure to apply numeral 7 of the same body of law” (See folio 171422). They explain that, in this same case, the Tribunal Penal de la Hacienda Pública del Segundo Circuito Judicial de San José, by decision issued at ocho horas del catorce de mayo de dos mil diez, ruled: “SECOND PART: Unanimously, the objection based on defective procedural activity (protesta por actividad procesal defectuosa) is partially denied.

The evidence referred to in points 563, 564, 574 to 581, 584 and 585 shall not be declared lawful and, consequently, shall not be admitted as evidence for further consideration (...)”. This was in response to an objection filed by them after the judge at the intermediate stage, in the order committing the case for trial (auto de apertura a juicio), denied the use of evidentiary material related to various requests for judicial assistance made to the República de Panamá, specifically the items of evidence numbered 563, 564, 574 to 581, 584 and 585. The principal argument for excluding the evidence referred to the need for a request by a Costa Rican judge in order to obtain it, because the lifting of bank secrecy (levantamiento del secreto bancario) had to be ordered. They state that, insofar as relevant, the following was established: “—under the Costa Rican Ley Fundamental, restriction of the right to privacy for the investigation of criminal matters is permissible provided that: i) there is an order from a Tribunal de la República so directing, a condition required by the cited constitutional provision insofar as it establishes that the ‘Tribunales de Justicia’ have jurisdiction to order the seizure, search, or examination of private documents, a requirement also stipulated in Articles 2 and 3 of the Ley sobre Registro.

Secuestro, Examen de Documentos Privados e Intervención de las Comunicaciones, N° 7425, and 107 of the Ley Orgánica del Poder Judicial, among others; and ü) when it is ‘absolutely’ indispensable for ascertaining the truth, in accordance with the constitutional provision and the ordinary-law provisions cited above, Article 2 of the special legislation establishing its usefulness as evidence of criminal conduct. (...) It follows that judicial authorization (autorización jurisdiccional), far from being a mere formality, legitimizes the ordered intrusion into a person’s private sphere, assigning to that body the responsibility of permitting it only when strictly indispensable. (..) In short, the impartial, independent, and previously established judge is the body with jurisdiction to decide whether to affect the right holder’s right to privacy (as the Sala Constitucional has also held, among others, in decision N° 1427-1996).

It is therefore neither the function nor <http://función.ni> the power of representatives of the Ministerio Público, nor of the Fiscal General de la República, to request and examine individuals’ confidential information. As may be inferred from the constitutional provision cited above, the system of safeguards in force in Costa Rica establishes that the only body with jurisdiction to weigh and order interference in individuals’ private sphere is a Tribunal de Justicia de la República. (..) Lastly, it is important to emphasize that although bank secrecy does not have constitutional but rather statutory status (to that effect, for example: decisions N° 3229-1995 and N° 5507-1994 of the Sala Constitucional de la CSJ), the fact remains that, insofar as it entails protection of the privacy of checking accounts, prior judicial authorizac,.-w is a safeguard afforded to account holders before their contents may be examined.

(...) With regard to the privacy of other forms of records containing private information, regardless of where such data are located, the conditions set forth in the constitutional provision and its statutory development remain applicable when their evidentiary effect is sought in local judicial proceedings. In other words, if a criminal investigation requires the seizure and analysis of private documents held by a financial institution located abroad that has no legal domicile in Costa Rican territory, the safeguards and requirements mentioned in the preceding section must be fulfilled. Acting otherwise entails a violation of the fundamental right described above and renders the evidence unlawful, as established by the second paragraph of numeral 181 of the Código Procesal Penal. (...) In conclusion, obtaining private evidentiary material (elementos de convicción) from financial institutions located abroad requires compliance with the same safeguards governing the collection of such information from sources located on national soil.

Accordingly, if judicial authorization is among the conditions for examining the contents of bank accounts, transactions, and other financial data contained in local records, that requirement also applies to obtaining data of a similar nature from foreign sources. More than a mere requirement, that condition ensures that, before such interference occurs, a judicial authority established for that purpose assesses the proportionality of the infringement of that right; that is, the necessity of the action, its suitability for achieving the intended purpose, and the proportionality between that purpose and the measure. Only after this assessment has been conducted by the person having jurisdiction and legal authority to do so may the protected sphere identified above justifiably be intruded upon and the data obtained within national territory and abroad be deemed lawful. (...) Therefore, if judicial authorization is constitutionally required to restrict the right to privacy, it should have been obtained before requesting the private information, especially because, in all matters, Costa Rican domestic law is respected for the request and ~ e required for its processing and execution.

(...) It is important to note that the so-called judicial order is not directed to the body of the requested country—in this case, the competent authority of Panamá—to lift the privacy protection afforded to the holder of that fundamental right; rather, its effect is to guarantee that right holder, domestically, prior review by the judge vested with that function. Thus, such authorization is granted insofar as the requirements imposed by the domestic legal system are deemed satisfied, under the principle of proportionality and due process (debido proceso). It is not, therefore, a limitation on Panamanian sovereignty, because the judicial decision is not directed to that State but is instead a requirement of our own domestic law that must be observed. Consequently, an interpretation of the TALM harmonized with the body of constitutional law (bloque de constitucionalidad) establishes the continuing force of the latter, because the Treaty does not have the effect of disapplying Article 24 of the Constitución Política.

(...) In sum, a reasoned order issued by a Tribunal de Justicia de la República lifting the privacy safeguard is what confers legitimacy upon, and renders reasonable, the prosecutorial authority’s interference in that sphere of individuals’ activities” (See folios 171423 to 171425). They explain that, at the outset of the investigation, various indications led to the belief that, in order to evade judicial and administrative controls, the accused had opened bank accounts in the names of legal entities in the República de Panamá, seeking to eliminate traces of the offense (by maintaining accounts outside Costa Rican territory). For this reason, after analyzing the applicable law, the Ministerio Público deemed it appropriate to use the Tratado de Asistencia Legal mutua en asuntos penales entre la Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (TALM) and to request international judicial cooperation, since the basis for that cooperation “lies in the territorial limitation on the jurisdiction of State courts, in the inability of the authorities of the requesting State to take evidence outside their territorial jurisdiction, outside the territory subject to the sovereignty of the State in whose name justice is administered, which requires the collaboration of the authorities of the foreign State corresponding to the place where the evidence is to be taken.

This cooperation thus seeks to overcome borders, ensuring that they do not become an obstacle to the investigation of offenses by the competent authorities and that offenders do not find havens and subterfuges in which to hide, both materially and legally, by exploiting legal labyrinths” (See folio171426). They consider that when the Preamble expresses the desire to strengthen and facilitate cooperation, with full respect for the domestic legislation of each State, this means “that, at the time of its execution, all States Parties, in accordance with their own legislation, are authorized under their domestic law to execute that treaty, because that legal instrument does not conflict with the constitutions and legislation of any of the States Parties. Article 2, point 5, of the TALM specifies how it is to be processed, expressly providing: ‘All requests for assistance made under this Treaty shall be processed and executed in accordance with the laws of the Requested State.’” Therefore, the petitioners consider that actions requested within Central American countries in criminal matters must be carried out in accordance with the laws of the executing State, that is, the procedural law of that State’s own country.

They describe the procedure followed to obtain the excluded evidence, specifying that requests were made by the Fiscalía General to the Procuraduría General de la República de Costa Rica; the latter, in its capacity as the central authority under the aforementioned treaty, forwarded the request to its counterpart in Panamá, namely, the Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional; the request was then transferred to the Procuraduría General de la Nación de la República de Panamá, which forwarded it to the Fiscalía de Panamá, the judicial authority authorized to lift bank secrecy in Panamá. The Fiscalía notified the Panamanian banking authorities and demanded the bank-account information. Once the data had been collected, they were sent to the Fiscalía panameña, then to the Procuraduría General de la Nación, and thereafter to the Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional, the office that transmitted the information to Costa Rica, first to the Procuraduría General de la República de Costa Rica and then to the Fiscalía General.

In support of their position, they cite the dissenting opinion (voto salvado) in judgment Nº 499-2011 of the Third Chamber of the Supreme Court of Justice and argue that, under the accusatorial principle (principio acusatorio) inherent in a democratic State, investigative acts (actos de investigación) are the responsibility of the prosecutor; hence, they characterize as contradictory and unlawful the requirement under our legal system that the judge submit the request to the Procuraduría General de la República, in its capacity as the central authority under the treaty. They criticize the trial court’s reliance on judgment Nº 70-2005 of the Third Chamber, because, in their view, it addresses a different set of circumstances. They object to the proposition that, because our country requires a judicial authority to order the lifting of bank secrecy (levantamiento del secreto bancario), this requirement must also apply to the lifting of bank secrecy abroad.

They consider the scope given to Article 24 of the Constitución Política to be overly broad, since it affects Panamanian authorities and Panamanian territory, whereas the constitutional provision is confined solely to our national territory. They state that the principle of territoriality (principio de territorialidad)—as a manifestation of State sovereignty—applies in criminal matters; therefore, the law of the State applies to all inhabitants of its territory and to acts committed within that nation. When reference is made to the “Ley No.7425 de Registro, Secuestro y Examen de documentos privados e intervención de las comunicaciones,” it is clear that, as a consequence of the principle of constitutional sovereignty, jurisdiction lies with the Courts of Justice of Costa Rica, not with other States; and when the statute refers to the search, seizure, or examination of any private document, it means documents located in Costa Rica, not in other States.

In support of their argument, they return to the text of Article 2 of Ley Nº 7425, which refers to the judge’s personal performance of the proceeding (diligencia), and conclude that, because the documents were abroad, the Costa Rican judge lacked jurisdiction under the principle of sovereignty. They cite judgment Nº 1061-2008 of the Third Chamber, which, with reference to Article 132 CPP, reaffirms that a court cannot convene at a location outside the national territory; they also reproduce Articles 1 and 2 of the Ley Orgánica del Poder Judicial concerning the powers conferred upon the Poder Judicial. They add: “The issuance of an order by a Costa Rican judge to that effect would, on the one hand, constitute an intrusion upon the jurisdiction and powers of foreign judicial authorities, as well as an empty act, because, since the private documents are not located within our State, the order per se ceases to have meaning and validity” (see folio 171436).

They reiterate that, as established by the TALM, the execution of the proceedings requested by the requesting State for the collection of evidence must be carried out in accordance with the laws of the requested State. They note that a review of the case law of other countries, such as Spain, shows that the majority view holds that proceedings conducted abroad through a letter rogatory (comisión rogatoria) cannot be governed by Spanish legislation or case law, but rather by the law of the country in which they took place. They cite several decisions, including the STS of 26 de Marzo de 1995, which upheld the validity of telephone interceptions conducted in Italy in accordance with Italian law, because they were carried out pursuant to the aforementioned Article 3 of the 1959 Convenio de Asistencia Judicial en materia Penal. They also mention English precedents (R v Quinn 1990, establishing that English judges cannot expect British procedural requirements to be followed in other jurisdictions) and a Brazilian precedent (the Tribunal Superior de Justicia de Brasil, No. 2.382 SP(2010/055667-6), issued in Brasilia on 26 de octubre de 2010, held that the relevant law in requests for judicial assistance is that of the requested State).

Finally, they conclude: “Accordingly, given that Article 24 of our Constitución Política does not apply in Panamanian territory, whereas the TALM has authority superior to that of Costa Rican and Panamanian laws, if the documentary evidence is located in Panamanian territory and was collected in that territory in compliance with the rights and guarantees established in that country’s Constitution, and is transmitted to our country in accordance with the procedure established in the TALM, that evidence is lawful and must be admitted into the criminal proceedings” (See folio 171439). The appellants contend that the exclusion of the evidence from Panama (evidence items Nº 563, 564, 578 and 579) resulted in impunity for the acts alleged in charges 334 and 335 and prevented the exercise of the State’s punitive claim (pretensión punitiva). They therefore request that the appeal (recurso) be granted, that evidence item number 588 remain undisturbed, that the challenged judgment be declared partially null and void with respect to the portion of the charges relating to “[Nombre012] and the government of Taiwan,” beginning with fact number 323 in the statement of facts, and that the case be remanded for new proceedings.

XV.THE APPEAL FILED BY THE MINISTERIO PÚBLICO IS DECIDED.- All fundamental rights are inherently limited because they are exercised within society; however, the degree or extent to which they may be affected varies historically and geographically; that is, their scope or the establishment of restrictions changes over time and according to each legal system, based on considerations of public order, morality, good customs, and the rights of third parties (HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). Under Costa Rican domestic law, the Constitución Política establishes an inviolable limit in Article 28: “Article 28.- No one may be disturbed or persecuted for expressing opinions or for any act that does not violate the law. Private actions that do not harm public morality or public order, or adversely affect third parties, are beyond the reach of the law.” Consequently, although fundamental rights are subject to certain restrictions, only those necessary to make democratic and constitutional values effective are legitimate; it is not enough for a restriction to be useful, reasonable, and appropriate—there must be a compelling social need.

Accordingly, only limitations aimed at satisfying a public interest are deemed justifiable, and those that restrict the protected right to the least extent must always be chosen (Cf. HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291).

The Ministerio Público expresses disagreement because evidence submitted in the proceedings (items Nº 563, 564, 578 and 579), which it considers essential, was declared unlawful. Nevertheless, its indifference to the possible infringement of fundamental rights is striking, because although the sole ground asserted (“erroneous interpretation of the constitutional provision in Article 24 of the Constitución Política and failure to apply Article 7 of the same legal instrument”) refers in its title to the constitutional provision protecting the right to privacy, the substance of its argument seeks to legitimize an interpretation concerning the application of the Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (T.A.L.M.) that is entirely unrelated and contrary to the protection afforded to that right under our legal system, even though it is clear that the criminal proceedings at issue will take place within the national territory.

It is therefore evident that, in this context, compliance was required with the principle of legality (principio de legalidad) established in Article 1 of the Código Procesal Penal: “No one may be sentenced to a penalty or subjected to a security measure except by virtue of proceedings conducted in accordance with this Code and in strict observance of the guarantees, powers, and rights provided for individuals. Failure to observe this rule of protection established in favor of the accused may not be invoked to the accused’s detriment.” This must also be read consistently with Article 63 thereof: “In performing its duties, the Ministerio Público shall conduct its actions according to an objective standard and shall ensure effective compliance with the guarantees recognized by the Constitución, International Law and Community Law in force in the country, and the law…” (boldface not in the original), since, ultimately, applying the T.A.L.M. did not have to be incompatible with respect for due process (debido proceso), the right of defense (derecho de defensa), and the fundamental rights enshrined in the Carta Magna.

This Chamber was able to verify that the Juzgado Penal de Hacienda y la Función Pública, by a decision issued at sixteen hours on siete de octubre de dos mil ocho, when issuing the order committing the case for trial (auto de apertura a juicio), granted a claim of defective procedural activity (actividad procesal defectuosa) filed by counsel for the accused [Nombre012] and ordered the exclusion of the evidence at issue here for the Ministerio Público. On that occasion, the judge acknowledged that the Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá “... constitutes an international legal instrument intended specifically to expedite cooperation among its States Parties in criminal matters. One of the specific objectives of these rules is to avoid processing such mutual legal assistance through diplomatic channels.

This means that the provisions of the Código de Bustamante or any other general provision governing international cooperation are not applicable to the case because a special rule exists... The provision presupposes a more expeditious, less formalistic (in administrative matters, not judicial matters), and efficient procedure, for the benefit of the right to prompt and effective justice, dispensing with diplomatic channels and the strict formalities established in the Convención de Derecho Internacional Privado.” (Cf. folios 10570 and 10571).

Yet, even after acknowledging the instrument’s importance or advantages, its purposes of international cooperation in processing criminal cases, and its aim of preventing criminal conduct from going unpunished, the judge subsequently addressed and clarified issues central to the matter. Returning to the content of Article 24 of the Constitución Política, the judge stated: “As can be seen, the provision guarantees the right to the inviolability of private documents and communications of the inhabitants of the Republic... An initial detailed examination of the issue shows that the provision indicates that the documents (the subject now before us) and records protected under that constitutional principle are private ones. This has a direct bearing on the case, because the judicial precedents cited by the Fiscalía to justify its actions concern public documents, which as such are not subject to any special regulation under our national law, except regarding authenticity, which is not the matter under discussion...

Clear evidence of the truth of the foregoing is that, with respect to publicly accessible documents, the Costa Rican Código Procesal Penal permits direct investigation by the Ministerio Público without any judicial intervention because, as the term itself indicates, these are openly accessible documents that receive no protection under the right to privacy” (Cf. folio 10575).

After considering the safeguards established by the legislature for enacting rules limiting the fundamental right to privacy—namely, a law approved by a qualified majority—the judge cited Article 201 of the Código Procesal Penal, which provides: “With respect to the interception and seizure of communications and correspondence, the provisions of the special law referred to in Article 24 of the Constitución Política shall apply.” That legislation is precisely the Ley de Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones, which requires a duly reasoned judicial decision before any intrusion into citizens’ sphere of privacy may be authorized. The judge emphasized that, during the preliminary hearing (audiencia preliminar), it was argued that treaties rank above statutes pursuant to constitutional Article 7, but that such superiority does not extend to the Constitución Política, Article 24 of which requires an express and reasoned decision.

The judge added: “The Fiscalía has maintained that this instrument ranks above the Constitución Política itself, a contention we must categorically reject. The Sala Constitucional has held that international human-rights instruments prevail even over the Constitución itself insofar as they form part of the constitutional framework (See, among others, decisions 68-98, 1319-97 and 2313-95, all issued by the Sala Constitucional), but this does not apply to all instruments; it applies only to those falling within that specific regulatory framework, namely, the subject of human rights” (Cf. folio 10576).

The judge correctly denied that the T.A.L.M. possesses that status, adding: “Furthermore, granting such instruments effectiveness superior to the constitutional framework is not intended to repeal what has already been established by the domestic charter, but to permit better regulation or a broader scope, which is not the situation here. (...) Since this was private information to which access required a court order under the Constitución, the logical course under the constitutional framework was for the Juzgado Penal del Segundo Circuito Judicial de San José, acting as the Juzgado Penal de Hacienda y la Función Pública, to order the lifting of the privacy protection covering that information and to request (through the Procuraduría General de la República) that the Panamanian authorities, pursuant to the treaty in question, forward the request to the appropriate judge in that country so that the judge could determine whether, in their view, it was appropriate (under their domestic law) to grant access to information protected by the right to information” (Cf. folio 10576).

The lawfulness of evidentiary items 563, 564, 574 to 581, 584 and 585 again became a matter of dispute at the outset of the oral and public trial when the Ministerio Público attempted to revive the issue and introduce them into the evidentiary record of the adversarial proceedings. It was argued that the judge at the intermediate stage (etapa intermedia) had erred in classifying as unlawful the evidence obtained from financial institutions and the Registro Público de la República de Panamá concerning Inversiones Denisse S.A. and linked to the accused [Nombre012], and from Banco Alemán Platina, NCR Holding S.A., and UTS Holding S.A., associated with the defendant [Nombre018] (deceased); the Ministerio Público maintained that the procedure was valid because it had been conducted as prescribed by the T.A.L.M.

Nevertheless, when ruling on the objection, the trial court denied it by a decision issued at eight hours on catorce de mayo de dos mil diez, relying on Article 24 of the Carta Magna, namely, the right to privacy and the confidentiality of communications. It explained that, although the constitutional provision allows for an exception to that right, it required the enactment of a law—approved by two-thirds of the members of the Asamblea Legislativa—which is understood to be Nº 7425, Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de las Comunicaciones. That law requires a duly reasoned order issued by a judge of the Republic, including a proportionality assessment (examen de proporcionalidad) regarding the need to intrude into the private sphere in order to ascertain the truth of the facts, as well as verification of some indication that a criminal offense was committed.

The cited decision states: “... the judge, who must be impartial, independent, and previously established by law, is the body competent to decide whether to affect the holder’s right to privacy (the Sala Constitucional has likewise interpreted it this way, among others, in decision Nº 1427-1996). It is therefore neither the function nor the authority of the representatives of the Ministerio Público, nor of the Fiscal General de la República, to request and obtain access to individuals’ confidential information. As the aforementioned constitutional provision is construed, the system of safeguards in force in Costa Rica establishes that the only body competent to weigh and order an intrusion into individuals’ private sphere is a Court of Justice of the Republic” (Cf. folio 13376, Tomo XXVII).

It is further stated: “The national judge cannot disregard the verification of the guarantees in force in Costa Rica, even when the investigation has been conducted outside the national territory or when, as in the present case, information from abroad is requested. In that regard, the Constitutional Chamber, in ruling Nº 4248-2001, warns of the importance of respecting the mechanism for verifying the truthfulness and authenticity of the content of documents requested from abroad, precisely in light of our constitutional guarantee of due process (debido proceso), asserting that the effects of the chain of custody (cadena de custodia) must be assessed in the specific case in order to establish the legality of the production and introduction of evidence into the proceedings” (Cfr. folio 13377 vto., Tomo XXVII). In short, the Trial Court acknowledges—and this Court fully endorses its position—that obtaining private evidentiary material from financial institutions domiciled abroad requires compliance with the same guarantees established and required to obtain that information if those sources were located within our own national territory.

Consequently, because a judicial order (orden jurisdiccional) is among the legal conditions imposed for access to bank accounts, transactions, and any other private financial data, it is a mandatory requirement for both domestic and foreign sources. It should be emphasized that this is not a mere formality; it is a due-process guarantee requiring an assessment of the proportionality between the rights affected and the investigation (cfr. folios 13378 fte. y vto., Tomo XXVII). We see the Public Prosecutor’s Office advancing different theories depending on the stage of the proceedings, always seeking protection and validation for evidence that it handled in a manner that was more than merely improper—it was unlawful. That situation ultimately created circumstances favorable to the interests of the persons standing trial and largely determined their acquittal in the criminal matter, insofar as the charge was linked to that evidentiary material.

Its arguments were rejected one by one. During the intermediate stage (etapa intermedia): (i) it invoked case law concerning public documents rather than private documents, which was entirely useless in supporting its position; and (ii) it claimed that the Treaty took precedence over the Constitution, which is unacceptable except in matters of human rights. Later, during the plenary phase (fase plenaria), it continued to insist that the procedure was lawful because it had been carried out in accordance with the T.A.L.M.

However, although this Chamber does not agree with the judge from the intermediate stage that a Costa Rican criminal judge was required to send the request to a Panamanian judge who would also examine its legal admissibility, since it is clear that the applicable procedure is different, there is agreement and concurrence on a central issue in both decisions: the legal requirement in our country that a national pretrial-rights judge (juez de garantías) issue an express and duly reasoned decision weighing and ordering—or denying—the measure requested by the Public Prosecutor’s Office. If the prosecutorial authority’s request had been granted, with the judge authorizing the lifting of bank secrecy (levantamiento del secreto bancario), the Public Prosecutor’s Office was then required, with the decision authorizing the intrusion into the defendants’ privacy, to follow the procedure established in the T.A.L.M.; that is, to submit the request for judicial assistance (asistencia judicial) to the Office of the Attorney General of the Republic of Costa Rica, the central authority at the local level; for the Office of the Attorney General to forward the Public Prosecutor’s Office’s application to the National Director for Implementation of the Treaty; for it then to be sent to the Office of the Attorney General of the Nation, the central authority in Panama; and subsequently to the Anti-Corruption Prosecutor’s Office, which would notify the Panamanian financial institutions in order to obtain the relevant information.

It should be clarified that, under Panama’s Political Constitution, the competent authority for lifting bank secrecy is the Public Prosecutor’s Office, unlike in our country. In short, this Court agrees that, as established by the accusatorial principle (principio acusatorio) and as argued by the Public Prosecutor’s Office in its appeal, investigative acts (actos de investigación) are the responsibility of the prosecutor. After requesting and obtaining from the pretrial-rights judge a duly reasoned decision authorizing that investigative measure, the prosecutor must ask the Office of the Attorney General of the Republic to forward the application to the National Director for Implementation of the Treaty—in the sub examine, the treaty with Panama—and the pretrial-rights judge must not do so directly. But accepting that argument does not validate or eliminate the absolute defect (vicio absoluto) they committed by independently and directly applying to the Office of the Attorney General of the Republic for an intervention in or impairment of a defendant’s fundamental right, while entirely disregarding the function assigned by the Political Constitution to the pretrial-rights judge within the national territory.

As the Trial Court correctly stated in deciding this objection: “... the reasoned order of a Court of Justice of the Republic lifting the guarantee of privacy is what confers legitimacy upon and renders reasonable the intrusion of the prosecutorial authorities into that sphere of individuals’ activities. Far from constituting a mere command set forth in a simple document, it represents the prohibition of arbitrariness and the subjection of public authorities to the Constitution, because it requires an objective weighing of whether, in that particular case, the conditions imposed by the legal system for such a restriction have been met. To act without the formal and substantive assessment described above is to act in defiance of the Fundamental Law and contrary to the convictions and values shared by Costa Rican society” (cfr. folio 13381). As indicated in another recital (considerando), this Chamber does not agree with the reasoning of dissenting opinion Nº 499-2011 of the Third Chamber of the Supreme Court of Justice.

Although it recognizes the accusatorial principle that clearly defines our criminal procedural system, there can be no doubt regarding the central and essential role assigned to the pretrial-rights judge, who is called upon to intervene and weigh every investigative measure that affects fundamental rights. In the sub judice, notwithstanding the validity and application of the T.A.L.M., which this Court fully endorses as a suitable and highly useful tool for combating crime and preventing impunity, it is not a legal instrument capable of depriving our Political Constitution of effect. Article 24 of that Constitution clearly and unambiguously provides: “The right to privacy, liberty, and the secrecy of communications is guaranteed. The private documents and the written, oral, or any other type of communications of the inhabitants of the Republic are inviolable. Nevertheless, the law, the enactment and amendment of which shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall establish the cases in which the Courts of Justice may order the seizure, search, or examination of private documents when absolutely indispensable for clarifying matters submitted for their consideration.

Likewise, the law shall determine the cases in which the Courts of Justice may order the interception of any type of communication and shall specify the offenses in the investigation of which the use of this exceptional power may be authorized, as well as the period for which it may be exercised. It shall also specify the liabilities and penalties incurred by officials who unlawfully apply this exception. Judicial decisions issued pursuant to this provision must state their reasons and may be executed immediately. (...)” (Boldface does not appear in the original). From that perspective, there is no overreach in applying or interpreting constitutional Article 24, because, as has been explained, intervention by the pretrial-rights judge to assess the suitability, necessity, or proportionality of the measure is required only for the procedure conducted within the national territory, where, it must not be forgotten, the proceedings against the accused are being conducted.

In other words, it is not an order extending or purporting to bind another State—in this case, Panama—because we plainly lack jurisdiction to do so. Moreover, its laws differ from ours and require only action by the Public Prosecutor’s Office to obtain the documentation of interest to the prosecutorial authority in our country. In that regard, Article 2, point 5 of the T.A.L.M. is respected: “All requests for assistance made under this Treaty shall be processed and executed in accordance with the laws of the Requested State.” Accordingly, what was required in our country was for the Public Prosecutor’s Office to ask the pretrial-rights judge to lift bank secrecy, as mandated by the Constitution, and, if approval was obtained, to apply to the Office of the Attorney General so that it could process the request before the Panamanian State. Panama, in turn, was responsible for receiving the request from the Office of the Attorney General so that the Panamanian Public Prosecutor’s Office could obtain the requested information.

That was the only procedure that could lawfully be expected, in observance of the principle of territoriality (principio de territorialidad) and as an expression of the sovereignty of States. We plainly do not share what we consider to be the appellants’ biased and confused view when, in pursuit of another argument, they assert that the principle of constitutional sovereignty makes it impossible to apply the “Ley No.7425 de Registro, Secuestro y Examen de documentos privados e intervención de las comunicaciones” to other States.

In fact, the Trial Court was perfectly clear on that point: there has never been any attempt to apply Costa Rican domestic law in Panama. This is evident from the following passage: “It is important to note that the so-called judicial order is not directed to an authority of the requested country—in this case, the competent Panamanian authority—for the purpose of lifting the privacy protection enjoyed by the holder of that fundamental right. Instead, its effect is to guarantee that holder, internally, a prior review by the judge vested with the authority to perform that function. Thus, such authorization is granted insofar as the requirements imposed by domestic law are deemed to have been met, pursuant to the principle of proportionality (principio de proporcionalidad) and due process. It is therefore not a restriction on Panamanian sovereignty, since the judicial decision is not addressed to that State; rather, it is a requirement of our own domestic law that must be respected” (Cfr. folio 13380).

It adds: “... Nevertheless, when that information is requested from a State such as Panama, the applicable procedure is the one established in the TALM. The requesting State must therefore channel the request for public documents through its national Central Authority, while the requested State must provide them bearing the signature of the official responsible for their custody and certified by the Central Authority using a seal created for that purpose... Once those requirements have been fulfilled, no further certification or authentication shall be required. Documents certified in accordance with the Treaty constitute admissible evidence of the truthfulness of the matters stated therein, as provided in Article 13, subsection 3, of the TALM...” (Cfr. folios 13380 vto. y 13381 fte.).

In sum, the judgment neither establishes, nor does this Tribunal endorse, that a judge of the Republic may seek to impose national legislation or case law abroad; that argument is a distorted interpretation of the Trial Tribunal’s ruling. Consequently, the precedents they cite (case law from Italian and English cases) would be shared by this Chamber, since there is no intention whatsoever to apply Article 24 of the Constitution to the sister State of Panama. Our criminal procedure system has chosen to adopt the principle of freedom of proof (libertad probatoria), established in Article 182 of the Criminal Procedure Code (Código Procesal Penal): “Facts and circumstances relevant to the proper resolution of the case may be proven by any permitted means of evidence, unless expressly prohibited by law.” Accordingly, the parties have the right to prove matters relevant to the proceedings through useful and pertinent evidence, subject, however, to one absolute limitation: its lawfulness, whether at the stage of obtaining it and/or introducing it into the proceedings.

That is, under our democratic system governed by the rule of law, all evidence obtained, produced, collected, or introduced into criminal proceedings outside the previously established legal requirements must be excluded from consideration in those proceedings, both in the private interest of the defense (to safeguard its rights and guarantees) and in a higher public interest, because society unquestionably has an interest in the proper application of the law. As ruled by the criminal judge (at the intermediate stage) and by the full Tribunal (at the plenary stage), the evidence identified by numbers 563, 564, 578 and 579 constitutes what is known as unlawfully obtained evidence (prueba ilícita), that is, evidence obtained, introduced into the proceedings, or assessed in violation of fundamental rights, thereby causing prejudice to one of the parties to the proceedings. In the context of criminal procedure law, this entails a violation of due process (debido proceso), a judicial guarantee enshrined in Article 39 of the Political Constitution and in international instruments such as the American Convention on Human Rights, Article 8; it also entails the violation of other fundamental rights held by every citizen, such as dignity, health, the privacy of the home, correspondence, communications, etc. In Costa Rica, unlawfully obtained evidence has no evidentiary value, as established by Article 181 CPP: “Items of evidence shall have value only if they have been obtained by lawful means and introduced into the proceedings in accordance with the provisions of this Code.

(…)” In other words, the determination of the actual or material truth (verdad real o material) does not authorize the use of illegitimate means of evidence, as has been repeatedly affirmed by the case law of the Sala Constitucional (votes Nº 1739-1992, 1422-1994, 2334-2000, 9127-2001), the Sala Tercera (votes Nº 53-F-1992, 47-92-1992, 614-1995), and several decisions of the Tribunales de Casación Penal (votes Nº 66-F-1999, 422-2000, from the Segundo Circuito Judicial de San José). In the case under review, as has already been reiterated, in order to access the evidence relevant to this claim, the Ministerio Público required judicial authorization assessing its lawfulness, usefulness, and pertinence, because granting access to it would constitute an intrusion upon a fundamental right (privacy), and the prosecuting authority was fully aware of that circumstance within a criminal procedure system such as ours, which is distinctly accusatorial in nature (with prosecution and investigation entrusted to the Ministerio Público), but which also chose to strengthen the judge’s role as guardian of guarantees and fundamental rights, with authority to approve or reject certain evidentiary acts (actos probatorios).

Numerous provisions address this matter, notably Article 290 of the Criminal Procedure Code, which establishes: “The Ministerio Público shall conduct those measures and actions of the preparatory investigation (investigación preparatoria) that do not require judicial authorization and are not jurisdictional in nature…” Even clearer is Article 277: “The tribunal responsible for the preparatory proceedings (procedimiento preparatorio) shall take advance judicial evidence (anticipos jurisdiccionales de prueba), rule on objections and other applications pertaining to this stage, grant authorizations, and, in general, oversee compliance with the principles and guarantees established in the Constitution, the International and Community Law in force in Costa Rica, and this Code… Prosecutors may not perform acts that are properly jurisdictional, and judges, except as expressly provided by this Code, may not perform investigative acts.” In light of the foregoing, the appeal filed by the Ministerio Público is denied.

XVI.APPEAL FILED BY ATTORNEYS GILBERTO CALDERÓN ALVARADO AND MIGUEL HORACIO CORTÉS CHAVES, OF THE PROCURADURÍA GENERAL DE LA REPÚBLICA.- A. Attorneys Gilberth Calderón Alvarado, Procurador de la Ética Pública, and Miguel Horacio Cortés Chaves, Procurador Adjunto de la Ética Pública, acting as representatives of the State, appearing as Civil Plaintiffs (Actores Civiles), and pursuant to Articles 1, 3 subsections a) and h), 20 and 21 of the Ley Orgánica de la Procuraduría General de la República; 1, 4, 6, 7, 16, 37, 38, 40, 116, 142, 368, 437, 438, 439, 458, 459 and 460 of the Código Procesal Penal; 103, 105 and 106 of the Código Penal; 1045 et seq. and related provisions of the Código Civil; 11, 41 and 153 of the Constitución Política; 5 of the Ley Orgánica del Poder Judicial; and 7, 113 and 155 of the Código Procesal Civil, filed an appeal in cassation (recurso de casación) (appearing in volume XXXVI, folios 17300 to 17385) against the judgment issued by the Tribunal de Juicio del Segundo Circuito Judicial de San José at quince horas del veintisiete de abril de dos mil once, objecting that the decision omitted a ruling on the merits of the civil actions (acciones civiles) brought by the Procuraduría General de la República against the civil defendants (demandados civiles) [Nombre015], [Nombre009], [Nombre004], [Nombre012], [Nombre024], [Nombre021], [Nombre001], [Nombre018], [Nombre007], Servicios Notariales QC S.A., Punto de Negocios L.Q.C.S.A., Selva de la Marina S.A., Quántica S.A., Gambusinos S.A. and Finca Salitral S.A. They explain that, in these proceedings, the Procuraduría General de la República pursued a civil action for the social harm (Daño Social) caused by the acts of corruption under investigation, asserting joint and several liability (responsabilidad solidaria) against all the accused (imputados) and several companies that had participated in the events in some manner.

They contend, however, that the trial court failed to resolve that claim, alleging purported deficiencies in the civil complaints. The aforementioned State Attorneys likewise filed an appeal against the judgment (recurso de apelación de sentencia) (appearing in volume XXXVIII, folios 171982 to 172067). Given that the claims raised in both challenges coincide, the claims are set forth below, with some verbatim quotations from the second challenge, namely the appeal against the judgment.

B.- First ground.- “Contradictory reasoning resulting in inconsistency in the judgment” (Cf. folio 171985). The appellants state that, although the decision recognizes the existence of a criminal plan to corrupt public officials, it fails to rule on the civil action for damages (acción civil resarcitoria) that was filed concerning the social harm caused, in violation of Article 142 CPP. They quote, insofar as relevant, decision Nº 334-2004, of 9:58 hours on 2 de abril: «“The claim is well-founded: Judges are required to state the reasons for their decisions clearly and precisely, setting forth the factual and legal grounds on which they base their judgment, as well as indicating the weight assigned to the evidence—Article 142 of the Código Procesal Penal—which means that the reasoning of the judgment is subject to review, to the evidence, and to the procedural limits imposed. In assessing the evidence, the judge must rely on two essential criteria: its legitimacy and the reasonableness of the analysis, so as to avoid a capricious and arbitrary examination, such that the decision rests on objective criteria and clearly, precisely, and conclusively states the reasons supporting a legitimate and valid determination, which, in the event of disagreement, may be reviewed by a higher court to determine whether the judgment rendered respected the fundamental principles and rights of the parties involved in the adversarial proceedings.” (Our emphasis).» (Cf. folio 171986).

They assert that the facts alleged in the civil complaints filed (which they reproduce in their brief) established a criminal plan structured by several of the civil defendants ([Nombre015], [Nombre035] and [Nombre009], together with the civilly sued companies Alcatel CIT and Servicios Notariales QC S.A.) to corrupt several public officials for the purpose of obtaining economic benefits and advancing their personal financial interests and those of Alcatel CIY in the procurement of the 400 mil cellular telephone lines by the Instituto Costarricense de Electricidad. Moreover, they assert that this is stated in the proven facts of the judgment, from which they reproduce the following paragraphs: «“48) Without specifying an exact date, but approximately beginning in mayo de 2000, the accused [Nombre015] and [Nombre035] planned or conceived the idea of seeking out, offering, and delivering gifts consisting of money to public officials who had influence or decision-making authority over I. C. E procurements and within the political sphere.

This was done so that Alcatel would be favored through the opening of public tenders for GSM cellular telephony and in the award of future tenders in this field, as well as to obtain substantial sums of money for themselves. As part of their strategy, they agreed that the money they promised to officials would actually be delivered indirectly, through a third person, the accused [Nombre009]....” “50) There is a relationship by affinity among the accused and [Nombre009], because the wife of [Nombre015] is [Nombre009]’s sister. The ties of affinity and trust, together with the described relationship between [Nombre009] and Servicios Notariales QC S.A. and his management of its account at Banco Cuscatlán, led [Nombre009] to join in planning and structuring the aforementioned criminal plan, knowing that all of them would personally benefit from part of the money originating from Alcatel CIT.” “51) For the foregoing purpose, the accused [Nombre015], together with the convicted person [Nombre035], by mutual agreement with the accused [Nombre009], decided to use the bank account of Servicios Notariales QC S.A. (...) to receive the funds delivered by Alcatel CIT and subsequently distribute them among the corrupt officials and politicians identified below.” “52) As part of the previously devised plan, the convicted person [Nombre035] and the accused [Nombre015] and [Nombre009], for the purpose of concealing the payment of the unlawful gifts and justifying the multimillion-dollar transfers of money to the public officials, took advantage of the commercial relationship that had existed between Servicios Notariales QC S.A. and Alcatel CIT, which, in executing consulting agreements, was represented by Alcatel Standard S.A.” “56) Pursuant to the plan devised with the accused [Nombre015] and the convicted person [Nombre035] to corrupt public officials, among the tasks to be performed, the accused [Nombre009] was responsible for receiving the money originating from Alcatel CIT and making the unlawful payments to the corrupt officials.” “59) Alcatel CIT paid each of the amounts corresponding to the aforementioned contracts, and the convicted person [Nombre035], together with the accused [Nombre015] and [Nombre009], obtained the money they used to pay the gifts to the public officials.” “60) The accused [Nombre009], in accordance with the portion of the plan assigned to him, proceeded to deliver money to each of the officials designated by the accused [Nombre015] and [Nombre035], as will be explained below.”» They add that the reasoning portion of the judgment found that criminal plan to have been established, which plainly gives rise to civil liability, and they quote several excerpts in support of that assertion.

They conclude that the court’s reasoning is “absolutely contradictory”: on the one hand, it determines that the civil defendants did participate in a common agreement under the criminal plan as corruptors, while, on the other, it declines to consider the civil action brought against them. In their view, this violates the principle of non-contradiction (principio de no contradicción). They request that the judgment be declared null and void.

C.- Second ground.- “Contradictory reasoning” (Cf. folio 172006). They argue that the criminal acts of corruption proven at trial caused serious social harm, as established by Article 38 of the Código Procesal Penal and as stated in the judgment when, at folio 1625, it held: «“On the contrary, given his criminal participation from the First Branch of Government, as well as the serious social harm caused and the significant amount received as a gift, under no circumstances is he deemed deserving of its grant.” (Emphasis added)» (Cf. folio 172006). The court refers to that harm on multiple occasions in its reasoning, to such an extent that it serves to justify the offense and the sentences imposed, as illustrated in the judgment when analyzing the charge against [Nombre012] or [Nombre015], among others. The following quotation concerning the latter is reproduced from the judgment: «“Thus, in causing the social harm and injury to the legally protected interest (bien jurídico), the greatest contribution was made by [Nombre015], since he acted according to a scheme previously established for that purpose; he knew how to set it in motion, determine the ‘appropriate’ amount for making the promise and inducing its acceptance, among other actions demonstrating that he acted deliberately at all times.

The same is not true of [Nombre026], who was unaware of the aforementioned unlawful scheme for causing the violation of the legally protected interest and the stated social impact because, as he himself said, he did not know that other persons were involved or the extent of [Nombre015]’s corrupt proposals. Accordingly, the greater degree of culpability for causing the harm also corresponds to [Nombre015].” (Emphasis not in the original)» (Cf. folio 172007). The appellants consider that, if the judgment found the existence of social harm to have been proven and found that all those convicted acted toward a single objective (to ensure that Alcatel CIT was awarded the procurement of the 400 mil cellular telephone lines), it was not possible—without engaging in contradictory reasoning—to fail to adjudicate the civil complaint in these proceedings. They request that this ground be admitted and that the civil complaint filed be adjudicated.

D.- Third ground.- “Violation of substantive law through failure to apply Articles 11, 41 and 153 of the Constitución Política, 5 of the Ley Orgánica del Poder Judicial, 1, 4, 6, 7 and 40 of the Código Procesal Penal, 103 subsection 2) of the Código Penal, 1045 of the Código Civil, and 7 and 155 of the Código Procesal Civil” (Cf. folio 172009). They state that, by finding it impossible to rule on the merits of the civil action for damages brought by the Instituto Costarricense de Electricidad, as well as the one brought by the Procuraduría General de la República, the court violated Costa Rican law: Article 3 of the Ley de la Jurisdicción Constitucional and Articles 11, 41 and 153 of the Constitución Política, because judges have an obligation to resolve each and every matter submitted for their consideration and may not leave the parties who have participated in proceedings without a decision responding to their requests. Article 41 establishes that access to justice and the right to effective, prompt, and complete judicial protection (tutela judicial efectiva, pronta y cumplida), which are absent from the challenged judgment with respect to the civil actions brought by the State’s Representation.

Later, they invoke the principle of legality (principio de legalidad) to underscore the duty of the courts to decide the matters submitted for their consideration; they also invoke the right to reparation for all harm caused, as well as the right to prompt and full justice, without denial and in strict adherence to the law. Regarding the principle of legality, they cite decision Nº 440:98 of 15:27 hours on 27 de enero; they also state: “The Principle of Legality under the Rule of Law requires the authorities to be specifically bound by the legal system, based on the fundamental definition whereby every authority must act only insofar as it is expressly empowered to do so by that legal system; hence, the exercise of the judicial function must be guaranteed through formal and substantive effectiveness, to the extent that violations of mere legality become—by virtue of the principle—violations of due process (debido proceso) (the body of guarantees translated into rights and obligations within judicial proceedings) and of the corresponding right to constitutional legality and legitimacy as a means of applying substantive law” (See folio172012).

They supplement the claim by transcribing Article 5 of the Organic Law of the Judiciary, sections 1, 4, 6, 7 and 40 of the Code of Criminal Procedure, section 103 of the Criminal Code, section 1045 of the Civil Code, and Articles 7 and 155 of the Code of Civil Procedure. They invoke decision Nº 619-2000, issued at 11:20 hours on 9 de junio by the Third Chamber: “Article 41 of the Political Constitution establishes that every person must obtain reparation for injuries or harm suffered, in accordance with the law. It also provides that everyone must receive prompt and full justice, in strict accordance with the law. The constitutional legal system thus recognizes the right to reparation, always under the aegis of the applicable statutory provisions. It should be noted that, in matters of civil reparation, monetary compensation is one of the legally permitted forms of providing such reparation.

It may likewise be said that Costa Rica’s Fundamental Law is clear in establishing that the judicial function consists of hearing certain types of cases, rendering a final decision on them, and enforcing the judgment (Article 153). Accordingly, if a judge has jurisdiction over certain particular matters, that judge must comply with the applicable legislation. This principle is reinforced by Article 5 of the Organic Law of the Judiciary, which provides that judges must exercise their authority and adjudicate matters in accordance with the written and unwritten rules of the legal system, according to their position in the hierarchy.” They reiterate their objection to the failure to decide the merits of the actions filed, as well as to their referral to the civil courts to adjudicate their claims, concerning which they state: «Legal scholarship has taken the position that “It is inconsistent with the principle of prompt and full justice to send victims to civil proceedings after they have selected a forum authorized by law to resolve their disputes.

In other words, new proceedings would have to be commenced, generating greater expenses and an evident delay in the decision. If criminal judges must handle civil matters to decide civil actions, there is no impediment to continuing the proceedings in order to reach the corresponding judgment. In any event, difficult problems are resolved through judges’ conscientious study or, as Núñez states (1982, p.26), ‘... once the criminal-judge system has been established, through experience the judge will become specialized in the matter.’” (Sanabria Rojas, Rafael Ángel. 2008. La Acción Civil Resarcitoria en el Proceso Penal Costarricense. Colegio de Abogados Editor. San José Costa Rica. Pág. 40). Therefore, when one of the civil parties in criminal proceedings files a civil action for damages (acción civil resarcitoria), it does so because it has chosen that forum so that its petition may be decided within those proceedings» (Sic. see folio 172019).

The appellants add: «It is through Access to Justice, given tangible form through the administration of justice, that persons exercise the right to obtain a response to the violation of any of their guarantees and thus an effective and timely solution to a matter protected by law. The same occurred in this case: within the criminal proceedings, this Office of the Attorney General filed separate civil actions against the defendants and civilly liable third parties (terceros civilmente responsables), and from 2004 to the present, steps have been taken to advance those actions, including the filing of the civil actions themselves, clarifications thereof, the levying of attachments (embargos), responses to appeals, and, finally, attendance at a trial lasting nearly a year, during which the position was maintained that the social harm caused by the acts of corruption under investigation existed and should be recovered.

It is therefore incomprehensible that, at the end of the trial, the Court should determine by judgment that it was unable to rule on the merits thereof, without any reason for doing so. That refusal causes irreparable harm to this Office because it amounts to a denial of access to justice and of a decision on the matters raised, thereby violating all the principles cited above. In addition to representing a denial of access to justice, a flagrant violation of the Principle of Effective Judicial Protection, and a rejection of the Principle of Prompt and Full Justice, it constitutes a clear failure by the Trial Court Judges to fulfill their obligations, which include the duty to decide all issues submitted for their consideration» (See folio172020).

They partially reproduce decision Nº 12224-2001, issued at 14:55 hours on 28 de noviembre by the Constitutional Chamber: “... the activity undertaken by the parties and the judge in the proceedings is directed toward a common purpose, namely, to establish the existence of the law’s intent regarding a specific interest with respect to the plaintiff and the defendant in the case being heard. The act through which the judge makes this declaration is the judgment. The judicial function is encapsulated in it, and the proceedings are justified by it, because the legal order is upheld through the proceedings and by means of the judgment. The judgment must concern a specific disputed case, (sic) and the judge may not issue rulings in the abstract. Thus, this function—the judicial function—requires the judge to ‘adjudge,’ ‘opine on,’ and ‘assess’ the facts at issue in the dispute and bring them within the current legal framework; it therefore contains a positive and precise decision regarding those facts, that is, it is an expression of what was considered by the judicial authority. The constitutional and statutory mandate to ‘finally decide matters submitted for consideration by the courts of justice’ (decision number 6494-93)” (Sic. see folio 172021).

They question the fact that the sentencing court deemed non-pecuniary harm (daño moral) proven and, despite this, stated that it was unable to decide the merits of the civil actions filed. In this regard, they state: “The only valid and logical conclusion is that the inability to which it referred concerned determining the quantum of damages corresponding to each individual; plainly, this does not prevent a decision on the merits of the civil actions and, if necessary, referral of the determination of the amount to the judgment-enforcement stage (fase de ejecución de la sentencia), which is indeed authorized by law” (See folio 172022). They state that the case law of both the Third Chamber and the so-called Courts of Cassation has concurred that failure to rule on civil matters constitutes a violation of the applicable law, a situation aggravated when absolutely nothing is decided. In support thereof, they cite the following decisions: (a) from the Third Chamber, decisions Nº 165-F-91, issued at 9:00 hours on 26 de abril, and Nº 105-2010, issued at 11:00 hours on 17 de febrero; (b) from the Criminal Court of Cassation, decisions Nº 186-2001 of 23 de febrero and Nº 601-F-98, issued at 9:25 hours on 31 de agosto; and (c) from the Constitutional Chamber, decision 8591-2002, issued at 14;59 hours on 4 de setiembre. They consider that all the cited provisions were violated and request that the decision be vacated and that the provisions of the applicable law be applied.

V.Fourth ground.- “Erroneous interpretation of sections 1, 3, 20 and 21 of the Organic Law of the Office of the Attorney General of the Republic, section 38 of the Code of Criminal Procedure, sections 1, 190, 191, 196, 197, 199, 201, 203, 205 and 206 of the General Law of Public Administration, and section 105 of the Criminal Code” (See folio 172029). They criticize the trial court for finding that the Office of the Attorney General of the Republic did not act in these proceedings as the representative of the State, and that the civil claims had therefore been improperly pleaded because the State should have been named as a civil defendant (demandado civil), in accordance with the liability rules set forth in the General Law of Public Administration. In other words, they consider that the judges’ error was to find that there were additional civil defendants besides those identified in the civil actions filed.

They state: «This is because the judges analyze section 106 of the Criminal Code in conjunction with sections 1, 190, 191, 196, 197, 199, 201, 203, 205 and 206 of the General Law of Public Administration to conclude that the State should also have been named as a civil defendant together with Instituto Costarricense de Electricidad. Those provisions transcribed in the decision were erroneously interpreted, first, because it is the Office of the Attorney General of the Republic, acting on behalf of the State, that seeks recovery for the social harm caused by the unlawful personal conduct of the defendants in this case; consequently, citing the provisions in question in the decision, much less interpreting them for purposes of this case, is illogical. Second, because it is private parties—not the State acting against itself—who must pursue the State’s “alleged liability,” since such liability is a basic instrument of the relationships between the administration (active party) and the governed party (passive party): “it translates into the governed party’s power to demand that the Public Administration—which has inflicted upon that party an unlawful injury that the party is not legally required to bear, or which has breached a preexisting administrative obligation imposed by the legal system—provide compensation for harm to that party’s economic or non-economic interests. ...

This right may or may not be exercised by the injured party or victim, since its exercise is optional for its holder, and it is exercised by asserting claims or bringing an action against the liable public entity.” For an obligation to provide reparation or compensation to arise on the part of a public entity, several conditions must be present:

• 1)an act or omission attributable to the Public Administration,
• 2)an unlawful injury that the governed party or victim is not required to bear, and
• 3)a direct and immediate cause-and-effect relationship between the administrative act or omission and the unlawful injury” (Jinesta Lobo, Ernesto. Tratado de Derecho Administrativo. Tomo II. Responsabilidad Administrativa. San José. 2005. Págs. 97 y 98). Therefore, under the Court’s reasoning, the following questions must be asked: was the State a civil defendant? Was a civil counterclaim filed against the State? The answers to the foregoing questions are no. The State was not a civil defendant; no counterclaim was filed against the State.

Then why is this analysis being conducted? To determine a liability of the State that had neither been sought nor discussed, a liability of the State that was not alleged through the legal means established by procedural law; thus, the Court provides no explanation other than to indicate that some of the accused were public officials.” (Cf. folios 172030 to 172031). The appellants state that State liability was not adjudicated in these proceedings because no private individual or administered party filed a civil claim against the State “... for the ‘alleged liability’ raised solely by the Court when it included the State as a party within seven of the eight groups subjectively determined to bear joint and several liability (responsabilidad solidaria), since it does not indicate the parameters it used to group the persons together and to include the State among them, or establish the causal link (nexo causal) necessary to attribute joint and several liability to the State together with the public officials, because the mere fact of holding public office is insufficient to make the State liable; rather, the conditions giving rise to such liability must be demonstrated.

In this case, the Court does not set out the evidentiary elements that led it to conclude that the conduct of the accused was attributable to the Public Administration, nor does it establish a direct cause-and-effect relationship between the conduct of the convicted persons attributable to the State and the resulting unlawful injury (lesión antijurídica). Instead, the Court merely states in its decision: ‘The particular feature of these proceedings is that not all of the accused participated in all of the charged criminal acts; rather, different groups of accused persons participated in specific acts, a circumstance requiring the identification and specification of each group of accused persons and third-party civil defendants (terceros demandados civiles) that might be jointly and severally liable among themselves, also in relation to specific acts and specific damages that those particular acts may have caused.

It therefore follows that there is no single item of damage for which all the accused and, potentially, third parties must be jointly and severally liable, which is the assumption on which the Instituto Costarricense de Electricidad and the Procuraduría General de la República quantified their civil claims. What may exist are damages caused by the criminal conduct of particular groups of accused persons, for which the accused within each group and, potentially, third parties would be jointly and severally liable, independently of any damages caused by other groups of accused persons. Based on a review of the indictment and the application of the rules governing joint and several liability already analyzed, the following groups of accused persons and civil defendants are identified as potentially jointly and severally liable among themselves for the losses and damages they may have caused in connection with specific, particular acts.

For purposes of determining civil liability, those acts are unrelated to one another, even though some groups share certain natural or legal persons as a common denominator. 1.- [Nombre015], [Nombre009], [Nombre004], Alcatel Cit, the State, the Instituto Costarricense de Electricidad, Servicios Notariales O. C.’, Selva La Marina S. A., Gambusinos S A., Finca Salitral S. A., Quántica S. A. and Punto de Negocios L. Q. C. S. A., all in connection with the offenses of penalty for the corruptor (penalidad del corruptor) attributed to [Nombre015] and [Nombre009] and aggravated corruption (corrupción agravada) attributed to [Nombre004]. 2.- [Nombre015], [Nombre009], [Nombre001], Alcatel Cit, the Instituto Costarricense de Electricidad, Servicios Notariales Q. C., Selva La Marina S. A., Gambu.sino.s S. .9., Finca Salitral S. A., Quántica S. A. and Punto de Negocios L. Q. C. S. A., all in connection with the offenses of penalty for the corruptor attributed to [Nombre015] and [Nombre009] and aggravated corruption attributed to [Nombre001]. 3.- [Nombre015], [Nombre009], [Nombre021], [Nombre024], Alcatel Cit, the State, the Instituto Costarricense de Electricidad, Servicios Notariales Q. C., Selva La Marina S. A., Gambu.sinos S A., Finca Salitral S. A., Quántica S. ,9. and Punto de Negocios L. Q. C. S A., all in connection with the offense of illicit enrichment (enriquecimiento ilícito) attributed, as thus reclassified, to [Nombre021], and the offenses of illicit enrichment and assistance after the fact (favorecimiento real) attributed to [Nombre024]. 4.- [Nombre015], [Nombre009], [Nombre026], [Nombre012], Alcatel Cit, the State, the Instituto Costarricense de Electricidad, Servicios Notariales Q. C., Selva La Marina S. A., Gambusino.s S. A., Finca Salitral S. A., Quántica S. A. and Punto de Negocios L. Q. (’.

S. A., all in connection with the offenses of penalty for the corruptor attributed to [Nombre015] and [Nombre009], aggravated corruption attributed to [Nombre026] (the criminal action having been suspended pursuant to prosecutorial discretion (criterio de oportunidad)), and incitement to aggravated corruption attributed to [Nombre012]. 5.- [Nombre015], [Nombre009], [Nombre007], Alcatel Cit, the Instituto Costarricense de Electricidad, Servicios Notariales Q. C., Selva La Marina S. A., Gambusinos S. A., Finca Salitral S. A., Quántica S. A. and Punto de Negocios L. Q. C. S. A., all in connection with 3 offenses of illicit enrichment attributed to [Nombre007]. 6.- [Nombre064], [Nombre018], [Nombre027], Alcatel Cit, the State, the Instituto Costarricense de Electricidad and Intelmar S. A., in connection with the acts constituting penalty for the corruptor attributed to [Nombre064] (already convicted) and [Nombre018], and aggravated corruption attributed to [Nombre027] (already convicted). 7.- [Nombre018], [Nombre026], the State and the Instituto Costarricense de Electricidad, in connection with the offenses of penalty for the corruptor attributed to the former and aggravated corruption attributed to the latter. 8.- [Nombre012] and the State, in connection with four offenses of illicit enrichment attributed to [Nombre012].’ (Emphasis not in the original.

Folios 1884 to 1886). In addition, at folio 1887 it determines that: ‘By quantifying their claims in the manner they did, the civil plaintiffs (actores civiles)—the Procuraduría General de la República and the Instituto Costarricense de Electricidad—left the Court unable to rule on the merits of those claims. To issue a valid ruling, the Court would have to separate the different groups of joint and several debtors, determine the specific acts attributable to each group, and determine the potential damage those acts may have caused to the Instituto Costarricense de Electricidad and/or to the collective and diffuse interests (intereses colectivos y difusos) represented by the Procuraduría General de la República. Only then could the civil claims be assessed, and they would have to be amended in accordance with the aforementioned factual grounds, which constitute their cause. This is not a task the Court may perform, because these are matters whose determination lies exclusively with the parties and not with the Court; were the Court to do so, it would lose its objectivity and impartiality by remedying the parties’ deficiencies and would violate the principle of congruence (principio de congruencia) by granting relief beyond that requested.’” (Cf. folios 172032 to 172034).

The petitioners contend that this analysis would be acceptable if some form of civil liability were being sought against the State, but that is not the case here. They therefore allege a violation of the principle of congruence and the principle of party autonomy (autonomía de la voluntad de las partes), because new civil defendants were included and assigned liability, thereby granting relief beyond that requested and taking everyone by surprise, since the new civil defendants were not mentioned until judgment was issued, after proceedings lasting nearly seven years. They invoke decision Nº 618-F-SI-2010, of 9:15 hours on 20 de mayo, regarding the principle of congruence: “(...) a principle under which the adjudicator, when deciding a case by judgment, must adhere to what the parties requested. If the adjudicator departs from the substantive claims in the complaint, different defects may arise: ultra petita, if relief exceeding that requested is granted; extra petita, when matters never requested or debated by the litigants are added; and otra petita, when a ruling is omitted on issues disputed by the parties.

Likewise, incongruence may arise from contradictory provisions in the judgment.” This is clear precedent establishing that the parties’ requests define the scope of the judicial dispute. It later quotes the following passage from the judgment, appearing at folio 1892: “When filing the civil action for damages (acción civil resarcitoria) and setting forth its claims, the Procuraduría General de la República could not disregard the fact that the State and the Instituto Costarricense de Electricidad were also designated by law as jointly and severally liable for the losses and damages to the collective or diffuse interests for which compensation is sought. This is because public officials from the Poder Ejecutivo, the Poder Legislativo and the Instituto Costarricense de Electricidad participated in the potential causation of the losses and damages.” Several lines later: “Like the Courts involved in the preparatory and intermediate proceedings, the civil defendants could also have alleged the identified defects in the civil actions for damages during the preceding stages instead of waiting until the closing arguments at trial; accordingly, they also bore a share of responsibility for the failure to remedy the defects and enable the Court to rule on the merits of the allegations, claims and defenses presented.” The appellants criticize this passage because it expresses a view on an issue that was never discussed—the alleged liability of the State and its corresponding joint and several liability and compensation—and because that issue was cited as the reason it was impossible to rule on the merits, even though no such claim had been asserted.

They consider that, even if some defense counsel mentioned the issue of State liability for the actions of public officials in their closing arguments, this did not constitute a formal submission capable of being granted by the Court. They insist that the Procuraduría General filed civil actions to claim compensation for the damage caused, which affected the entire country, by the scheme devised by those offering and receiving bribes to secure the tender for the 400 mil lines in exchange for gifts, a scheme the judgment found proven at folios 1216 and 1217. Consequently, the principle of congruence was violated by the failure to rule on the civil actions and their claims, specifically the request that all accused persons be ordered to pay compensation for the social harm (daño social) caused by the unlawful acts adjudicated in these proceedings. The principle of party autonomy was violated because, instead of ruling on the claims submitted by the parties involved, as was their duty, the adjudicators attributed liability to the civil plaintiffs, although they were not civil defendants, thereby taking all duly constituted parties by surprise.

They add: “In general terms and with reference to the civil plaintiffs—ICE and the Procuraduría General—the Court argues that, where acts giving rise to civil liability involve the participation of public officials, those entities are liable by law. That may be true if liability had been claimed against them by administered parties and if they had been named as civil defendants, but that is not the case here, because it is the State itself that is taking action to combat corruption by its officials. If the Court’s position were accepted, would the State or any autonomous institution seeking to report or prosecute corruption by its officials then be civilly liable?

Could the State or any autonomous institution seek to clean its own house of corruption without being held civilly liable for the very acts it reports? The argument is illogical and manifestly improper. As indicated supra, the Court erred in its decision because it treated the matter as a proceeding in which an individual subject to the administration seeks to hold the State liable, but that is not the case here, since in these proceedings it is the State itself that seeks to hold its corrupt officials liable—a responsibility owed to society” (Cfr. folio 172039). They emphasize that the plaintiffs had chosen the criminal proceeding (vía penal) in which to assert their civil claims and that the judges had jurisdiction to adjudicate them; therefore, they criticize and characterize as erroneous the decision to refer them to civil proceedings (vía civil), based on a mistaken interpretation of the Ley General de la Administración Pública, the Ley Orgánica de la Procuraduría General de la República (sections 1 and 3), and Article 38 of the Código Procesal Penal.

“From its mistaken perspective, the Court considers that, because the State bears liability, the Procuraduría, acting in representation of collective and diffuse interests (intereses colectivos y difusos), as provided in Article 38 of the Código Procesal Penal, should have asserted that liability against the State and, by failing to do so, violated Articles 20 and 21 of its Ley Orgánica, which is also incorrect. Although it is true that the Procuraduría participated in these proceedings by bringing a civil action for damages (acción civil resarcitoria) arising from harm to collective and diffuse interests, pursuant to section 38 of the Código Procesal Penal, it is also true that this activity does not extinguish the other functions or representative authority held by the Procuraduría under its Ley Orgánica...” (Cfr. folio 172041). They later add: “In the sense stated, it is clear that the authority to bring a civil action ‘in cases involving criminal offenses that affect collective and diffuse interests,’ set forth in Article 38 of the Código Procesal Penal, is merely an additional power granted by the legislature so that the Procuraduría may perform its duties; exercising that power could in no way be understood to mean that it ceases to be what it is or to perform its other functions.

In other words, there is no legal basis for concluding, as the Court does, that when this Representation exercises its power to file a civil action concerning criminal offenses that affect diffuse and collective interests—which, for purposes of the proceedings, constitutes ‘standing to sue’ (legitimación para accionar)—it ceases to be the State’s legal representative, which is ‘legal representation conferred by law’ (representación legal otorgada por ley); these are two entirely different things. From this perspective, interpreting these proceedings as involving a failure to comply with our obligations under Articles 20 and 21 of the Ley Orgánica de la Procuraduría General de la República because we did not sue the State after it was deemed civilly liable—in the Court’s logic, meaning that we failed to sue our ‘legally represented party’—is entirely illogical and irrational from a legal standpoint and would contravene our Ley Orgánica and the mandate contained therein.

The Court’s reasoning is therefore erroneous and consequently renders the challenged judgment defective due to erroneous interpretation resulting from a misapprehension of the provisions on which it is based, namely Articles 1, 20, and 21 of that body of law.” (Cfr. folio 172048 y 172049). Regarding Article 38 of the Código Procesal Penal, they consider it clear that the Procuraduría is granted an additional power, but not representative authority (which may or may not be exercised). They assert that the Court erred by equating procedural standing (legitimación procesal) to sue with legal representation of collective or diffuse interests. They then cite Article 1 of the Ley General de la Administración Pública to distinguish the two legal concepts (institutos) and state: “Article 38 grants the Procuraduría the standing necessary to bring civil actions in cases involving criminal offenses that affect collective or diffuse interests in order to recover social harm (daño social), but this is merely a power that legitimizes its participation in the proceedings.

If one seeks to identify who holds legal representation of society or who represents a society’s collective or diffuse interests, reference must be made to the foregoing concepts to conclude that it is the State, as the highest and primary embodiment of the Administración Pública, that represents society and its interests. Accordingly, to hold, as the Court does, that the Procuraduría represents diffuse and collective interests pursuant to Article 38 of the Código Procesal Penal is not only legally improper—because, under that interpretation, an article (Article 38 of the C.P.P.) would be disapplying a law (Ley Orgánica de la Procuraduría General), and only in specific cases—but would also once again make it impossible, as explained above, for the Procuraduría to bring a civil action against the party it legally represents, which is also the representative of the interests sought to be protected” (Cfr. folio 172050 y 172051).

In light of that error, the movants (gestionantes) request that the judgment be annulled and that the cited provisions be correctly applied. VI.- Fifth ground.- “Erroneous interpretation of Articles 106 of the Código Penal, 1046 of the Código Civil, and 113 of the Código Procesal Penal” (Cfr. folio 172051). They challenge the judgment’s analysis of the joint and several liability (responsabilidad solidaria) of the civil defendants (demandados civiles), whom it divides into groups; from the perspective of the Procuraduría General de la República, that analysis is erroneous because it considers it feasible to impose such joint and several liability on all civil defendants. In support of their position, they cite ruling 645-2010, issued at 15:00 on 4 de junio de 2010, which states, insofar as relevant: «The defining characteristic of a joint and several obligation (obligación solidaria) is that “... each debtor is directly obligated to pay the entire debt... ” (Brenes Córdoba, Alberto: Tratado de las Obligaciones, 7a edición, Juricentro, San José, 2006, pp. 56-57).

The same author later specifies: “...What properly constitutes joint and several liability... (is) the circumstance of being directly liable ‘for the whole and as debtor of the whole’; this is the meaning of the Latin phrase in totum et totalíter, commonly used to characterize a joint and several undertaking... ” (O p. C i t, p. 58). The creditor’s right of election, or the power “...to demand performance from one debtor, from all of them simultaneously, or successively... ” (Op. Cit, p. 59), is precisely the protection that joint and several liability affords the creditor (Article 640 of the Código Civil), and it is defeated by the division into shares undertaken by the court below (a quo), based on an erroneous interpretation of Article 135 of the rules on civil liability currently in force from the Código Penal de 1941, a provision that the appellants also invoke incorrectly. The aforementioned section 135 provides: “...The obligation of the participants in a criminal offense is joint and several with respect to civil reparation; but among themselves, each shall be liable for the share assigned by the judge according to that person’s participation... ” The phrase “each shall be liable for the share assigned by the judge according to that person’s participation...” does not, of course, refer to dividing liability or converting it into a jointly apportioned obligation (obligación mancomunada).

Rather, it refers to the right of recourse (acción de regreso) that joint and several debtors possess among themselves (section 651 of the Código Civil). In other words, after one of the debtors has made partial or full payment, that debtor may claim reimbursement from the others for the payment they are obligated to cover, together with the costs and interest accruing from the date of payment, according to their share of liability. This, however, is a right of the joint and several co-debtors that they may exercise subsequently, not a defense enforceable against the creditor or a provision authorizing the Court to divide liability into shares because, as stated, doing so would nullify the right of election intrinsic to a joint and several obligation. Finally, the fact that the civil plaintiffs (actores civiles) did not challenge the allocation of the total payment for non-pecuniary harm (daño moral) into shares or fractions in the challenged judgment does not imply a tacit waiver of joint and several liability and, consequently, of the right to choose against whom to proceed in enforcing the obligation owed to them.

This is because the grounds for deeming joint and several liability waived are exhaustively set forth in Article 647 of the Código Civil, in addition to the fact that ‘... A waiver of joint and several liability is not presumed, because an intent to make a gift or to abandon a right without cause is never presumed...’ (Brenes Córdoba, Op. Cit, p. 62).” Under this correct understanding, the Court should have ordered all those accused to pay the entirety of the social harm suffered, rather than assigning proportional liability to each group, because they all contributed, through a specific function, to the successful execution of the overall plan of action» (Cfr. folios 172054 y 172055). They reiterate that joint and several liability was sought against all participants (pursuant to Articles 106 of the Código Penal and 1046 of the Código Civil); the Court therefore should have ruled on the merits because, even though it divided the defendants into groups, it consistently referred to those persons’ joint and several liability (the movants cite Sala Tercera ruling Nº 238-2009, issued at 9:48 on 13 de marzo, on this issue).

They consider Articles 106 of the Código Penal, 1046 of the Código Civil, and 113 of the Código Procesal Penal to have been violated, emphasizing that the last of these provisions allows a civil plaintiff to direct the claim against whichever defendants the plaintiff considers appropriate (under the principle of party autonomy (principio de autonomía de las partes)). They cite the text by Dr. Juan Marcos Rivero Sánchez (Responsabilidad Civil, Tomo II, segunda edición, página 347), as well as Dr. Javier Llobet Rodríguez in his work Proceso Penal Comentado, cuarta edición, página 269, where he comments on the related Article 113 and states: “Because the exercise of a civil action is a matter of private interest, anyone who believes that they have suffered harm may direct the action against one or more of the accused, against one or more potential civil defendants, or against all of them. ...

Regarding civil liability, it is important to bear in mind that the Código Penal provides for the joint and several liability of all participants, which means that, in principle, it is unnecessary to sue all of the accused; instead, the civil plaintiff may choose whom to sue. From this perspective, there is no mandatory joinder of defendants (litisconsorcio pasiva necesaria).” On this issue, the movants mention rulings of this Court (638-2006, issued at 15:45 on 28 de junio). Regarding the trial court’s argument that the accused participated at different stages or engaged in different conduct, they consider that the issue does not concern establishing the harm, but rather quantifying it in relation to each defendant’s participation. This did not prevent the judges from adjudicating the merits of the civil action, ordering the defendants jointly and severally liable, and then referring the matter to the appropriate proceeding to determine each defendant’s quantum.

Regarding the rejection of the argument concerning joint and several liability (solidaridad) among the groups of defendants (upheld in the judgment), and in support of joint and several liability among all of them, they state: “The harm for which compensation is sought is the social harm (daño social) caused by acts of corruption, and such damages are intended to compensate society, which is affected by acts of corruption committed by its public officials. From this perspective, society as a whole is affected, rather than its individual members specifically; therefore, the harm suffered is general and constitutes a single harm. Furthermore, the actions undertaken by the accused show that they were all directed toward a common purpose: in this case, for Alcatel to succeed in breaking the monopoly over the supply of cellular services, for the public tender (licitación pública) to be conducted, and for Alcatel to be awarded the contract.

These events occurred and were deemed proven in the judgment now being challenged. In other words, the Court does not analyze the common purpose of the conduct undertaken by the accused or how all such actions, as acts of corruption, were intended to achieve a common purpose, namely, securing the final award of a contract. The Court’s grouping of the defendants is highly subjective and is based on the offenses charged against them and on the concept of public officials used to establish State liability (responsabilidad del Estado), which is incorrect, as discussed above. Moreover, these acts are interconnected, because the result sought and obtained was not achieved by one person alone, but by all of them acting together. To demonstrate the Court’s subjectivity in defining the groups, one need only consider that, if the groups were instead determined on the basis of the actions undertaken by Alcatel’s representatives, no such groups would exist, because those representatives participated with all the other accused in the acts at issue” (See folios 172063 and 172064). They request that the judgment be vacated and that the cited provisions be correctly applied.

XVII. RULING ON THE APPEAL FILED BY THE PROCURADURÍA GENERAL DE LA REPÚBLICA.-

Regarding the civil claims (extremos civiles) submitted by attorneys Gilberth Calderón Alvarado, Public Ethics Attorney, and Miguel Horacio Cortés Chaves, Deputy Public Ethics Attorney, acting as representatives of the State and appearing as Civil Plaintiffs (Actores Civiles), this Chamber has already sustained the objections raised by attorney Cristian Arguedas Arguedas, who challenged the trial court’s decision to omit a ruling on the civil actions filed by the Procuraduría General de la República and the Instituto Costarricense de Electricidad; the extended effect (efecto extensivo) was applied and the case was remanded for new proceedings in accordance with law regarding those claims. In the interest of procedural economy (economía procesal), an express ruling on the objections raised is omitted because they concern substantive issues that must be examined specifically in the remand proceedings already ordered with respect to the relevant civil action for damages (acción civil resarcitoria).

XVII. APPEAL FILED BY ATTORNEY MARIO NAVARRO ARIAS.-

Attorney Mario Navarro Arias, special judicial attorney-in-fact (apoderado especial judicial) for the civil defendants (demandados civiles), Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A.; La Selva de la Marina S.A.; Servicios Notariales QC S.A.; and [Nombre009] in his personal capacity, pursuant to Articles 39 and 41 of the Constitución Política and Articles 1, 142, 184, 363, 367, 369 subsections b), c), d), 437, 438, 439, 447, 458, 459, and 460 of the Código Procesal Penal, joins the cassation appeals (recursos de casación) filed against judgment number 167-2011, issued by the Tribunal Penal de Hacienda y la Función Pública of the Segundo Circuito Judicial de San José at 15 hours on 27 de abril de 2011, by civil defendants [Nombre012] and Alcatel Lucent-France, the Procuraduría General de la República, and the Instituto Costarricense de el Instituto Costarricense de Electricidad (the latter acting as civil plaintiffs).

First ground.- He alleges a failure to state reasons (falta de motivación) for denying the award of costs (condenatoria en costas), in violation of Articles 39 and 41 of the Constitución Política and Articles 363 and 369 of the Código Procesal Penal, because the court merely referred to the fact that it had dismissed the civil complaints and attributed to the civil defendants—in part—responsibility for the consequences of those complaints. They characterize that reasoning as generic and object to the absence of an examination of the procedure followed for the civil action within the proceeding: the filing of the complaint, their participation in the preliminary hearing (audiencia preliminar), where they objected to defects in the civil actions, and their participation in the adversarial proceedings (contradictorio): “Ergo, this representation NEVER CONTRIBUTED TO OR ACCEPTED THE DEFECTS IN THE CIVIL ACTIONS, and NOT TO MENTION THE ICE ACTION, WHICH AMENDED ITS CLAIMS AT THE PRELIMINARY HEARING, WHEN IT COULD NOT DO SO, AND AT THE CLOSING-ARGUMENT STAGE, when it was likewise not permitted to do so.

And we, as civil defendants, objected to those circumstances, CONSIDERING THE CIVIL ACTIONS RECKLESS. Nevertheless, as we note in this section, the exemption from payment of costs is based on reasons that the court does not adequately substantiate, leaving the judgment devoid of reasoning and causing the decision in this respect to contain an unavoidable defect, which must be declared as such and a partial remand trial (juicio de reenvío parcial) ordered” (Sic. Cf. folio 171415). Second ground.- He considers that Articles 267 and 270 CPP were erroneously applied and that Article 221 CPC, in relation to Article 266 CPP, was not applied. He explains that Report Nº 202 of the Economic Crimes Section of the Organismo de Investigación Judicial establishes that the civil defendants Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., and La Selva de la Marina S.A. received funds from Servicios Notariales QC S.A. originating from Alcatel; that is, the court found it proven that they were private funds, not public funds.

He adds: “The Court dismisses the actions against all the civil parties, but OMITS ALL REASONING REGARDING THE whom I represent as third parties this, AND THE REMAINING ALCATEL PARTIES, who were not BUFETE VALERIO CASAFONT Y ASOCIADOS, and two companies THAT BENEFITED BY MORE THAN ONE The Court also does not address the fact that THE CIVIL DEFENDANTS THROUGH SERVICIOS as to the filing THE PROCURADURÍA FAILED TO PERFORM ITS LEGAL DUTY by disregarding Articles 20 and 21 of its Organic Law. That it should have sued the State and ICE because state officials, the President of the Republic and a Deputy, as well as ICE officials of various kinds, committed criminal acts. That not all civil defendants participated in all the acts. And it is evident that THE CIVIL DEFENDANTS whom I represent, PUNTO DE NEGOCIOS, QUANTICA, FINCA SALITRAL, AND LA SELVA DE LA MARINA, all corporations, have nothing to do with the CONDUCT OF [Nombre009], [Nombre024], [Nombre026], [Nombre001], [Nombre004], [Nombre018], [Nombre012], [Nombre021]” (Literal copy of the original.

Cf. folio 171416). He points out that for seven years the parties he represents endured the proceeding against them and, therefore, the actions filed and dismissed must have consequences. He states: “The basis for avoiding those consequences would be a plausible reason to litigate, and we, the representatives of Punto de Negocios, La Selva de la Marina, Quántica, and Gambusinos, ask: Where is the plausible reason to litigate if no CAUSAL NEXUS IS ESTABLISHED BETWEEN THOSE DEFENDANTS AND THE ACTS OF THE ACCUSED WHO WERE SENTENCED? What money BELONGING TO ICE OR TO THE STATE came into the hands of the civil defendants? And the same question should be asked here regarding the funds received by Servicios Notariales QC S.A. and [Nombre009] in his personal capacity. The claims were confused, and joint and several liability (solidaridad) was not properly established. The complaints were dismissed, and their proponents must therefore bear the consequences” (Cf. folio 171417).

In sum, he requests that the civil plaintiffs (Instituto Costarricense de Electricidad and the State) be ordered to pay the costs of the proceeding, including the cassation appeal. Third ground.- He objects to the erroneous interpretation of Article 277 CPC concerning compensation for damages (indemnización de daños y perjuicios). He states that, because the judgment omitted a decision on the merits, it orders that the attachments (embargos) imposed be lifted and rejects the award of compensation for damages. Then, regarding the possibility mentioned in the judgment of pursuing the matter through civil proceedings, he states: “First, the Court’s decision to give the plaintiffs the possibility of resorting to ordinary proceedings, we presume, in pursuit of their interests, is unfortunate. That decision is permissible provided that the plaintiff has not endured everything entailed by the civil proceeding within the criminal proceeding.

The trial court disregards the procedural principle of ‘choice of forum.’ The plaintiffs chose to pursue the civil action within the criminal proceeding in furtherance of their interests. This is so much the case that cassation appeals filed by the civil plaintiffs are even pending. The fact that the Court dismissed their complaints because of defects in the CLAIMS cannot serve as grounds for referring the parties to a subsequent civil claim. The plaintiffs exhausted the criminal proceeding as the avenue for possible compensation; the fact that they did not know how to do so does not entitle them to retain standing to pursue it through ordinary civil proceedings. The Court’s interpretation truly does violate Article 2 of the Código Procesal Penal. The court knows the law, and under that premise it is evident that the Court is improperly benefiting one of the parties to the proceeding because of that party’s own poor conduct.

The complaint was DEFINITIVELY DISMISSED IN THE JUDGMENT of the Criminal Court; as a consequence, the lifting of the attachments was ordered, and in that event the cash must be allocated to the civil defendants as compensation for damages, as a fixed award: that is the content and spirit of the provision at issue. (...) For seven years, the civil defendants whom I represent had to endure a civil proceeding brought within a criminal proceeding, including attachment, while waiting for the claims to be rejected on procedural and substantive grounds. In its judgment, after those seven torturous years, the Court decided to reject the claims as defective. It was necessary to wait until the parties’ closing arguments to learn what those claims were, and the defendants did their part by opposing the relief sought by the plaintiffs. And we return to the issue raised in the preceding grounds: What do the civil defendants—the corporations I represent—and [Nombre009] in his personal capacity have to do with public monies or funds?

Nothing, nothing, and nothing. What do the corporations I represent have to do with the conduct of those convicted? Where is the causal nexus between the criminal act and the civil complaint? There is no answer to this question because the Court dismissed the civil complaints due to DEFECTS IN THE CLAIMS, ESPECIALLY REGARDING JOINT AND SEVERAL LIABILITY” (Cf. folios 171418 and 171419). He cites ruling Nº 115-1995, of 18 de octubre, and requests that the appeal be granted, that the judgment be reversed insofar as it denies compensation for damages, and that the case be returned to the trial court so that it may make the “disbursements” to the civil defendants in the appropriate proportions according to the complaints filed.

XVIII. RULING ON THE APPEAL FILED BY ATTORNEY MARIO NAVARRO ARIAS.-

Regarding the civil claims submitted by attorney Mario Navarro Arias, special judicial attorney-in-fact for the civil defendants Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A.; La Selva de la Marina S.A.; Servicios Notariales QC S.A.; and [Nombre009] in his personal capacity, this Chamber has already sustained the objections raised by attorney Cristian Arguedas Arguedas, who challenged the trial court’s decision to omit a ruling on the civil actions filed by the Procuraduría General de la República and the Instituto Costarricense de Electricidad; the extended effect was applied and the case was remanded for new proceedings in accordance with law regarding those claims (including costs). In the interest of procedural economy, an express ruling on the objections raised is omitted because they concern substantive issues that must be examined specifically in the remand proceedings already ordered with respect to the relevant civil action for damages.

XIX.APPEAL FILED BY ATTORNEY MARIO GONZALO SOTO BALTODANO.- Attorney Mario Gonzalo Soto Baltodano, president with the powers of a general attorney-in-fact without limitation as to amount of JURISO, S.A., files, against judgment Nº 167-2011, issued at 15:00 hours on 27 de abril de 2011 by the Treasury Criminal Court of the Second Judicial Circuit of San José, an appeal against the judgment (cf. 172884 to 172915, volume XXXIX), as well as an appeal in cassation (cf. folios 17062 to 17082, volume XXXVI). Given that the claims in both challenges coincide, the claims are set forth below, with some verbatim quotations from the second challenge, corresponding to the appeal against the judgment. First ground.- He explains that the aforementioned company owns the Suzuki vehicle, license plates [Valor033], whose forfeiture (comiso) was ordered in the challenged judgment; his client is an interested third party and was never notified of the proceedings, even though it is a good-faith owner.

He states: “That asset was acquired in reliance on the Public Registry, free of liens and recorded encumbrances, for good cause and at its assessed value. The sale price was paid by applying my fees in the amount of the vehicle’s assessed value, thereby settling the Defense of [Nombre001], which I conducted until [Nombre001] himself replaced me, on 30 de agosto de 2006 (evidence 1, certification of transfer and replacement [Nombre001]). In other words, the transfer of the car satisfied the fees. The transfer was made by a third person who, at that time, was the company owner’s general attorney-in-fact and whom I had always known as the person representing the Venezuelan interests in my client’s business dealings. That deed was executed when the State had only a mere expectancy of a right in these proceedings; there was no judgment. On the contrary, there were rulings by the Trial Court of the II Judicial Circuit of San José, Goicoechea, that ran counter to that expectancy of a right.

Thus, the Criminal Court of the Second Judicial Circuit of San José issued voto 246-05 at 16:15 hours on 12 de mayo del 2005, taking into account that ‘the Public Prosecution Service requested an extension of the precautionary measures (medidas cautelares) and therefore asks that the challenged ruling be upheld. An examination of the record shows that the Public Prosecution Service based its initial request on allegations that the accused had concealed facts and performed acts to obstruct the investigation after his preliminary statement. In its request, the Public Prosecution Service cites as an example of such conduct the transfer of certain vehicles, as recorded at folios 188 et seq. However, the transfer deed is dated setiembre de dos mil cuatro, and [Nombre069] states that it was indeed around that time that the accused [Nombre029], the accused’s sister, asked her to purchase several companies to which the vehicles were subsequently transferred.

The accused gave his preliminary statement on 8 de octubre de dos mil cuatro and said that he accepted the facts. If, on that date, the Public Prosecution Service was unaware of those transfers, nothing required the accused to incriminate himself with respect to acts that were not being attributed to him. The fact is that those circumstances occurred before the preliminary statement, and therefore we cannot say that the accused’s situation had changed or that he performed subsequent acts to obstruct the investigation... As a necessary consequence, the ruling is reversed’” (Cf. folios 172886 and 172887). The appellant states that this was a liquid and enforceable debt because the fees are entitled to priority in collection, and that the company’s attorney-in-fact intended to sell him the vehicle in payment for his professional services, while the motor vehicle was free of attachments, recorded encumbrances, and liens.

He explains that he acquired the vehicle in the name of JURISO S.a., where he places his assets. He considers his client to be a third party with a superior right, whose right arose before the challenged judgment. He adds: “When the rulings on precautionary measures of which I was aware—that is, through agosto del 2006—had rejected such measures against both the accused and the vehicle. That is confirmed by the fact that the vehicle’s Registry record is completely clear; no recorded encumbrance, attachment, or forfeiture had been declared. In fact, the recorded encumbrance had been rejected” (Cf. folio 172888). He mentions the ruling issued at 15 hours on 23 de noviembre de 2006 by the Criminal Court of the Second Judicial Circuit of San José, rejecting the precautionary measures against [Nombre001], in which fact 85 specifically refers to the Suzuki, license plates [Valor033]. In short, when he withdrew from the defense, all the rulings issued had rejected any claim to that asset; such claims were mere expectancies, [Nombre001] had not been convicted of fraud, and there were no precautionary measures, whereas his entitlement to fees was a prior, enforceable, due, and outstanding debt.

In other words, the transfer in favor of JURISO S.A. was a lawful act made in payment of a preexisting debt, proven in the same case file by the professional work performed in the proceedings: precautionary measures, witness testimony, negotiations concerning alternative measures, expedited proceedings, and many hours of study and consultation. He requests that the judgment be quashed and the case remanded for a decision in accordance with law; alternatively, that the forfeiture be reversed because his “interested party” is the lawful owner. Second ground.- He alleges, as a violation of due process, the infringement of Articles 39 and 41 of the Political Constitution; he mentions constitutional Article 45 and Article 110 of the Criminal Code, reproduces the contents of Article 2 of the Judicial Notifications Act and Article 449 of the Civil Code, and then alleges the failure to notify his client JURISO S.A. (the registered owner of vehicle [Valor033]) or Dominical Antigua S.A. (the former owner), at least of the civil actions, the setting of the trial date, and the judgment.

This caused prejudice by ordering the forfeiture of that asset and by annulling, in the challenged judgment, the deed that placed the asset in the name of Dominical Antigua S.A. (even though the Public Registry shows that the vehicle belonged to JURISO S.A.). Accordingly, he objects that an asset belonging to a third party unconnected with the proceedings was forfeited. He cites voto Nº 482-G of the First Civil Court, Second Section of San José, issued at 8:35 hours on 11 de marzo de 2004: “III.- The appellant further states that the debtor [Nombre090] cannot assert valid payment because ownership of a claim passes to the assignee solely by virtue of the assignment; that in this case the debtor expressly waived notification of the assignment; and that, because a registered pledge provides public notice through the registry, the debtor was required to consult the Public Registry and verify the identity of his creditor before making payment.” He considers that a public authority intending to forfeit an asset has the same duty as a notary: to consult the registry, because it will create, modify, or extinguish rights held by persons.

He states that in this case, even though only the transfer to Dominical Antigua S.A.—and not the transfer to his client—was annulled (and the latter therefore remains fully valid), forfeiture was ordered, affecting JURISO S.A. as a third party unconnected with the proceedings. He requests that the judgment be annulled, in whole or in part, reversing the forfeiture against his client; in the alternative, he requests that the forfeiture order be reversed because the owner should not be adversely affected. Third ground.- Pursuant to Articles 142 and 369(d) of the Code of Criminal Procedure and Article 110 of the Criminal Code, he alleges contradictory reasoning and failure to observe the rules of sound rational judgment (sana crítica racional) in the examination of evidence of decisive value. He considers that the rules of correct human understanding were violated in finding [Nombre001] criminally responsible as the perpetrator of aggravated corruption in the form of improper bribery (cohecho impropio), because there is no correlation between the proven facts and the admitted evidence, despite the absence of evidence, to such an extent that it is impossible to specify the facts alleged in the accusation and the judgment.

He reproduces the findings established in the judgment concerning [Nombre001]’s participation (facts 44, 45, 130, and 131), followed by the relevant documentary evidence (corresponding to seizure records 383988 and 383889 of 21 de julio de 2005; seizure records 386753 and 386754, appearing in volume IX, folios 3600 to 3601, from Banco Cuscatlán), and adds: “In other words, although the Court stated in proven facts of decisive value, namely facts 130 and 131, that: ‘It was agreed that delivery would be conditional upon the actual award of the bid that Alcatel would submit to ICE,’ it fails to analyze the investment certificates, which directly show the contrary. If the award was made on 18 de enero de 2002 and the approval by the Office of the Comptroller General was issued on 7 de marzo de 2002, it cannot be asserted, as the sentencing Court does, that delivery would be conditional upon the actual award of the bid, because [Nombre001] had $20.000.00 in his possession by 10 de diciembre de 2001.

In other words, sums were transferred to him before the conditions described in the judgment occurred. This contradiction is also apparent in the table entitled DELIVERY OF FUNDS TO PUBLIC OFFICIALS, on page 1712 of the Judgment, which states: ‘QC Notarial Services, 13 de febrero de 2002, [Nombre001].’ In other words, additional funds had also been transferred to [Nombre001] before the date of the approval by the Office of the Comptroller General; moreover, he had frequently traveled abroad, as shown by the table entitled Delivery of Funds to Public Officials on page 1712 and the analysis in Judge Camacho’s dissenting opinion...” (cf. folios 172900 and 172901). The appellant considers that a clear, precise, and detailed account was never provided of the facts constituting those necessary actions or of what had been agreed, as alleged in the accusation. He asserts that fact 130 contains a “false-cause fallacy,” in violation of Article142 of the Code of Criminal Procedure, by stating that the “necessary actions” occurred within the scope of his duties as an adviser to the Executive Presidency of ICE and as the person responsible for implementing the 400.000-line project, in order to secure the contract in favor of Alcatel.

In the movant’s view, this implies that [Nombre001] could override the Board of Directors, [Nombre061] (ICE’s deputy manager for Telecommunications and signatory to the contract), [Nombre052] (executive president), all members of the committee appointed for that project, and the Office of the Comptroller General of the Republic; this is legally and functionally false. He states that, although at the express request of the Public Prosecution Service the details of [Nombre001]’s duties appear at folio 1569 et seq. (volume V), neither the accusation nor the judgment specifies which of those duties he performed in favor of Alcatel’s bid, “... much less when, only on 21 de diciembre de 2010 and 15 de enero de 2001, [Nombre052] was asking the Office of the Comptroller General for authorization for the direct purchase (the approval of expedited tendering proceeding 01-2001 did not exist), and [Nombre001] had already received the money certificates in diciembre de 2001.

With all due respect, it is absurd to convict [Nombre001] when, at the historical moment when he received the money, the tender did not even exist, nor were they contemplating it. The tender was not approved until March of the following year, 7 de marzo de 2002” (Cf. folio 172904).

He states that it also appears at folio 1795 (volume V) that the Director of Human Resources, [Nombre087], certifies that [Nombre001] worked at the institution only in the Executive Presidency, thus raising the question of what conduct meeting the elements of an offense, unlawful and culpable (acción típica, antijurídica y culpable) was carried out by [Nombre001] to favor Alcatel in the awarded bidding process (licitación). He objects that the judges did not weigh the evidence at folios 1569 and 1795 showing that the defendant (encartado), [Nombre001], was neither subject to an exclusive-service arrangement (dedicación exclusiva) nor to a prohibition (prohibición); consequently, it was not shown that the monies received before abbreviated proceeding (proceso abreviado) 01-2001 were unlawful or related to the proceeding. They assert that the judges failed to analyze that, according to the document at folio 1569, [Nombre001]’s duties were subject and subordinate to the Executive Presidency; consequently, the “necessary actions” could not have been actions of the accused (imputado), because he lacked the authority to decide and execute them (citing Article 11 of the Ley General de la Administración Pública).

He requests that the judgment be quashed (case) and the matter remanded (reenvío) for processing in accordance with law, or, alternatively, that it be decided in accordance with Article 9 of the Código Procesal Penal by entering a judgment of acquittal (sentencia absolutoria) in favor of the accused [Nombre001] and, consequently, reversing the forfeiture (comiso) ordered with respect to his client’s vehicle. Fourth ground. He alleges the erroneous application of Article 340 of the Código Penal (passive bribery for a lawful act (cohecho impropio)), because, although the duties performed by [Nombre001], the person subject to trial (justiciable), were known, the specific act within the scope of his duties that he performed is not identified, and the ruling merely refers to “necessary actions.” After questioning what that expression could mean, he asks how “necessary actions” could have been carried out on 10 de diciembre de 2001 in relation to a bidding process whose contract was not executed until 18 de enero de 2002 and was approved in marzo de 2002.

He adds: “He did, however, travel abroad in diciembre del 2001, as already stated. But it is worth noting that his departures from the country occurred on weekends or during vacations, meaning that they were unrelated to his duties. Nor was it shown that the money received by [Nombre001] arose from his duties; it is not known why the money and the travel coincided on vacation days or weekends, but that excludes, in principle, the possibility that the act occurred in Costa Rica and, above all, excludes the possibility that it was a matter connected with abbreviated proceeding 01-2001. In other words, an element of the criminal offense (tipo penal) was not satisfied, and the conduct did not meet the statutory elements of the offense (falta de tipicidad), in violation of the Código Penal” (Cf. folios 172908 and 172909). He cites Articles 1 and 4 of the Código Penal and then requests that the judgment convicting defendant [Nombre001] be vacated and that a judgment of acquittal be entered, releasing him from all punishment and liability.

Fifth ground.- He alleges that act 187 of the judgment does not meet the statutory elements of the offense because, in his view, criminal intent (dolo) was not shown so as to establish sham-transaction fraud (fraude de simulación). He states: “1. It was never proven that the accused knew of the media reports against Servicios Notariales QC, so as to show that he knew the origin of the money; as demonstrated in the preceding grounds of appeal (agravios), the reasons why he received those sums are not those stated in the judgment. 2. Nor was the whereabouts of the vehicles established so as to show that the act was simulated and not genuine; that is, it cannot be asserted that the accused retained possession of the motor vehicles and thereby benefited. 3. Nor were corporate-registry searches conducted regarding the company that acquired the vehicles in act 187 to determine whether that company was always controlled by the accused or whether it passed into the hands of third parties. 4.

Nor was it shown that the accused always retained possession of the shareholding. 5. The evidence obtained from CUSCATLÁN INTERNACIONAL was unlawfully brought into the proceedings, and we request that it be so declared, because, as shown in the bank documents themselves, that institution is based in Bahamas and not in Costa Rica. 6. The transfers of the vehicles occurred before the examination of the accused (indagatoria) concerning sham-transaction fraud; therefore, the accused was under no obligation to incriminate himself regarding acts that had not been attributed to him” (Cf. folio 172910). In the appellant’s view, the undue benefit (beneficio indebido) was not established and, among the other matters indicated above, neither was any simulated act, contract, undertaking, or court filing ultimately established as having been made for the purpose of obtaining an undue benefit and causing harm to another person.

He requests that the judgment of conviction be vacated and that a judgment of acquittal be entered in favor of accused [Nombre001], vacating both the conviction and the declaration of falsity (declaratoria de falsedad).

XX.RULING ON THE APPEAL FILED BY ATTORNEY MARIO GONZALO SOTO BALTODANO.- The judgment states that, at the request of the Ministerio Público and the Procuraduría General de la República, the Trial Court ordered the forfeiture (comiso) of vehicle license plate Nº [Valor033], registered in the name of Dominical Antigua S.A., following a declaration that public deed Nº [Valor060], executed by Notary [Nombre028], was legally false, and ordered the corresponding corrections to the registry. Regardless of the arguments raised by the appellant challenging the criminal liability attributed to defendant [Nombre001] for the offense of fraudulent simulation, with respect to the aforementioned motor vehicle transferred by deed Nº [Valor060] (a matter already addressed by this Chamber, which affirmed the conviction), the fact remains that, as regards attorney Mario Gonzalo Soto Baltodano, in his capacity as president of JURISO, S.A., vested with powers as a general attorney-in-fact without limitation as to amount (apoderado generalísimo sin límite de suma), there was indeed a violation of due process, because he could be a good-faith third party affected by the forfeiture ordered in the judgment.

An examination of the record reveals the following relevant information: There is a photocopy of a certificate for vehicle license plate Nº [Valor033], showing the appellant’s principal, JURISO, S.A., as the registered owner; in the description of the owner’s particulars, it may be read that the document was filed on tres de julio de dos mil nueve. The record does not show that, when the oral and public trial took place (beginning on catorce de abril de dos mil diez, see folio 14082, Volume XXIX), the representative of JURISO, S.A. participated in the criminal proceeding at issue. Ordering forfeiture under such circumstances therefore constitutes a violation of due process warranting annulment of that order and remand (reenvío) for new proceedings in accordance with law. Accordingly, the appeal filed by attorney Mario Gonzalo Soto Baltodano, president of JURISO, S.A., vested with powers as a general attorney-in-fact without limitation as to amount, is granted.

The forfeiture of the Suzuki Jimmy vehicle, license plate [Valor033], is annulled, and that issue is remanded for proceedings in accordance with law; the appellant herein must be summoned so that he has an opportunity to exercise the rights afforded to him by law.

In view of this ruling, no determination is made regarding the appellant’s other claims, since most of them concern the merits, which must be resolved in the remanded proceedings.

XXI.APPEAL FILED BY ATTORNEY JUAN LUIS VARGAS VARGAS.- Attorney Juan Luis Vargas Vargas, special litigation attorney-in-fact (apoderado especial judicial) for [Nombre002], president of Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, vested with full powers without limitation as to amount, filed an appeal from judgment Nº 167-2011, issued at 15:00 on 27 de abril de 2011 by the Tribunal Penal de Hacienda del Segundo Circuito Judicial de San José (see 172273 to 172291), as well as an appeal on points of law (recurso de casación) (see folios 17649 to 17674). Addressing his standing to appeal, he explains that both legal scholarship and case law (judgments Nº 138-91, Nº 1080-98-98, Nº 583-2003, 712-2006 and 125-2010 Sala Tercera, Nº 5447-95, Nº 4121-96 and Mº 5464-96 of the Sala Constitucional) recognize that right in persons who, although not parties to the criminal proceeding, are “interested affected third parties” when the judgment orders the forfeiture of property belonging to them, as in his case.

Because the claims in both challenges coincide, the claims are set forth below, with some verbatim quotations from the second challenge, corresponding to the appeal from judgment. Sole ground.- “Violation of due process through infringement of the right of defense due to the forfeiture of real property belonging to a corporation” (See folio 172279). In violation of Articles 39 and 41 of the Constitución Política, Article 8 subsection 1) of the Convención Americana sobre Derechos Humanos, Article 369 subsection j) of the Código Procesal Penal, and Articles 103 and 110 of the Código Penal, the rights to due process, defense, and a hearing of the company owning real property whose forfeiture was ordered in the judgment were infringed. Citing legal scholarship and rulings of the Corte Interamericana de Derechos Humanos, the Sala Tercera, and the Costa Rican Sala Constitucional concerning due process, he explains that, in the challenged judgment, the Trial Court ordered the forfeiture of property [Valor061] (as stated at folio 1543 of the judgment), belonging to Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, corporate identification number 3-101-272513, without ensuring its participation in the proceeding.

He asserts that the grounds stated by the court for ordering forfeiture are invalid because, in his view, they consist of “mere general assertions without specific reference to the case and, above all, to the participation of the company whose repeatedly cited real property is being forfeited. The defect alleged under this ground prevented the sentencing court from issuing any ruling on forfeiture because the minimum prerequisites for adversarial proceedings had not been established so as to guarantee that the defense of the affected company had been heard. In this regard, the decision on forfeiture was not based on prior argument between the parties, as required in an adversarial system, particularly on an issue involving the loss of ownership of property. For that reason, the decision ordering forfeiture in the judgment was unexpected, because throughout the processing of this case no notice whatsoever was served on the aforementioned company, and it was therefore afforded no opportunity to state its reasons for opposing the possibility of losing ownership of the property in favor of the State” (See folio 172286).

In other words, the judges ordered the forfeiture of real property without affording the owner company an opportunity to defend itself, thereby causing it irreparable harm. He criticizes the practice in prior rulings of partially annulling the decision and remanding the matter for new proceedings when defects such as the one alleged are found (for example, judgment Nº 96-2009 Sala Tercera), because: (i) It would give an undue advantage to the civil claimants, who failed to bring their claims in a timely and proper manner. He states: “This entails a violation of the rule governing defective procedural acts, which establishes that a criminal proceeding may not, under the pretext of repeating an act, be returned to stages that have already become final” (See folio 172289). (ii) “Given the magnitude of the alleged procedural defect, which resulted in the complete exclusion of the affected company, which was never heard, the partial repetition of the trial and judgment is not the appropriate mechanism for restoring the company’s right to participate.

This is so because ordering partial nullity would entail depriving it of the opportunity to offer evidence and rebut the evidence and arguments of the claimants at an intermediate stage that has already become final” (See folios 172289 and 172290). He requests that the appeal be granted and that the judgment be partially annulled solely insofar as it ordered the forfeiture of the property registered under sequence number [Valor061], in the Guanacaste Registry District, belonging to Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima.

XXII.RULING ON THE APPEAL FILED BY ATTORNEY JUAN LUIS VARGAS VARGAS.- The judgment states that, by majority vote and at the request of the Ministerio Público and the Procuraduría General de la República, the Trial Court ordered the forfeiture of the property registered under sequence number [Valor061], in the Guanacaste Registry District, belonging to Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima. In its majority opinion, the lower court relied on Article 110 of the Código Penal, which provides: “The offense results in the forfeiture to the State of the instruments used to commit it and of the things or assets resulting from its commission, or constituting a benefit derived by the perpetrator from the same offense, without prejudice to any rights held in them by the injured party or third parties”; and ordered the forfeiture of the aforementioned real property.

At folio 1897 of the judgment, the court ordered the forfeiture of the property in the [...] Registry District, Nº [Valor061], “... in the name of Multiservicios Públicos Privados y Afines de Guanacaste MUPAGUA S.A., a company acquired by MCS Moriah Consultores S.A., represented by [Nombre029], and which was acquired with funds derived from the offense. As analyzed in Considerando IX, those companies were controlled by defendant [Nombre001] and were used by him to conceal the nature of the illicit funds he was receiving.” Indeed, in the section addressing the merits, after finding [Nombre001] criminally liable as the perpetrator of aggravated corruption in the form of improper bribery, to the detriment of the Duties of Public Office, the judges stated: “The forfeiture of the Suzuki Jimmy vehicle, license plate Nº [Valor033], is ordered, as it was acquired with part of the illicit funds received by defendant [Nombre001].

For the same reasons, the forfeiture is ordered of the properties recorded in the Registro Público de la Propiedad, Guanacaste Registry District, under the real-property folio system, registration Nº [Valor021], sub-registration [Valor018]; Guanacaste Registry District, real-property folio system, registration [Valor022], sub-registration [Valor018]” (folio 1543 of the judgment). However, in this specific case, because forfeiture is a civil consequence of the punishable act and because this Chamber (as detailed above) has dismissed the charge against defendant [Nombre001] for aggravated corruption in the form of improper bribery, to the detriment of the Duties of Public Office, due to extinguishment of the criminal action through expiration of the limitations period (prescripción), the proper course is to grant the applicant’s appeal and reverse the majority decision of the lower court ordering forfeiture of the property recorded in the Registro Público de la Propiedad, Guanacaste Registry District, real-property folio system, registration [Valor022], sub-registration [Valor018].

As is evident from the passages transcribed above, the ruling’s scant reasoning links the decision to forfeit that real property to the commission of aggravated corruption in the form of improper bribery, to the detriment of the Duties of Public Office, rather than to the offense of fraudulent simulation, which remains pending and directly involved another of the forfeited assets (the Suzuki Jimmy vehicle, license plate Nº [Valor033], an issue that was remanded). Accordingly, the forfeiture ordered with respect to the property recorded in the Registro Público de la Propiedad, Guanacaste Registry District, real-property folio system, registration [Valor022], sub-registration [Valor018], is reversed.

XXIII.CLERICAL ERROR CORRECTED.- Pursuant to Article 146 of the Criminal Procedure Code (Código Procesal Penal), a clerical error in the operative portion communicated to the parties on December twenty-first, two thousand twelve, is hereby corrected, specifically in section C, so that where it reads “[Nombre001],” it shall read “[Nombre004]”; accordingly, that section shall read as follows: “C) The appeal filed by attorney Yamura Valenciano on behalf of the accused [Nombre004] is granted. The prosecution of the defendant [Nombre004] for the offense of improper bribery (cohecho impropio), in the form of aggravated corruption (corrupción agravada), is declared time-barred, and he is acquitted of all punishment and liability for this offense.”

POR TANTO:

Pursuant to Articles 7, 24, 33, 34, 39, and 41 of the Political Constitution (Constitución Política); 1, 2, 11, 30, and 45 of the Criminal Code of 1973 (Código Penal de 1973); the rules currently in force regarding civil liability under the Criminal Code of 1941 (Código penal de 1941); and 1, 2, 9, 30 subsection e), 142, 175, 178, 180 to 184, 458, 459, and 465 of the Criminal Procedure Code:

• A)The appeal filed by the accused [Nombre012] is granted; the criminal action (acción penal) is declared extinguished because the statute of limitations has run; documentary evidence No. 588 and all evidence directly dependent thereon are declared null and void; the criminal conviction entered against [Nombre012] is vacated, and he is instead acquitted outright of all punishment and liability. The challenged judgment remains undisturbed insofar as it acquitted him of four offenses of Illicit Enrichment (Enriquecimiento ilícito). In view of the manner in which the matter has been resolved, it is unnecessary to rule on the remaining claims raised by appellants [Nombre012] and [Nombre088] regarding the criminal action in their appeals, because their corresponding requests for relief have been addressed. The appeal filed by attorney Cristian Arguedas is granted and, by application of the extended effect (efecto extensivo), his appeal benefits all civil co-defendants (codemandados civiles).

The judgment is vacated as to its civil aspects insofar as it omitted a ruling on the merits of the rights at issue in connection with the civil actions filed by Instituto Costarricense de Electricidad and Procuraduría General de la República against the civil defendants, as well as insofar as it ruled on costs; the case is remanded to the court of competent jurisdiction for new proceedings on those matters, on the basis that the facts alleged by the civil and criminal plaintiffs against the accused and the civil co-defendants were not proven at trial.

• B)The appeal filed by attorney Yamura Valenciano on behalf of the accused [Nombre001] is granted.

B-1) The prosecution of the defendant [Nombre001] for the offense of improper bribery, in the form of aggravated corruption, is declared time-barred, and he is acquitted of all punishment and liability for this offense.

B-2) The judgment is partially vacated solely insofar as it sentences [Nombre001] to ten years’ imprisonment for the offense of Fraud by Sham Transaction (Fraude de Simulación) and determines the amount defrauded pursuant to the relationship between Articles 218 and 216 of the Criminal Code, for purposes of establishing the sentencing range within which the quantum of the sentence is to be fixed. The case is remanded for consideration of these two matters: the amount defrauded shall be determined in accordance with procedural rules; based on that amount, the minimum and maximum limits of the sentence to be imposed shall be established; and reasons for the sentence shall be stated in accordance with constitutional requirements and Article 71 of the Criminal Code.

B-3) The judgment concerning Fraud by Sham Transaction remains undisturbed in all other respects, particularly the acquittal entered in favor of [Nombre001] for one offense of Fraud by Sham Transaction in connection with the transfer of the property registered under Registration No. [Valor017], Sub-registration [Valor018], by means of deed No. [Valor019], executed before Notary Public [Nombre025], to the detriment of Instituto Costarricense de Electricidad and the Collective and Diffuse Interests (Intereses Colectivos y Difusos).

• C)The appeal filed by attorney Yamura Valenciano on behalf of the accused [Nombre004] is granted. The prosecution of the defendant [Nombre004] for the offense of improper bribery, in the form of aggravated corruption, is declared time-barred, and he is acquitted of all punishment and liability for this offense.
• D)The appeals filed by attorneys Nazira Merayo and Wilson Flores on behalf of the accused [Nombre007] are granted.

D-1) The criminal action is declared extinguished because the statute of limitations has run; by virtue of the nullity of documentary evidence No. 588, the criminal conviction entered against [Nombre007] is also vacated, and he is instead acquitted outright of all punishment and liability. The challenged judgment remains undisturbed insofar as it acquitted him of two offenses of Illicit Enrichment.

D-2) With respect to the forfeiture (comiso) of the Suzuki Grand Vitara XL vehicle, license plate No. [Valor032], as a consequence of the criminal offense, the ground for appeal is granted, the forfeiture is vacated, and the vehicle shall be returned to the person from whom it was seized.

D-3) With respect to the personal costs (costas personales) in the amount of 10 million colones that the defendant [Nombre007] was ordered to pay for the legal representation provided by public defenders, that award is declared null and void, and the matter is remanded for a proper determination in this regard.

D-4) In view of the manner in which the appeals have been resolved, it is unnecessary to rule on the remaining claims raised by appellants Merayo and Flores regarding the criminal action in their appeals, because their corresponding requests for relief have been addressed.

• E)The appeal filed by attorney Mario Navarro on behalf of co-accused [Nombre009] is granted.

E-1) By virtue of the nullity of documentary evidence No. 588, the criminal conviction entered against [Nombre009] is also vacated, and he is instead acquitted outright of all punishment and liability.

E-2) With respect to the forfeiture of the properties in Partido de Heredia registered under the Real Property Folio system (Folio Real), Registration No. [Valor025], Sub-registration [Valor018], in the name of Punto de Negocios LQC Sociedad Anónima, a company belonging to the accused [Nombre009]; as well as [Nombre009]’s shares in La Selva de La Marina S.A., which owns, among others, the real properties recorded in the Registro Público under the Real Property Folio system as Registration No. [Valor030], Sub-registration [Valor018], and Registration No. [Valor031], Sub-registration [Valor018]. The court of competent jurisdiction shall be ordered to return the forfeited properties and shares.

E-3) In view of the manner in which the appeals have been resolved, it is unnecessary to rule on the remaining claims raised by attorney Navarro regarding the criminal action in his appeals, because his corresponding requests for relief have been addressed.

E-4) By virtue of the extended effect of the decision granting attorney Christian Arguedas’s appeal, and because his challenges are not personal in nature, the ruling benefits all civil co-defendants. The judgment is vacated as to its civil aspects insofar as it omitted a ruling on the merits of the rights at issue in connection with the civil actions filed by Instituto Costarricense de Electricidad and Procuraduría General de la República against the civil defendants, as well as insofar as it ruled on costs; the case is remanded to the court of competent jurisdiction for new proceedings on those matters.

• F)The appeals filed by attorneys Federico Morales and Erick Ramos on behalf of the accused [Nombre015] are granted; the criminal action is declared extinguished because the statute of limitations has run; by virtue of the nullity of documentary evidence No. 588, the criminal conviction entered against [Nombre015] is also vacated, and he is instead acquitted outright of all punishment and liability.

F-1) In view of the manner in which the appeals have been resolved, it is unnecessary to rule on the remaining claims raised by appellants Ramos and Morales regarding the criminal action in their appeals, because their corresponding requests for relief have been addressed.

• G)The appeal filed by [Nombre021] in the exercise of his personal defense (defensa material) is granted; the prosecution against him is declared time-barred, and he is instead acquitted of all punishment and liability for the offense charged against him.

G-1) By virtue of the nullity of documentary evidence No. 588, the criminal conviction entered against [Nombre021] is also vacated, and he is instead acquitted outright of all punishment and liability.

G-3) With respect to the forfeiture ordered of CERTIFICATE NUMBER [Valor026] RENEWED IN [Valor027]. The judgment shall be vacated in this regard, and the document shall immediately be returned to its lawful owner.

G-4) In view of the manner in which the appeals have been resolved, it is unnecessary to rule on the remaining claims raised by the accused regarding the criminal action in his appeals, because his corresponding requests for relief have been addressed.

G-5) By virtue of the extended effect of the decision granting attorney Christian Arguedas’s appeal, and because his challenges are not personal in nature, the ruling benefits all civil co-defendants. The judgment is vacated as to its civil aspects insofar as it omitted a ruling on the merits of the rights at issue in connection with the civil actions filed by Instituto Costarricense de Electricidad and Procuraduría General de la República against the civil defendants, as well as insofar as it ruled on costs; the case is remanded to the court of competent jurisdiction for new proceedings on those matters.

• H)Because the criminal action against the accused [Nombre018] (q.e.p.d.) has been extinguished, pursuant to Articles 30 subsection a) and 311 subsections d) and e) of the Criminal Procedure Code, the case against [Nombre018] (q.e.p.d.) is dismissed (se sobresee) as to one offense of PENALTY FOR THE CORRUPTOR (PENALIDAD DEL CORRUPTOR) for AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY with respect to [Nombre027], as well as one offense of PENALTY FOR THE CORRUPTOR for PROPER BRIBERY (COHECHO PROPIO) in connection with [Nombre026], both to the detriment of PROBITY IN PUBLIC OFFICE (PROBIDAD EN LA FUNCIÓN PÚBLICA). In light of this ruling and in the interest of procedural economy (economía procesal), no ruling is issued on the grounds raised in the appeal concerning the criminal liability of the accused [Nombre018].

H-1) By extended effect, the ruling on the civil action for damages (acción civil resarcitoria) is vacated, and the matter is remanded for new proceedings in accordance with law. In the interest of procedural economy, no express ruling is issued on the objections raised, because they concern substantive matters that must be examined in the remand already ordered with respect to the relevant claims in the civil action for damages.

H-2) The Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José is ordered to cancel the first-priority mortgage (hipoteca en primer grado) on the property registered in the Registro Público de la Propiedad, Provincia de San José, under number [Valor052], in favor of the Corte Suprema de Justicia, granted as real security (caución real) on behalf of [Nombre018] (deceased), in the amount of two hundred thousand dollars.

• I)The appeal against the judgment (recurso de apelación de sentencia) filed by the Ministerio Público is denied.
• J)The appeal filed by attorney Mario Gonzalo Soto Baltodano, president of JURISO, S.A., vested with powers as a general attorney-in-fact without limitation as to amount (apoderado generalísimo sin límite de suma), is granted. The forfeiture (comiso) of the Suzuki Jimmy vehicle, license plate [Valor033], is vacated, and the matter is remanded (reenvío) on that issue for proceedings in accordance with law, with the appellant herein to be summoned so that he may have the opportunity to exercise the rights afforded to him by law. In light of this ruling, no decision is rendered on the other arguments raised by the appellant, since most of them concern substantive issues that must be resolved on remand.
• K)By operation of the extension of favorable effects (efecto extensivo), the appeal filed by attorneys Gilberth Calderón Alvarado, Procurador de la Ética Pública, and Miguel Horacio Cortés Chaves, Procurador Adjunto de la Ética Pública, in their capacity as representatives of the State, is granted; the matter is remanded for new proceedings in accordance with law with respect to the civil action for damages (acción civil resarcitoria) brought on behalf of the Procuraduría General de la República. In the interest of procedural economy (economía procesal), no express ruling is issued on the objections raised, since they concern substantive issues that must be examined specifically on the remand already ordered regarding the relevant claims in the civil action for damages.
• L)By operation of the extension of favorable effects, the appeal filed by attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, in their capacity as special litigation attorneys-in-fact (apoderados especiales judiciales) for the civil defendant (demandada civil), Alcatel-Lucent France (formerly Alcatel Cit), is granted, and the matter is remanded for new proceedings in accordance with law concerning the civil action for damages and its costs (costas). In the interest of procedural economy, no express ruling is issued on the objections raised, since they concern substantive issues that must be examined specifically on the remand already ordered regarding the relevant claims in the civil action for damages.
• M)By operation of the extension of favorable effects, the appeal filed by attorney Mario Navarro Arias, special litigation attorney-in-fact for the civil defendants (demandados civiles), Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A.; La Selva de la Marina S.A; Servicios Notariales QC S.A.; and [Nombre009], in his personal capacity, is granted, and the matter is remanded for new proceedings in accordance with law concerning the civil action for damages and its costs. In the interest of procedural economy, no express ruling is issued on the objections raised, since they concern substantive issues that must be examined specifically on the remand already ordered regarding the relevant claims in the civil action for damages.
• N)The appeal filed by attorney Juan Luis Vargas Vargas, special litigation attorney-in-fact for [Nombre002], president of Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, vested with general powers without limitation as to amount (facultades generalísimas sin límite de suma), is granted. The forfeiture ordered with respect to the property registered in the Registro Público de la Propiedad Partido Guanacaste, Real Property Folio system (sistema de Folio Real), registration number [Valor022], subregistration number [Valor018], is revoked.
• Ñ)The immediate release of the accused persons (encartados) [Nombre015], [Nombre009], and [Nombre001] is ordered, unless they are being held for another matter. With respect to [Nombre001], by virtue of the ruling in this judgment, the conviction for one offense of Fraud by Simulation (Fraude de Simulación) remains undisturbed, and a remand for new proceedings has been ordered concerning the value of the property involved in that offense and the determination of the sentence. His release is ordered so that he may remain at liberty pending the remand proceedings in which those matters will be addressed, since his family, residential, and employment ties (arraigo familiar, domiciliar y laboral) support the conclusion that he will remain available for the proceedings while awaiting resolution of the vacated issues.

Alfredo Chirino Sánchez Jorge Luis Arce Víquez Sandra Eugenia Zúñiga Morales Judges of the Criminal Judgment Appeals Court (Jueces y Jueza de Apelación de Sentencia Penal) Defendant: [Nombre009] et al.

Injured party: Instituto Costarricense de Electricidad et al.

Offense: Illicit enrichment (Enriquecimiento ilícito) et al.

KJIMENEZO

PODER JUDICIAL TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL Resolución: 2012-2550 TRIBUNAL DE APELACIÓN DE SENTENCIA PENAL, Segundo Circuito Judicial de San José. Goicoechea, a las trece horas del veintiuno de diciembre de dos mil doce.

RECURSOS DE CASACIÓN Y DE APELACIÓN interpuestos en la presente causa seguida contra [Nombre001], mayor, divorciado, costarricense, cédula de identidad [Valor001], de oficio productor agrícola, nacido el [Valor002], hijo de [Nombre002] y de [Nombre003]; [Nombre004], mayor, soltero, costarricense, cédula de identidad [Valor003], labora en estudios de genealogía e historia, nacido el [Valor004], hijo de [Nombre005] y de [Nombre006], vecino de [...]; [Nombre007], mayor, casado, costarricense, cédula de identidad [Valor005], de oficio electricista, nacido el [Valor006], hijo de [Nombre008], vecino de [...]; [Nombre009], mayor, casado, costarricense, cédula de identidad [Valor007], de oficio abogado y notario, nacido el [Valor008], hijo de [Nombre010] y de [Nombre011], vecino de [...]; [Nombre012], mayor, casado, costarricense, cédula de identidad [Valor009], de oficios abogado, economista, profesor y escritor, nacido el [Valor010], hijo de [Nombre013] y de [Nombre014], vecino de [...]; [Nombre015], mayor, casado, costarricense, cédula de identidad número [Valor011], de oficio ingeniero eléctrico, nacido el [Valor012], hijo de [Nombre016] y de [Nombre017], vecino de [...]; [Nombre018], quien fue mayor, casado, costarricense, cédula de identidad [Valor013], de oficio empresario, nacido el [Valor014], hijo de [Nombre019] y de [Nombre020]; [Nombre021], mayor, casado, cédula de identidad [Valor015], de oficio médico pediatra neonatólogo, nacido el [Valor016], hijo de [Nombre022] y de [Nombre023], vecino de [...]; por los delitos de PENALIDAD DEL CORRUPTOR POR CORRUPCIÓN AGRAVADA EN LA MODALIDAD DE COHECHO IMPROPIO, CORRUPCIÓN AGRAVADA EN SU MODALIDAD DE COHECHO IMPROPIO, FRAUDE DE SIMULACIÓN, ENRIQUECIMIENTO ILÍCITO Y RECEPTACIÓN, en perjuicio de los DEBERES DE LA FUNCIÓN PÚBLICA, EL INSTITUTO COSTARRICENSE DE ELECTRICIDAD Y DE LOS INTERESES COLECTIVOS Y DIFUSOS.

Intervienen en la decisión del recurso los jueces Alfredo Chirino Sánchez y Jorge Luis Arce Víquez, y la jueza Sandra Zúñiga Morales. Se apersonaron en esta sede: el doctor [Nombre012], junto a sus abogados defensores los licenciados Rafael Gairaud Salazar y Cristian Arguedas Arguedas; el licenciado Hugo Santamaría Lamicq, en calidad de defensor del señor [Nombre018]; el licenciado Mario Gonzalo Soto Baltodano, en calidad de Presidente con facultades de Apoderado Generalísimo sin Límite de suma de la sociedad denominada Juriso S.A.; los licenciados Wilson Flores Fallas y Nazira Merayo Arias, en calidad de defensores del señor [Nombre007]; el licenciado Mario Navarro Arias, en calidad de defensor del señor [Nombre009] y Apoderado Especial Judicial de las sociedades Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A., La Selva de la Marina S.A. y Servicios Notariales QC S.A.; el licenciado José Miguel Villalobos Umaña, en calidad de defensor del señor [Nombre021]; los señores [Nombre001], [Nombre009], [Nombre015] y [Nombre021], en escrito autenticado por el licenciado José Miguel Villalobos Umaña; los licenciados Alejandro Batalla Bonilla y José Luis Campos Vargas, en calidad de Apoderados Especiales Judiciales de la sociedad Alcatel-Lucent France (antes Alcatel Cit); los licenciados Gilberth Calderón Alvarado y Miguel Horacio Cortés Chaves, en calidad de representantes de la Procuraduría General de la República; el licenciado Juan Luis Vargas Vargas, en calidad de Apoderado Especial Judicial del señor [Nombre001], quien es el Presidente con facultades de Apoderado Generalísimo sin Límite de suma de la sociedad denominada Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; la licenciada Yamura Valenciano Jiménez, en calidad de defensora de los señores [Nombre001] y [Nombre004]; las licenciadas Criss González Ugalde y Maribel Bustillo Piedra, en calidad de representantes del Ministerio Público; los licenciados Federico Morales Herrera y Erick Ramos Fallas, en calidad de defensores del señor [Nombre015]; y el licenciado Germán Calderón Lobo, en calidad de representante del Instituto Costarricense de Electricidad.

RESULTANDO:

I.Que mediante sentencia número 167-2011, de las quince horas del veintisiete de abril de dos mil once, el Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José, resolvió: "POR TANTO: De conformidad con lo dispuesto por los artículos 39 y 41 de la Constitución Política; 1, 30, 31, 45, 46, 50, 51, 57, 59 a 63, 71, 74, 76, 110, 216, 218, 323, 325, 340, 341, 342, 345, 346 y 358 del Código Penal; reglas vigentes sobre responsabilidad civil del Código Penal de 1941; 152 de la Ley Orgánica del Poder Judicial; 1, 9, 42, 238, 239, 240, 258, 265, 360, 361, 363, 364, 365, 366, 367, 368, 378 y 483 del Código Procesal Penal; y 221 y 277 del Código Procesal Civil; se resuelve:

• A)Recalificaciones y cuestiones incidentales:

A.1) Recalif i caciones: [sic] por unanimidad se recalifican los hechos acusados a [Nombre021] del delito de Corrupción agravada derivada del Cohecho impropio al delito de Enriquecimiento ilícito; así como los hechos endilgados a [Nombre024], considerados por la representación fiscal como constitutivos del delito de Enriquecimiento ilícito, se recalifican al delito de Receptación previsto por el artículo 323 del Código Penal. Por mayoría, con el voto disidente del cojuez Camacho Morales, los tres delitos de Enriquecimiento ilícito en concurso material atribuidos a [Nombre007] se recalifican a un delito de Enriquecimiento ilícito.

A.2) Excepciones de prescripción: por unanimidad se acoge la excepción de prescripción de la acción penal interpuesta a favor del encartado [Nombre024] en, relación con los delitos de Receptación y de Favorecimiento Real previstos por los artículos 323 y 325 del Código Penal y se rechaza la defensa de prescripción de la acción penal interpuesta a favor de [Nombre007] por un delito de Enriquecimiento ilícito, así recalificado.

A.3) Por mayoría, con el voto salvado del cojuez Camacho Morales, se rechazan las excepciones de prescripción de la acción penal a favor de [Nombre012] por cuatro delitos de Enriquecimiento ilícito y a favor de [Nombre021] por un delito de Enriquecimiento ilícito, así recalificado.

A.4) Por unanimidad se rechaza la excepción de cosa juzgada formulada a favor del acusado [Nombre021].

A.5) Por mayoría, con el voto salvado del cojuez Camacho Morales, se rechaza la protesta por actividad procesal defectuosa interpuesta en defensa del imputado [Nombre021] y solicitada como de aplicación extensiva para los restantes encartados en cuanto a la prueba bancaria cuya ilicitud se alega y fue obtenida en un proceso penal diverso de éste.

A.6) Por mayoría, con el voto disidente del cojuez Camacho Morales, se rechazan las restantes protestas, incidencias y excepciones relacionadas con los delitos acusados e interpuestas por las partes.

• B)Absolutorias y responsabilidad penal de los encartados:

B.1) Por unanimidad, por prescripción de la acción penal se absuelve de toda pena y responsabilidad a [Nombre024] del delito de RECEPTACIÓN, así recalificado, y de FAVORECIMIENTO REAL ambos en perjuicio de la ADMISTRACIÓN DE JUSTICIA; por atipicidad a [Nombre015] de un delito de PENALIDAD DEL CORRUPTOR en relación con el delito de CORRUPCIÓN AGRAVADA por COHECHO IMPROPIO atribuido a [Nombre021] y recalificado al delito de ENRIQUECIMIENTO ILÍCITO en perjuicio de la PROBIDAD EN LA FUNCIÓN PÚBLICA. Asimismo, por unanimidad, en aplicación del principio de In dubio pro reo se absuelve a [Nombre012] de toda pena y responsabilidad de cuatro delitos de ENRIQUECIMIENTO ILÍCITO en daño de la PROBIDAD EN LA FUNCIÓN PÚBLICA y a [Nombre001] de un delito de FRAUDE DE SIMULACIÓN en relación con el traspaso de la finca registrada con la Matrícula N° [Valor017], Submatrícula [Valor018], mediante escritura N° [Valor019] suscrita ante la notaria pública [Nombre025] en perjuicio del INSTITUTO COSTARRICENSE DE ELECTRICIDAD y de los INTERESES COLECTIVOS Y DIFUSOS.

B.2) Por mayoría, con el voto disidente del cojuez Camacho Morales, se declara a [Nombre015] coautor responsable de cuatro delitos de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO, en concurso material, en relación con [Nombre004], [Nombre001], [Nombre026] y [Nombre027], en perjuicio de la PROBIDAD EN LA FUNCIÓN PÚBLICA, imponiéndosele por cada uno de los delitos la pena de CINCO AÑOS DE PRISIÓN para un total de VEINTE AÑOS DE PRISIÓN que, en aplicación de las reglas del concurso material, se reducen a QUINCE AÑOS DE PRISIÓN, sanción que deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios una vez deducida la prisión preventiva cumplida. Se rechaza la inhabilitación absoluta solicitada por la Fiscalía ante la falta de concurrencia de los presupuestos legales para su aplicación.

B.3) Por mayoría, con el voto salvado del cojuez Camacho Morales, se declara a [Nombre009] coautor responsable de tres delitos de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO en relación con [Nombre004], [Nombre001] y [Nombre026] en perjuicio de la PROBIDAD EN LA FUNCIÓN PÚBLICA, imponiéndosele por cada delito la pena de CINCO AÑOS DE PRISIÓN para un total de QUINCE AÑOS DE PRISIÓN, sanción que deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios una vez abonada la prisión preventiva cumplida. Se rechaza la inhabilitación absoluta solicitada por la Fiscalía ante la falta de concurrencia de los presupuestos legales para su aplicación.

B.4) Por mayoría, con el voto disidente del cojuez Camacho Morales, se declara a [Nombre018] coautor responsable de un delito de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO respecto de [Nombre027], y autor responsable de un delito de PENALIDAD DEL CORRUPTOR por COHECHO PROPIO en relación con [Nombre026], ambos en daño de la PROBIDAD EN LA FUNCIÓN PÚBLICA, imponiéndosele la pena de CINCO AÑOS DE PRISION por el primero y CINCO AÑOS DE PRISIÓN por el segundo para un total de DIEZ AÑOS DE PRISIÓN, sanción que deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios una vez deducida la prisión preventiva que hubiere cumplido. Se rechaza la inhabilitación absoluta pedida por la Fiscalía por falta de concurrencia de los presupuestos legales para su aplicación.

B.5) Por mayoría, con el voto salvado del cojuez Camacho Morales, se declara a [Nombre004] autor responsable del delito de CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO en perjuicio de la PROBIDAD EN LA FUNCIÓN PÚBLICA, imponiéndosele la pena de CINCO AÑOS DE PRISION, la cual deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios una vez descontada la prisión preventiva cumplida. Asimismo se le INHABILITA durante el lapso de DOCE AÑOS para obtener y ejercer empleos, cargos o comisiones públicas.

B.6) Por mayoría, con el voto disidente del cojuez Camacho Morales, se declara a [Nombre001] autor responsable de un delito de CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO, en perjuicio de la PROBIDAD EN LA FUNCIÓN PÚBLICA, y un delito de FRAUDE DE SIMULACIÓN respecto de los vehículos traspasados mediante escritura N° [Valor020] ante el notario público [Nombre028] en perjuicio del INSTITUTO COSTARRICENSE DE ELECTRICIDAD y de los INTERESES COLECTIVOS Y DIFUSOS, imponiéndosele la pena de CINCO AÑOS DE PRISIÓN y DIEZ AÑOS DE PRISIÓN respectivamente, para un total de QUINCE AÑOS DE PRISIÓN, sanción que deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios una vez deducida la prisión preventiva que hubiere cumplido. También se le INHABILITA durante el lapso de DOCE AÑOS para obtener y ejercer empleos, cargos o comisiones públicas.

B.7) Por mayoría, con el voto salvado del cojuez Camacho Morales, se declara a [Nombre007] autor responsable de un delito de ENRIQUECIMIENTO ILÍCITO, así recalificado, cometido en daño de la PROBIDAD EN LA FUNCIÓN PÚBLICA, imponiéndosele la pena de DOS AÑOS DE PRISIÓN que deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios previo abono de la prisión preventiva cumplida. Igualmente, se le inhabilita durante el lapso de DOCE AÑOS para obtener y ejercer empleos, cargos o comisiones públicas. Por concurrir los presupuestos legales se le otorga el BENEFICIO DE EJECUCIÓN CONDICIONAL de la pena privativa de libertad por un período de prueba de cinco años, dentro del cual no deberá cometer ningún delito doloso por el que se le sancione con una pena superior o igual a los seis meses de prisión, en cuyo caso se le revocará este beneficio.

B.8) Por mayoría, con el voto disidente del cojuez Camacho Morales, se declara a [Nombre012] instigador responsable del delito de CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO en perjuicio de la PROBIDAD EN LA FUNCIÓN PÚBLICA, imponiéndosele la pena de CINCO AÑOS DE PRISION que deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios una vez deducida la prisión preventiva cumplida. Asimismo se le INHABILITA durante el lapso de DOCE AÑOS para obtener y ejercer empleos, cargos o comisiones públicas.

B.9) Por mayoría, con el voto salvado del cojuez Camacho Morales, se declara a [Nombre021] autor responsable de un delito de ENRIQUECIMIENTO ILÍCITO, así recalificado, cometido en perjuicio de la PROBIDAD EN LA FUNCIÓN PÚBLICA, imponiéndosele la pena de DOS AÑOS DE PRISION que deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios una vez abonada la prisión preventiva cumplida, sin considerarse la concurrencia de los requisitos legalmente establecidos para hacerse merecedor del beneficio de ejecución condicional de dicha sanción. Asimismo se le INHABILITA durante el lapso de DOCE AÑOS para obtener y ejercer empleos, cargos o comisiones públicas.

• C)Aspectos civiles:

C.1) Por unanimidad, respecto de la ACCIÓN CIVIL RESARCITORIA formulada por el INSTITUTO COSTARRICENSE DE ELECTRICIDAD:

C.1.1) Se tiene por desistida la demanda civil incoada por el referido instituto contra [Nombre015], quien hizo expresa renuncia para que se condenara en costas a la parte actora civil.

C.1.2) Se omite pronunciamiento en cuanto al derecho de fondo discutido en relación con las acciones civiles interpuestas por el INSTITUTO COSTARRICENSE DE ELECTRICIDAD contra los demandados civiles [Nombre009], [Nombre004], [Nombre012], [Nombre024], [Nombre021], [Nombre001], [Nombre007], SERVICIOS NOTARIALES QC S.A. y ALCATEL CIT.

C.1.3) Se resuelve sin especial condenatoria en ambas costas la demanda civil promovida por el INSTITUTO COSTARRICENSE DE ELECTRICIDAD contra los citados accionados.

C.1.4) Una vez firme el fallo, se ordena el levantamiento de los embargos decretados a favor del INSTITUTO COSTARRICENSE DE ELECTRICIDAD respecto de las citadas demandas civiles.

C.1.5) Se rechaza la solicitud de condena en daños y perjuicios causados por el INSTITUTO COSTARRICENSE DE ELECTRICIDAD mediante los embargos practicados para garantizar las resultas de este proceso.

C.2) Por unanimidad, respecto de la ACCIÓN CIVIL RESARCITORIA incoada por la PROCURADURÍA GENERAL DE LA REPÚBLICA:

C.2.1) Se omite pronunciamiento en cuanto al derecho de fondo discutido en relación con las acciones civiles planteadas por la PROCURADURÍA GENERAL DE LA REPÚBLICA contra los demandados civiles [Nombre015], [Nombre009], [Nombre004], [Nombre012], [Nombre024], [Nombre021], [Nombre001], [Nombre018], [Nombre007], SERVICIOS NOTARIALES QC S.A., PUNTO DE NEGOCIOS L.Q.C. S.A., SELVA DE LA MARINA S.A., QUÁNTICA S.A., GAMBUSINOS S.A. y FINCA SALITRAL S.A..

C.2.2) Se resuelve sin especial condenatoria en ambas costas la demanda civil promovida por la PROCURADURÍA GENERAL DE LA REPÚBLICA respecto de los citados accionados civiles.

C.2.3) Con la firmeza del fallo se ordena el levantamiento de los embargos decretados a favor de la PROCURADURÍA GENERAL DE LA REPÚBLICA en relación con las demandas civiles formuladas.

C.2.4) Se rechaza la solicitud de condena en daños y perjuicios causados por la PROCURADURÍA GENERAL DE LA REPÚBLICA mediante los embargos practicados para garantizar las resultas de este proceso.

• D)Comiso y declaratoria, de falsedad instrumental: Por mayoría, con el voto disidente del cojuez Camacho Morales, se dispone a favor del Estado el comiso de los siguientes bienes:

D.1) Las fincas inscritas en el Registro Público de la Propiedad: Partido de Guanacaste bajo el sistema de Folio Real Matrícula N° [Valor021], Submatrícula [Valor018]; Partido de [...] bajo el sistema de Folio Real Matrícula N° [Valor022], Submatrícula [Valor018]; Partido de [...], sistema de Folio Real Matricula N° [Valor023], Submatricula [Valor024]; y Partido de [...] inscrita bajo el sistema de Folio Real, Matrícula N° [Valor025], Submatrícula [Valor018].

D.2) Del Certificado de inversión N° [Valor026] que fuera renovado en el certificado N° [Valor027] por el monto de cinco millones cuatrocientos sesenta y tres mil quinientos cincuenta y cinco colones sesenta y cinco céntimos, a nombre de la Procuraduría General de la República.

D.3) De la sumas de cincuenta y ocho mil dólares y de ochenta y un mil cuatrocientos dólares, soporte económico de los cheques N° [Valor028] del Banco Interfin y N° [Valor029] del Bank of New York Delaware, ambos girados a [Nombre026] y depositados a la orden de este tribunal.

D.4) De las acciones de [Nombre009] en la sociedad La Selva de La Marina S.A. propietaria, entre otros, de los inmuebles inscritos en el Registro Público bajo el sistema de Folio Real Matrícula N° [Valor030], Submatrícula [Valor018] y Matrícula N° [Valor031], Submatricula [Valor018].

D.5) De los vehículos marca Suzuki Grand Vitara XL, placa N° [Valor032]; y marca Suzuki Jimny, placa N° [Valor033].

D.6) Se declara la falsedad instrumental de la escritura pública N° [Valor020] otorgada ante el notario público [Nombre028] por [Nombre001] y [Nombre029], por lo que deberá suprimirse el traspaso de bienes dispuesto en dicho instrumento por parte de los sentenciados [Nombre068], procediéndose con las rectificaciones registrales que correspondan.

• E)Medidas cautelares:

E.1) Prisión preventiva: por mayoría, con el voto salvado del cojuez Camacho Morales, se acoge la solicitud de la Fiscalía y se decreta la medida cautelar de prisión preventiva respecto de [Nombre009] y [Nombre001] durante el lapso de dieciocho meses que se computará desde el veintisiete de abril de dos mil once hasta el veintisiete de octubre de dos mil doce y en cuanto a [Nombre015] durante el lapso de doce meses que se computará desde el veintisiete de abril de dos mil once hasta el veintisiete de abril de dos mil doce. Lo anterior en razón de la modificación de la situación ostentada por los encartados [Nombre015], [Nombre009] y [Nombre001] frente a este proceso, así como la naturaleza y quantum de la pena impuesta a cada uno de ellos, la cual constituye un motivo suficiente para que, encontrándose en libertad, cada uno de ellos busque alternativas viables para evadir su responsabilidad penal y hacer nugatorios los fines de la Administración de Justicia cuya tutela y raigambre es de orden constitucional.

E.2) Medidas supletorias: por mayoría, con el voto disidente del cojuez Camacho Morales, a solicitud de la representación del Ministerio Público se impone a los sentenciados [Nombre004], [Nombre012], [Nombre018] y [Nombre021], las medidas cautelares sustitutivas de la prisión preventiva consistentes en: el impedimento de salida del país a partir del veintisiete de abril de dos mil once y hasta la firmeza del fallo, para lo cual deberá cada uno de los sentenciados depositar su pasaporte en la sede de este Tribunal dentro de las veinticuatro horas siguientes al dictado de esta resolución; y la obligación de comparecer ante este Despacho el día veintisiete de cada mes prorrogable al día hábil siguiente cuando éste resultare inhábil, en fe de lo cual deberá llevarse un registro donde estampen sus firmas. Las medidas descritas regirán a partir de la lectura de la parte dispositiva de la sentencia y hasta la firmeza del fallo, con la prevención de que ante el incumplimiento de las condiciones fijadas o de las señaladas medidas cautelares sustitutivas, se podría aplicar la prisión preventiva ahora relegada.

• F)Otros aspectos de relevancia:

F.l) Gastos del proceso: por unanimidad los gastos del proceso penal son a cargo del Estado.

F.2) Costas personales: por unanimidad las costas del proceso en cuanto al ejercicio de la acción penal corren por cuenta de los encartados. Dada la comprobada solvencia económica de los sentenciados [Nombre004], [Nombre001], [Nombre018] y [Nombre007], quienes optaron por la asesoría legal de abogados de la Defensa Pública del Poder Judicial, de conformidad con los artículos 152 de la Ley Orgánica del Poder Judicial y 265 del Código Procesal Penal, deberá cada uno cancelar los honorarios de los profesionales que los han asistido durante este proceso. Rubro fijado en la suma de DIEZ MILLONES DE COLONES que cubre su desempeño profesional desde su apersonamiento y hasta el dictado de este fallo, no así los eventuales recursos y demás gestiones que con posterioridad a su emisión sean requeridos. Dicha suma deberá cancelarla cada uno de los imputados a favor del Poder Judicial dentro de los quince días siguientes computados a partir de la firmeza del fallo, con el consiguiente embargo y remate de sus bienes ante el incumplimiento de esta obligación.

F.3) Comunicaciones: por mayoría, con el voto salvado del cojuez Camacho Morales, expídanse las comunicaciones atinentes al impedimento de salida de [Nombre004], [Nombre018], [Nombre012] y [Nombre021] ante la Dirección General de Migración y Extranjería. Una vez firme esta sentencia se remitirán los oficios de rigor ante el Tribunal Supremo de Elecciones en lo tocante a las inhabilitaciones absolutas de [Nombre004], [Nombre012], [Nombre021], [Nombre001] y [Nombre007] para la ocupación de cargos públicos de elección popular y al Servicio Civil para las inhabilitaciones absolutas en la designación de los restantes empleos, cargos y comisiones públicas. Comuníquese al Registro Público de la Propiedad la falsedad instrumental declarada en cuanto a la escritura otorgada ante el notario público [Nombre028]. Remítanse las comunicaciones ante el Instituto Nacional de Criminología, el Juzgado de Ejecución de la Pena y el Registro Judicial para que procedan a lo de su cargo. NOTIFÍQUESE .-" (sic.).

II.Que contra el anterior pronunciamiento interpusieron recursos de casación readecuados a recursos de apelación: el doctor [Nombre012], junto a sus abogados defensores los licenciados Rafael Gairaud Salazar y Cristian Arguedas Arguedas; el licenciado Hugo Santamaría Lamicq, en calidad de defensor del señor [Nombre018]; el licenciado Mario Gonzalo Soto Baltodano, en calidad de Presidente con facultades de Apoderado Generalísimo sin Límite de suma de la sociedad denominada Juriso S.A.; los licenciados Wilson Flores Fallas y Nazira Merayo Arias, en calidad de defensores del señor [Nombre007]; el licenciado Mario Navarro Arias, en calidad de defensor del señor [Nombre009] y Apoderado Especial Judicial de las sociedades Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A., La Selva de la Marina S.A. y Servicios Notariales QC S.A.; el licenciado José Miguel Villalobos Umaña, en calidad de defensor del señor [Nombre021]; los señores [Nombre001], [Nombre009], [Nombre015] y [Nombre021], en escrito autenticado por el licenciado José Miguel Villalobos Umaña; los licenciados Alejandro Batalla Bonilla y José Luis Campos Vargas, en calidad de Apoderados Especiales Judiciales de la sociedad Alcatel-Lucent France (antes Alcatel Cit); los licenciados Gilberth Calderón Alvarado y Miguel Horacio Cortés Chaves, en calidad de representantes de la Procuraduría General de la República; el licenciado Juan Luis Vargas Vargas, en calidad de Apoderado Especial Judicial del señor [Nombre001], quien es el Presidente con facultades de Apoderado Generalísimo sin Límite de suma de la sociedad denominada Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; la licenciada Yamura Valenciano Jiménez, en calidad de defensora de los señores [Nombre001] y [Nombre004]; las licenciadas Criss González Ugalde y Maribel Bustillo Piedra, en calidad de representantes del Ministerio Público; los licenciados Federico Morales Herrera y Erick Ramos Fallas, en calidad de defensores del señor [Nombre015].

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

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

Redacta el Juez de Apelación de Sentencia Penal Chirino Sánchez; y,

CONSIDERANDO:

I. RECURSO DEL DR

[Nombre012]. Don [Nombre012], en el ejercicio de su defensa material, ha impugnado la sentencia N° 167-2011, dictada por el Tribunal Penal de la Hacienda y la Función Pública del Segundo Circuito Judicial de San José a las 15:00 horas del día 27 de abril de 2011, que lo declaró autor responsable de un delito de «Instigación al delito de Corrupción agravada en la modalidad de Cohecho impropio», en perjuicio de la Probidad en la Función Pública, imponiéndole una pena de cinco años de prisión y otra de doce años de inhabilitación para obtener y ejercer empleos, cargos o comisiones públicas. El acusado [Nombre012] ha escritos, el primero de ellos es un recurso de "apelación" que presentó el día 2 de junio de 2011 (cfr. Tomo XXXV, folios 16762 a 16893). El segundo es un recurso de "casación" que presentó el día 1 de agosto de 2011 (cfr. Tomo XXXVII, folios 17408 a 17648). El tercero es una "adición" a su recurso de casación por la forma, gestión que presentó el día 5 de agosto de 2011, acusando la violación del principio de juez natural (cfr.

Tomo XXXVII, folios 17908 a 17903). En el Tomo XXXVIII se observan otros escritos suyos que también es necesario mencionar, en los folios 171854, 171855, 171909 a 171910 y 171945; pues en ellos se refiere a la admisibilidad de su «adición» y ofrece prueba al respecto. Finalmente, en el Tomo XXXIX está el "recurso de apelación de sentencia" (presentado el día 10 de febrero de 2012, cfr. folios 172346 a 172686), mediante el cual el Dr. [Nombre012] adecua sus anteriores reclamos de casación a un recurso de apelación de sentencia penal, de conformidad con el Transitorio III de la Ley N° 8837 de 3 de mayo de 2010 («Creación del recurso de apelación de la sentencia, otras reformas al régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal»). Planteamiento.- Este último escrito inicia con un "Sumario" de treinta y un páginas en el cual el Dr. [Nombre012] oportunamente interpuso contra la sentencia N° 167-2011.

Concretamente impugna lo que se dispuso mediante el voto de mayoría de las señoras juezas Rosaura García Aguilar e Ileana Méndez Sandí (el juez Jorge Camacho Morales salvó el voto). A lo largo de este compendio o resumen preliminar del recurso, acusa la inobservancia de los artículos 24, 30, 33 34, 35, 39, 40, 152, 153 y 153 de la Constitución Política; 1, 2, 3, 5, 7, 8, 10, 28 de la Declaración Universal de Derechos Humanos; 2, 5, 17, 18 y 26 de la Declaración Americana de Derechos y Deberes del Hombre; 2.1, 3, 7, 9.3, 10, 14.1, 14.3 incisos d) y f) del Pacto Internacional de Derechos Civiles y Políticos; 1, 2, 5.1, 5.2, 7.3, 8.1, 8.2 incisos d) y f), 9, 11 y 25 de la Convención Americana sobre Derechos Humanos («Pacto de San José»); 1, 2, 3, 4, 5, 6, 9, 10, 12, 22 inciso b), 23, 33, 55, 82, 92, 96, 142, 163, 171, 172, 175 a 179, 181, 182, 184, 186, 201, 361, 363, 458 y 465 del Código Procesal Penal; 46, 72 incisos a), e) y f), y 342 del Código Penal; de la Ley sobre registro, secuestro y examen de documentos privados e intervención de las comunicaciones (Ley N° 7425, vigente desde su publicación en La Gaceta del 8 de setiembre de 1994); y del artículo 62 inciso a) de la Ley N° 8422 de 6 de octubre de 2004 (Ley contra la Corrupción y el Enriquecimiento ilícito en la Función Pública, vigente desde su publicación en el diario La Gaceta N° 212 del 29 de octubre de 2004); la Convención contra la tortura y tratos o penas crueles o degradantes; la Convención Interamericana para prevenir y sancionar la tortura; por lo que solicita que se anule la sentencia de acuerdo con los artículos 458, 459 y 465 de ese mismo texto legal se anule la sentencia condenatoria y se declare su absolutoria.

Advierte que el debido proceso se ha quebrantado radicalmente en su perjuicio, desde el propio 15 de octubre de 2004, cuando -voluntariamente y previo aviso al Fiscal General- regresó al país, estando aún en el ejercicio de la Secretaria General de la Organización de Estados Americanos, tornando imposible un juicio justo. Considera que son muchas las inobservancias y erróneas aplicaciones de la ley en las que incurre la sentencia en cuanto a la determinación de los hechos que se tuvieron por acreditados para la mayoría del tribunal (que no precisan circunstancias de lugar y de tiempo, quienes participaron, cuáles fueron las razones de las actuaciones, cómo se dieron los pagos y a qué corresponden, con relación a los contratos entre Alcatel, en lo tocante a la falsa participación que se le atribuye ante [Nombre026] para el cobro de deudas ante Alcatel; en lo que atañe a supuestos pagos que le haya hecho [Nombre026] con recursos de Alcatel), determinación de hechos que deviene arbitraria.

En términos generales cuestiona la legitimidad de la prueba incorporada al debate y la valoración de la prueba (que no se ajusta a las reglas de la sana crítica), la fundamentación jurídica de la sentencia (que es incompleta y en muchos casos contradictoria) y la fijación de la pena impuesta. Plantea que ha sido erróneamente valorada la declaración -que no es prueba testimonial- del imputado confeso y colaborador [Nombre026] (pues no hay ningún elemento externo que respalde o corrobore su dicho) para relacionarlo con el delito y que falsamente se afirma la existencia de documentos que en nada corresponden a lo que argumenta la sentencia que, ilegítima y contradictoriamente, se ancla en prueba bancaria traída de Panamá, sin autorización judicial, violando el derecho constitucional a la intimidad, a pesar que el propio tribunal -por unanimidad- declaró ilegítima otra prueba de la misma procedencia, precisamente por esas razones, lo mismo que se acepta prueba ilícita por ser recibida fuera del plazo de la autorización judicial o de entidades distintas a las ordenadas a entregarla.

La mayoría del tribunal se negó a conocer y resolver violaciones graves en la negociación y la aprobación judicial del criterio de oportunidad a [Nombre026]. Se le sujetó a la modificación de una condición de prescripción que ya lo amparaba, con base a una ley emitida después de que se diera el hecho que lo amparó. Se le juzgó violentando su derecho al juez natural y se le impuso el extremo mayor de la pena por una supuesta Instigación que ni el propio [Nombre026] se atrevió a declarar, pues mas bien reiteró repetidamente que él aceptó la oferta corruptora antes de la conversación que falsamente dice haber sostenido con él para informarlo de ella. A pesar de las solicitudes reiteradas de sus defensores, no se investigaron los demás contratos habidos entre Alcatel y servicios Notariales Q.C. de compras previas y diferentes del ICE a Alcatel, para determinar si en ellos se dieron irregularidades o si los supuestos pagos recibidos pudieron originarse en otras causas lícitas.

Fue un error de la mayoría del tribunal tener ciegamente por confirmadas las afirmaciones de [Nombre026], pues lo cierto es que este incurrió en evidentes contradicciones y falsedades, conforme a las reglas de la sana crítica. No se analizaron de manera fundada las observaciones que los peritos de su defensa técnica ([Nombre030] y [Nombre031]) hicieron a las afirmaciones del Auditor Forense, a pesar de las graves limitaciones de sus informes, pues los peritos forenses no cotejaron ni verificaron las informaciones en casos de inconsistencias de fechas, horas de transacciones, la papelería de bancos, firmas de clientes, constitución y liquidación de certificados de inversión, pues confiaron totalmente en lo les dijeron los bancos. A lo largo del debate claramente se estableció una serie de indicios sospechosos sobre las actuaciones del Banco Cuscatlán, del Cuscatlán International Bank y del Grupo Cuscatlán, pero el conocimiento de estas circunstancias no llevó a la Fiscalía a investigar si se estaban violentando leyes de legitimación de capitales, ni tampoco los peritos forenses se molestaron en hacer averiguaciones al respecto, o al menos comunicarlo a la SUGEF.

Las señoras juezas que suscriben el voto de mayoría le creen a [Nombre026] las supuestas reuniones en [...] y en la casa de [Nombre012], sin tener otro respaldo probatorio que los movimientos migratorios registrados por los supuestos partícipes, registros que lo único que acaso permiten establecer es que [Nombre026], personeros de Alcatel y el acusado estaban en el país para esas fechas. Para dar credibilidad a [Nombre026], respecto a las reuniones en [...] y en la casa del recurrente, las señoras juezas afirman que los pagos posteriores confirman la instigación, pero esa conclusión no se deriva con certeza, porque las sumas posteriormente recibidas -si es que las hubo- pudieron provenir de otras causas diferentes a un delito: «Es la culpabilidad lo que se debe probar, no la inocencia» señala el quejoso, y agrega que la existencia de un plan delictivo de Alcatel o que [Nombre026] hubiera votado por la adjudicación de las cuatrocientas mil líneas, tampoco son circunstancias que demuestren con certeza que [Nombre012] haya actuado como instigador.

Recalca que el propio [Nombre026], al menos en tres ocasiones, declaró en el juicio que él ya había aceptado en principio la oferta de Alcatel (solicita ver las declaraciones que dio en juicio los días 8 de setiembre a las 15:40:40 horas y 9 de de setiembre, a las 08:11 horas y a las 13:45 horas, todas del año 2010), de manera que no necesitaba convencimiento para realizar su plan; los testigo y el propio [Nombre026] fueron contestes en que el impugnante nunca le pidió a ningún director o funcionario del ICE nada con respecto a la licitación de las cuatrocientas mil líneas celulares GSM, ni respecto a ninguna otra compra o contrato. [Nombre026] ni siquiera afirma haberle informado a [Nombre012] en la falsa reunión de los pretendidos compromisos suyos con Alcatel y menos haberle dicho que necesitara ayuda suya para cumplirlos. Las señoras juezas le creen ciegamente al imputado [Nombre026], a pesar de las contradicciones en que incurrió, a pesar de que ambas lo escucharon declarar acerca de sus ingresos injustificados cuando fue Ministro de Vivienda y los otros ingresos relacionados con otros presuntos delitos confesados por [Nombre026] y que fueron corroborados por el O.I.J.

No se investigaron todas las posibles cuentas bancarias, en colones o dólares, de [Nombre026] y de su esposa, porque no lo solicitó el Ministerio Público, y por ese mismo motivo es que tampoco se investigaron los otros posibles delitos de [Nombre026], pero se le presumió inocente, mientras que para el impugnante [Nombre012] se invirtió la carga de la prueba, esto así porque -según las juzgadoras- no probó una naturaleza distinta como razón de los supuestos pagos imputados por [Nombre026]. En cambio el juez Camacho Morales, en su voto disidente o de minoría, hace un cuidadoso análisis que demuestra que no se da en ningún caso la comprobación de una promesa de dádiva por parte de los presuntos corruptores y que las fechas señaladas en el voto de mayoría no son compatibles con una explicación congruente de las tareas encomendadas a [Nombre026]. Los recursos que [Nombre012] recibió de [Nombre026] -asevera el impugnante- corresponden en realidad a un crédito cuyo pago consignaron sus abogados desde 2004, pero las señoras juezas aseguran que no es un crédito sólo porque [Nombre026] afirma que no lo es.

El juez Camacho Morales advirtió la ilegalidad de la prueba 588, que dio origen al caso y que fue recibida sin orden judicial, en clara violación del ordenamiento constitucional. Es una situación igual a la de otra prueba también traída de Panamá, pero que en forma unánime fue declarada ilegal por el mismo tribunal penal en este juicio, mediante resolución de las 8:00 horas del 14 de mayo de 2010, por haberse obviado ese requisito fundamental de la orden judicial, necesaria para que sea lícito el levantamiento del secreto bancario. El Ministerio Público alegó que la prueba 588 sí es válida por haberse dado el consentimiento del representante legal de la compañía cuyas relaciones bancarias en Panamá se trajeron al debate. Esa pretendida autorización se dio casi siete años después de la obtención ilegal de la prueba y tres días después de que el Tribunal de Juicio emitiera su resolución de las 8:00 horas del de 14 de mayo de 2010, que declaró ilegal la prueba de Panamá sin autorización judicial; y se dio sin comprobar la personería del alegado representante.

Respecto a la prueba bancaria obtenida en aplicación del «Tratado Centroamericano de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá», el juez Camacho Morales lleva razón cuando dice que las formalidad legales establecidas como garantía de un derecho fundamental deben cumplirse en todo caso porque son de orden público y no son disponibles por los particulares. Y la demás prueba que se deriva de la N° 588 es a su vez ilegítima, por lo que suprimida da lugar a que no exista prueba de hecho alguno de la acusación. La invalidez de esta prueba la decretó la Sala Penal de la Corte Suprema de Justicia dos semanas después de la emisión de la sentencia que se impugna en esta sede, cuando la Sala Tercera de la Corte Suprema de Justicia [alude a la sentencia N° 499 de las 11:45 horas del 11 de mayo de 2011] resolvió los recursos interpuestos contra la sentencia que se dictó en el caso «Caja-Fischel», que se refiere no solo a la misma prueba, sino también a otro asunto en que, como sucede en este, se le quiso dar valor por la autorización de [Nombre032].

Pero además hay otras diecinueve pruebas bancarias [las cuales solicita que se tengan como prueba de este agravio] que adolecen del defecto original de que la resolución judicial no dictó el levantamiento del secreto bancario, sino que apenas dio orden de examen, registro y secuestro de la documentación (si no se ordena el levantamiento el banco no puede proporcionar la información, aún cuando fiscales o policías hayan sido facultados para el secuestro de la documentación). Las violaciones se dieron primero respecto al procedimiento seguido para obtener la prueba bancaria, tanto del Banco Interfin como en la Sociedad Acobo Fondos de Inversión (los oficiales del O.I.J. hicieron el secuestro después de que había vencido el plazo ordenado por la Juez de garantías para que se realizara la diligencia), y luego cuando el tribunal incurre en el error de darle validez a esa prueba ilegalmente obtenida e incorporada al debate, lo que incidió en una incorrecta determinación de los hechos.

Conforme al voto del juez Camacho Morales, el trámite seguido para el otorgamiento del criterio de oportunidad a [Nombre026] fue defectuoso e ilegal, era improcedente autorizarlo y la resolución del Juzgado Penal que lo acordó es ineficaz porque carece de fundamento, de ahí que la declaración que ese imputado rindió durante el debate resulta ilícita. Las señoras juezas del Tribunal rechazaron la protesta por actividad procesal defectuosa, declarándose incompetentes para resolver sobre los vicios en su tramitación y en su aprobación judicial (cfr. resolución de las 13:30 horas del 2 de setiembre de 2010, tomo XXXVIII, folios 13676 a 13736 vuelto). A [Nombre026] se le aplicó el criterio de oportunidad, se le benefició en forma desproporcionada como supuesto "colaborador", aún cuando no es un imputado cuya conducta evidencie una reprochabilidad menor en comparación a la que se atribuyó a los demás agentes.

El Ministerio Público le ocultó a la jueza penal que aprobó el criterio de oportunidad información determinante para establecer la reprochabilidad de su conducta, por otras acciones suyas que también podrían considerarse delictivas, pero contra las cuales la Fiscalía no ejerció posteriormente la acción penal, por la aplicación del criterio de oportunidad, por lo que de hecho se le otorgó una impunidad ajena al control jurisdiccional. En cuanto a la prescripción de la acción penal, reprocha que las señoras juezas le aplicaron incorrectamente el inciso a del artículo 62 de la Ley contra la Corrupción y el Enriquecimiento ilícito en la Función Pública, Ley N° 8422 de 6 de octubre de 2004 (vigente desde su publicación en el diario La Gaceta N° 212 del 29 de octubre de 2004), que elimina la reducción del plazo a la mitad establecido por el artículo 33 del Código Procesal Penal que opera con la indagatoria.

La primera imputación formal se dio con la declaración del 15 de octubre de de 2004 y surtió los efectos de la ley vigente en su momento, ese efecto no puede ser modificado por una ley posterior, pues implicaría una aplicación retroactiva de la ley en su perjuicio, infringiendo el artículo 34 de la Constitución Política. Hubo infracción al principio de juez natural, porque a la jueza Rosaura García fue traída de la Escuela Judicial para presidir el Tribunal de Juicio y apenas terminó el debate volvió a la Escuela Judicial, a pesar de lo cual siguió volviendo al Tribunal para participar en instancias de este proceso, a diferencia del juez Camacho Morales, que se traslada a otra sede judicial y no participa en una instancia de resolución de una solicitud de aclaración y adición (en la que sí intervino la jueza Rosaura García). El Tribunal de Juicio le impidió ejercer su defensa material. Dada su especialidad profesional, el Dr. [Nombre012] solicitó al Tribunal que le permitiera ejercer personalmente su defensa material, interrogando al perito [Nombre033], en relación a la cuantificación del daño social originado por los actos de corrupción atribuidos a los demandados civiles, pero el Tribunal le negó el ejercicio de ese derecho, por lo que su defensa hizo reserva de casación.

Las señoras juezas que dictaron la sentencia condenatoria actuaron condicionadas e influenciadas por las circunstancias sociales. Un acontecimiento de la dimensión mediática y política como es el proceso penal contra de un Ex Presidente de la República y Secretario General de la Organización de Estados Americanos, conlleva una inmensa carga emotiva, también por el escarnio que se montó cuando voluntariamente regresó al país y el clima que se vivió a nivel nacional desde entonces, todo esto magnificado por las acciones del entonces Presidente [Nombre034], del Fiscal General Francisco Dall'Anese Ruiz, dirigentes políticos y medios de comunicación. Hubo una "puesta en escena de inculpación" y así fue precondenado por la opinión pública en un juicio mediático, con mayor dureza por ser él un personaje público. Ese juicio paralelo ejerce una presión que influyó en el proceso judicial, porque creó en el subconciente de las señoras juezas la idea que solamente la condena cumpliría con las expectativas populares y defendería el prestigio del Poder Judicial. «Los jueces no pueden apartarse de ser la boca de la ley», subraya el recurrente, pero la juezas, subconcientemente predeterminadas o parcializadas por el peso de ese entorno social, optaron por interpretaciones no fundamentadas para concluir en su condena, a pesar de que no hubo ninguna demostración de su culpabilidad, a lo largo de un proceso tortuoso y degradante, en el que incluso se le tuvo indebidamente privado de su libertad.

La pena que le fue impuesta es contradictoria, carece de fundamentación y no es objetiva. Al recurrente se le impuso la pena máxima, mientras que a [Nombre026], quien aparece vinculado a más hechos delictivos y con más imputados, se le aplica el principio de oportunidad. Al fijar la pena solo se refieren a su condición de Ex Presidente, pero no se tomaron en cuenta las condiciones personales suyas positivas o favorables, anteriores y posteriores a los hechos, como su edad, su comportamiento durante todo el proceso. Tampoco explican las señoras juezas porque deniegan el beneficio de ejecución condicional de la pena, cuando se dan todos los presupuestos objetivos y subjetivos para su aplicación, porque él sería primario, tiene familia, realiza labores como docente en la Universidad de Costa Rica a pesar de estar pensionado. Luego de este «Sumario», entre los folios 172377 a 172378, desarrolla un «Indice» que enlista los distintos apartados y reclamos que se desarrollan a lo largo del recurso, de la siguiente manera: Sección Primera.- Inconformidad con la determinación de los hechos.

La determinación de hechos tenidos por ciertos en la sentencia viola las reglas de la lógica, de la sicología y de la por lo que no tienen fundamentación y su determinación deviene en arbitraria. Los hechos que se dicen acreditados no corresponden a la prueba presentada al debate (cfr. Recurso, folios 172381 a 172382). A. Falsa determinación de la decisión de corromper. Se impugna la acreditación de los hechos probados de la sentencia números 26, 27 y 48, que considera meras suposiciones, arbitrarias y carentes de fundamento (cfr. recurso, folios 172382 a 172386). B. Falsa determinación del objeto de los contratos entre Alcatel y Servicios Notariales QC. Se refuta la acreditación de los hechos probados de la sentencia números 48 a 59. Los contratos anteriores a los cuatro contratos de asesoría entre Alcatel y servicios Notariales QC que se referían a líneas fijas no fueron investigados por el Ministerio Público, ni tomados en cuenta por las señoras juezas, a pesar de que aquellos contratos anteriores podrían estar relacionados con otras acciones ilegítimas de [Nombre026] anteriores a la contratación de las cuatrocientas mil líneas celulares GSM.

La lógica indica que cuando una situación puede ser causada por hechos diferentes e independientes no cabe sin más atribuirlo a uno sólo de ellos, sin eliminar la posibilidad de que otros se hubiesen dado. "¿Por qué -pregunta el recurrente- si los contratos venían desde antes, si se refieren a otras ventas al ICE, si estas otras ventas al ICE se dieron, si se dieron cuando [Nombre026] era director del ICE, si las transferencias de recursos de Alcatel a [Nombre026] se refieren a esos otros hechos, y si los peritos del OIJ dicen que son pagos de esos hechos, por qué se rechaza sin más ni más esa posibilidad?" La conclusión no se deduce de las premisas (non sequitur, dice el recurrente, que de nuevo reprocha la falta de objetividad de las señoras juezas, cfr. folios 172386 a 172393). C. Falsas afirmaciones sobre mi supuesta participación en las supuestas acciones de [Nombre026] para cobrar a Alcatel.

Se rebate la acreditación de los hechos probados números 64, 68, 69, 70, 71, 74 y 75, que no son claros o precisos, se contradicen con el número 48 y algunos de ellos no tienen más soporte que el dicho del imputado colaborador [Nombre026], que no es un testimonio sino la declaración de un imputado interesado, cuyas manifestaciones necesariamente debieron ser corroboradas por otros medios probatorios, lo que no ocurrió en el presente caso. Pasar a París para hacer una llamada telefónica parece muy extraño, pero un despropósito increíble argumentar que [Nombre026] fue a París en el año 2001 para hacer una llamada que se hizo a mediados del año 2000, lo que denota que las señoras juezas manipulan descaradamente la prueba, contra las más elementales reglas de la experiencia (cfr. folios 172393 a 172395). D. Afirmaciones infundadas sobre supuestas reuniones de [Nombre026]. Se objeta la acreditación de los hechos probados de la sentencia números 85 a 93, porque no tienen otro soporte que la declaración del imputado colaborador [Nombre026].

Para las señoras juezas si el imputado [Nombre026] dice que se reunieron con el señor [Nombre035] en [...], basta con comprobar que no había salido del país corroborar su dicho. Según [Nombre026] él acepta en principio la oferta que se le realizó (ver declaraciones de [Nombre026] del 8 de setiembre a las 15:41 horas y del 9 de setiembre a las 13:45 horas, del año 2010) y lo que él haya reflexionado cuando llegó a su casa no tiene otro soporte que su dicho. El porcentaje de participación que se menciona no tiene ninguna relación con los montos que [Nombre026] dice haberle entregado a [Nombre012]. Según las declaraciones del imputado confeso [Nombre026] ante el Tribunal, la razón que tuvo para buscar a [Nombre012] -en esa reunión de la cual no hay prueba alguna-, habría sido para sentirse protegido ante la magnitud de los hechos y por su cercanía con don [Nombre012], para poder cumplir con las tres encomiendas que le encargó, según [Nombre026], Alcatel por medio de sus funcionarios.

Los hechos probados 85 a 92 sólo se deducen de las últimas declaraciones emitidas como contrapartida de un acuerdo con el Ministerio Público a la fecha de hacer el arreglo para un procedimiento abreviado: "Esto ocurre a principios de mayo de 2005 -dice el recurrente- cuando se rinde por primera vez la declaración de [Nombre026] de que su aceptación de la oferta de Alcatel es de antes de la compra de las 400.000 líneas (ver expediente principal Tomo VIII folios 2992 a 3010). Anteriormente, desde su primera indagatoria mantiene que fue un premio posterior a la adjudicación . Esa extraña declaración en tres días, pero escrita como un documento elaborado en razón de un acuerdo con párrafos entrecomillados, puntuación precisa y redacción de un escrito y no de una declaratoria, se mantiene como la base del acuerdo para el criterio de oportunidad según la manifestó la fiscala Criss González al Tribunal de Juicio.

Noten los señores jueces como los hechos realmente probados se ajustan mejor a la primera versión de [Nombre026] (pagos como un premio de Alcatel para asegurarse, posiblemente, la ampliación de la licitación en un 50% y nuevas futuras contrataciones; claro lo que no significa que no hubiesen anteriores pagos por otras contrataciones) que a la segunda, acuerdo de [Nombre026] con Alcatel un sábado a fines de 2000. La segunda versión es contradictoria porque [Nombre026] no podía saber el monto en dólares de la licitación, ni que eran 400.000 líneas, ni es lógico pagar por una migración a GSM que ya había sido aprobada muchos meses atrás, que tuviese responsabilidad de que se diese la licitación cuando esta fue ordenada por la Contraloría General de la República en enero 2001 cuando no aceptó compras directas. Tal vez esas circunstancias lo que explican es por qué la fiscalía no investigó ni trató de comprobar las supuestas reuniones en [...] de [Nombre026] con personeros de Alcatel, ni en mi casa conmigo".

Según el hecho probado número 93, [Nombre026] sí sabía el monto de la licitación antes del 5 de diciembre, que es cuando se determina el monto de las líneas: "De manera que las señoras juezas aceptan versiones contradictorias de [Nombre026] según sea conveniente para ratificar la condena que subconcientemente ya les había inculcado la condena de los medios y los políticos. Noten por favor también los señores jueces de apelación como las señoras juezas, sin fundamento alguno afirman que me transmitió: ' y las acciones que debía hacer a cambio ' En ninguna declaración de [Nombre026] ni a la Fiscalía, ni durante el juicio [Nombre026] afirmó tal cosa. ¿De dónde sacan esa afirmación las señoras juezas?..." (cfr. recurso, folios 172395 a 172400). E. Falsa determinación de hechos respecto a supuestos pagos de [Nombre026]. Se impugna la acreditación de los hechos probados número 95 a 98 y 100 a 114, que no tienen más soporte que la declaración del imputado colaborador [Nombre026], el propio informe N° 297-DEF-540-04/05 del Organismo de Investigación Judicial concluye que no es posible afirmar nada respecto a las supuestas entregas de efectivo que, por motivos distintos, en oportunidades diversas y contradictorias, [Nombre026] afirma haberle entregado a [Nombre012], que es imposible de verificar con la evidencia existente.

Las señoras juezas infringen las reglas de la sana crítica al considerar que [Nombre026] colaboró por arrepentimiento y patriotismo, o que si incurrió en contradicciones fuera por su "estado de ánimo", pues es evidente que le interesaba la condena de [Nombre012] para obtener a cambio su impunidad. [Nombre026] indica que no le hizo los pagos a [Nombre012] de un 60% que según él [Nombre012] le pidió, porque lo consideró injusto y desproporcionado: "¿Qué significa 'injusto y desproporcionado' -pregunta el impugnante- en el dicho de [Nombre026] que las señoras juezas recogen? ¿Injusto porque [Nombre026] es un autor principal que yo ni siquiera con sus falsas acusaciones podría serlo? ¿Desproporcionado en relación a las responsabilidades que [Nombre026] sabe le corresponden? Si es así, ¿cómo puede haberse aplicado un criterio de oportunidad a favor de [Nombre026]?" [Nombre026] no rindió declaración como testigo en el debate, no tiene condición de testigo (sino de imputado confeso, presuntamente "colaborador"), ni fue juramentado bajo obligación de decir verdad.

No se incorporaron válidamente al debate otros medios probatorios que confirmen la verdad de sus afirmaciones respecto al meollo de los hechos según la tipicidad del delito: la existencia de la promesa de retribución, el acto contrario a los deberes, la ocasión y tiempo de esos actos inexistentes, las acciones que [Nombre026] dice haber efectuado (cfr. recurso, folios 172400 a 172406). Sección Segunda.- Inconformidad con la incorporación y valoración de la prueba. Hay errores groseros en la incorporación de la prueba para el voto de mayoría por falta de determinación precisa y circunstanciada de hechos tenidos por acreditados por el tribunal. En el voto de mayoría hay falta de fundamentación, fundamentación contradictoria e inobservancia de las reglas de la sana crítica racional con respecto a medios y elementos probatorios de valor decisivo. El razonamiento para valorar la prueba es totalmente contrario a los hechos que constan en los hechos determinados por las pruebas.

Se basa la sentencia en prueba ilegítima que la hace totalmente inválida. A. Los contratos de consultoría entre Servicios Notariales QC S.A. y Alcatel. No hay determinación circunstanciada de que todos los contratos Alcatel - Servicios Notariales QC hayan sido para pagos ilegales relacionados con las cuatrocientas mil líneas celulares. El gravamen irreparable de tener por cierto este hecho es que se relaciona con las cuatrocientas mil líneas celulares y pagos de Alcatel que los propios peritos judiciales del O.I.J. establecen como causados por otras razones, teniendo por ello acreditada una supuesta recepción de [Nombre012] de dineros provenientes de Alcatel. Solicita que se anule la conclusión de que pagos de Alcatel por contratos y facturas no relacionadas con las cuatrocientas mil líneas son para pagos de esa negociación de celulares GSM y se anule la condenatoria en su contra, declarando su absolutoria (cfr. recurso, folios 172406 a 172415).

B. Supuesta petición de [Nombre012] a [Nombre026] para que Alcatel honre deudas pendientes. Este tema se desarrolla entre las páginas 1301 a 1307 de la sentencia, sin que se ofrezca un solo argumento que compruebe el dicho de [Nombre026] en el sentido de que [Nombre012] le pidió que ayudara en el cobro a Alcatel que según aquel le solicitó hacer y de que [Nombre012] le pidió que aprovechara un viaje a París para promover ese pago. Las señoras juezas hicieron especulaciones carentes de sustento y de interés procesal, pero de alta carga política respecto a las actividades de un distinguido abogado que ha desempeñado muy importantes funciones en Gobiernos del Partido Unidad Social Cristiana. Es falso que el recurrente haya participado en ese cobro (cfr. recurso, folios 172415 a 172416). C. Supuestos pagos a [Nombre012] y su relación con recursos provenientes de Alcatel. No hay una determinación circunstanciada de que los supuestos pagos de [Nombre026] a [Nombre012] hayan ocurrido, ni que provengan de recursos de Alcatel relacionados con las cuatrocientas mil líneas celulares y así se violan las reglas de la lógica, de la sicología y de la irreparable de tener por ciertos estos hechos es que son indispensables para relacionarlo con el delito que se le pretende achacar.

Solicita que se anulen las conclusiones de la sentencia sobre pagos de [Nombre026] a él y que se anule la condenatoria en su contra. Lo concerniente a la entrega y recepción de la dádiva lo desarrollan las señoras juezas entre las páginas 1703 a 1799 de la sentencia. La perito forense declaró que "No se determinó que directamente Don [Nombre012] hubiera recibido dinero de Servicios Notariales QC ni de Intelmar" (página 165 de la sentencia), de manera que es imprescindible poder establecer en cada caso una cadena de transmisión de recursos que no se rompa para poder concluir válidamente que recursos de Alcatel llegaron a manos de [Nombre012] por la instigación que supuestamente hizo a [Nombre026] para que delinquiera. Sin embargo las señoras juezas tienen la osadía de afirmar que la recepción de los dineros o certificados que [Nombre026] dice haberle dado a [Nombre012] ha sido "totalmente corroborada" con "prueba documental de carácter bancario".

El dicho del imputado [Nombre026] no fue corroborado por ningún elemento probatorio diferente a su declaración. "¿Cómo pueden decir las señoras juezas -pregunta el recurrente- que todas las afirmaciones de [Nombre026] han sido confirmadas, cuando hay contradicciones de fondo en cuanto: a) al tiempo del acuerdo con Alcatel si antes o después de la licitación; b) en cuanto a las sumas entregadas: $370.000 en efectivo, primero, luego lo cambia por certificados de depósito de BICSA por $130.000 todo en la presidencia en enero de 2001, y muchos meses después inventa dos entregas de efectivo una por 100.000 dólares en octubre de 2002 y otra de 130.000 dólares en setiembre de 2003 ambas en la casa de mis suegros; c) en cuanto a que afirmó en la declaración del 8 de octubre de 2004 que había enviado una suma no determinada, por un medio no determinado y en época no determinada a la sociedad Inversiones Dennise para luego aceptar que no lo hizo nunca; d) Si dijo que yo le había dictado la dirección ABA de Inversiones Dennise, y luego con imaginación rica en detalles dice que la copio de la pantalla de mi computadora; e) Si se atreve a decir que guardaba efectivo de origen desconocido en escondites de su casa por miles de dólares, él que en todas sus transacciones trata de poner el dinero a generar intereses de inmediato; f) Si no hay prueba alguna de los puntos centrales de su declaración como la reunión en [...], su llamada para concertar una reunión conmigo, la falsa reunión en mi casa; g) Si dice que abre la cuenta del Saint George Bank para enviarle dinero a su hija que está estudiando en los Estados Unidos, y ella había terminado sus estudios; h) Si se contradice diciendo que en la reunión en [...] no se habló de monto sólo de porcentaje porque no se sabía el volumen envuelto, y dice que al día siguiente en la supuesta reunión en mi casa me indicó que el monto era entre uno y medio y dos millones de dólares".

Las observaciones que hicieron los peritos de su defensa, señores [Nombre030] y [Nombre031], respecto a las inconsistencias de fechas, horas de transacción, papelería de bancos, firmas de clientes, constitución y liquidación de certificados de inversión, transacciones en efectivo, aún cuando son consignadas como alegatos de la Defensa técnica en la sentencia, no se analizan y continúan con el dicho de los informes de la Sección de Delitos Económicos y Financieros del O.I.J. que dependen a su vez de dichos de funcionarios bancarios no verificados. Además los mismos peritos forenses reconocen las graves limitaciones de sus informes en sus propias declaraciones, señalando que no cotejaron ni verificaron las informaciones en casos de inconsistencias de fechas, horas de transacciones, papelería de bancos, firmas de clientes, constitución y liquidación de certificados de inversión, pues confiaron totalmente en lo que les dijeron los bancos, limitaciones que no son tomadas en cuenta por las señoras juezas, lo que ya por sí constituye una falta en la fundamentación de la sentencia que deviene en incompleta.

A lo largo del debate quedó establecida una serie de indicios sospechosos sobre las actuaciones del Banco Cuscatlán, que sin embargo no llevaron a la Fiscalía a investigar si se estaban violando las leyes de legitimación de capitales; tampoco los peritos forenses se molestaron en hacer averiguaciones al respecto, o que al menos se comunicaran a la SUGEF. ¿No debería llamar la atención que movimientos de más de quince millones de dólares hayan ingresado a las cuentas de Servicios Notariales QC sin que esas entidades financieras buscaran mayores justificaciones? ¿No es extraño que luego esas 'explicaciones' que a ellos les servían para pretender determinar el origen el Alcatel de diversas transacciones por medios que van contra la experiencia bancaria y financiera en cuanto a sistemas de informática, 'validaciones de caja', manejo de efectivo en cambios de certificados de depósito, transferencias entre bancos locales y extranjeros, cambios entre distintos valores de diferentes integrantes del grupo financiero, aceptación de firmas de quienes no tienen poder, etc, etc.?

Los peritos forenses hicieron uso de documentos en inglés, aunque no tenían dominio de ese idioma, y muchas de sus conclusiones -como de las señoras juezas- se basan en el dicho de los banqueros, sin una comprobación válida de su dicho (cfr. recurso, folios 172416 a 172431). D. Valoración de la declaración sin juramento del imputado confeso [Nombre026]. El voto de mayoría acepta que la declaración de [Nombre026] no es prueba, sin embargo acepta su dicho sin que ninguna prueba o indicio lo respalde en puntos sustanciales para poder de alguna manera relacionar a [Nombre012] con el ilícito. La fundamentación es ilegítima, viola las reglas de la lógica, la experiencia y la psicología y se basa en prueba ilegal. Causa un gravamen irreparable al tener ilegítimamente por cierta la declaración de un imputado confeso, que no es prueba y cuya veracidad no corrobora ninguna otra prueba. La propia Sala Constitucional señaló que: "Es importante mencionar como referencia, que el Tribunal Europeo de Derechos Humanos [...] admitió la legitimidad del testigo de la corona o arrepentido [...], que su admisibilidad debe ser sólo como fuente de prueba indiciaria, es decir, que los datos o informaciones que brinde requieren el respaldo de otros medios de prueba.

Se convierte en un medio de investigación sujeto a confirmación, directa o indirecta, de los datos y circunstancias que haya brindado sobre los hechos investigados" (Sala Constitucional, N° 12090 de las 14:40 hrs. del 31 de julio de 2009). "Es la culpabilidad lo que se debe probar, no la inocencia", reitera el quejoso. Lo que [Nombre026] afirma es que su reflexión fue que podría necesitar ayuda para cumplir con su plan, no que necesitara convencimiento, todos los testigos el propio [Nombre026] fueron contestes de que [Nombre012] nunca le pidió nada a ningún director o funcionario del ICE con respecto a la licitación de las cuatrocientas mil líneas celulares GSM, ni respecto a ninguna compra ni contrato. "Y para colmo de contradicción -dice el recurrente-, me busca por si necesita ayuda, no me la pide, y ni siquiera me informa de las condiciones que le habían supuestamente solicitado cumplir" Para las señoras juezas la prueba "fehaciente" de que se reunieron los días 2 y 3 de diciembre de 2000 en [...] y en casa de [Nombre012] es que los supuestos partícipes estaban en el país (según los registros de entrada y salida del país de [Nombre026], [Nombre015], [Nombre035] y [Nombre012]), conclusión que no se deriva de las premisas: "Con ese razonamiento -dice el quejoso- todos los que hoy estamos en Costa Rica está probado que nos reunimos, si lo dice [Nombre026]".

Las señoras juezas incurren en una "ciega credibilidad" a lo que diga [Nombre026], sea contradictorio o no, hayan al menos indicios que lo confirmen o no, de acuerdo con la experiencia o no, vaya contra la realidad del tiempo o no, determine o no según su dicho la ubicación de las personas en el mundo: "...es aún más injustificado -agrega- cuando las señoras juezas fueron testigos presenciales de las declaraciones de [Nombre026] respecto a los ingresos injustificados cuando fue Ministro de Vivienda, y los otros ingresos relacionados con otros presuntos delitos confesados por [Nombre026] y corroborados por el OIJ". Las cuentas bancarias en colones y otras posibles cuentas de [Nombre026] a nombre suyo o de su esposa no fueron investigadas porque no lo pidió el Ministerio Público, tampoco se investigaron los otros posibles delitos de [Nombre026] aunque se le informó de ellos al Ministerio Público, pues los fiscales no pidieron que se investigaran (ver declaración de [Nombre036], páginas 190 y 193 de la Sentencia).

De todo esto tuvieron conocimiento las señoras juezas pero esto no afectó su credibilidad total, a prueba de cualquier contradicción o error en el dicho de [Nombre026]. "Se me podría argumentar que eran hechos no juzgados y por lo tanto no se podían usar por el tribunal pues se rompería el principio de inocencia ¿Pero entonces por qué contra mi sí se argumenta que yo no probé una naturaleza distinta como de los imputados supuestos pagos de [Nombre026]? ¿Cuándo es en mi contra no rige el principio de inocencia, sino sólo para el imputado confeso [Nombre026]?" El juez Camacho Morales, en cambio, demuestra que no se da en ningún caso la comprobación de una promesa por parte de los presuntos corruptores y las fechas aceptadas por las señoras juezas en su voto de mayoría no son compatibles con una explicación congruente de las tareas encomendadas a [Nombre026]. En lo tocante al ilegal criterio de oportunidad concedido a [Nombre026] con engaño a los jueces, las señoras juezas en voto divido sobre la legalidad y procedencia de la aprobación judicial de ese criterio, negando que tuvieran competencia para conocerlo en el debate oral, En esta sentencia se argumenta que [Nombre026] desde el principio quiso cooperar en su primera declaración en setiembre de 2004, sin tomar en cuenta que en esa declaración los hechos que él describe son totalmente contrarios a los que acepta en mayo de 2005, cuando llega a un acuerdo para procedimiento abreviado con el Ministerio Público y los cuales son prácticamente idénticos a los que se incluyen para el acuerdo del criterio de oportunidad.

El voto de mayoría señala que si bien [Nombre026] sale impune de sus acciones eso no es el resultado de su decisión sino de la aprobación legislativa del instituto y de la aprobación por otros jueces. Eso no es así porque le cabía al Tribunal de Juicio la responsabilidad de pronunciarse sobre la aprobación al criterio de oportunidad y se negaron a hacerlo. La mayoría cree ingenuamente que [Nombre026] colaboró motivado por supuestas razones patrióticas, a quien se impuso arresto domiciliario y quedó impune, porque el Ministerio Público en vez de prescindir parcialmente de la persecución penal limitándose a no acusarlo del tema de las cuatrocientas mil líneas, prescindió totalmente de la persecución, incluyendo otros delitos confesados. Nada dice el voto de mayoría sobre la negativa del Ministerio Público de investigar otros delitos confesados por [Nombre026] y comprobados en los reportes de contables del OIJ.

Tampoco con relación a los otros delitos confesados por [Nombre026] hace referencia el voto de mayoría a las circunstancias previas ni lo hace con relación a las sumas millonarias que con el arreglo del criterio de oportunidad quedaron en poder de [Nombre026]. Ha sido clara la tendencia a favorecer a [Nombre026] en todo. La mayoría se basa en la declaración de [Nombre026] para tipificar la conducta atribuida a [Nombre012] como «instigación», pero ni las supuestas palabras de [Nombre026] en [...], ni sus alegados "pensamientos" o "reflexiones" en su casa, ni sus presuntas palabras en la inventada reunión en casa de [Nombre012] señalan ni que [Nombre026] necesitara ser inducido a hacer algo que ya había aceptado en principio (o sea lo había aceptado o acogido en esencia) y que venía reiteradamente haciendo en otros casos que no se quisieron investigar, ni que [Nombre012] le produjera la voluntad y resolución de hacerlo: "No hay manera de poder calificar los actos de los cuales me acusa [Nombre026] y los hechos que describe la acusación como instigación a una corrupción agravada en razón de un cohecho impropio, lo cual hace atípica mi conducta y determina una violación de la ley sustancial del código Penal, que demanda un sobreseimiento o absolutoria en mi favor..." (cfr. recurso, folios 172432 a 172451).

E. Naturaleza de la entrega de recursos de [Nombre026] al Presidente. El voto de mayoría rechaza la versión de [Nombre012] sobre la naturaleza de los recursos que [Nombre026] le dio a [Nombre012] y que este siempre aceptó que aquel le entregó, y se pagaron en el año 2004, consignando su pago al Ministerio Público, sin otro argumento que el dicho de [Nombre026]. Hay una errónea valoración de su testimonio y le causa un gravamen irreparable que se tuviera por cierta la declaración de ese imputado confeso, que no es prueba ni encuentra sustento en alguna otra prueba. "En relación con la naturaleza de los recursos entregados por [Nombre026] a mi desde siempre he admitido y que -constituyen el todo de lo que reclama él haberme entregado en su declaración inicial (30 de setiembre de 2004)- junto con el efectivo que falsamente inicialmente dice haberme entregado a fines de 2000 o principios de 2001 y después se desdice y dice no haberme entregado, afirman las señoras juezas que no es un crédito cuyo pago consignaron mis abogados desde 2004.

Y, ¿por qué aseguran no es un crédito? Porque [Nombre026] afirma que no lo es..." (cfr. recurso, folios 172451 a 172452). F. Una sentencia basada en prueba ilegítima. Prueba bancaria obtenida sin orden judicial en Panamá (Prueba 588). El voto de mayoría utiliza y se basa de manera exhaustiva en la prueba 588 que es ilegal e inconstitucional y es el fundamento de la presunta existencia del delito. La prueba 588 es una copia certificada de la Asistencia Judicial de la República de Panamá enviada mediante notas PGR-030-2004, de fecha 10 de septiembre de 2004 y N° 316-DN-TALM-04 del 6 de setiembre de 2004. Dicha prueba trata de una copia certificada de carta rogatoria a Panamá (fechada el 10 de setiembre de 2004) en donde la Fiscalía solicitó a la Procuraduría General de la República, la aplicación del «Tratado Centroamericano de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá» para la recopilación de prueba en la investigación correspondiente a la causa penal denominada «Caja-Fischel» (expediente penal 04-005356-0042-PE).

En dicho documento, la fiscalía solicitó que se secuestre y registre la información de todas las cuentas bancarias y en todas las entidades financieras del sistema bancario de Panamá, correspondiente a la sociedad Marchwood Holding. De la misma manera, la Fiscalía solicitó, la remisión de todos los movimientos financieros y sus respectivos respaldos (créditos y débitos), entre ellos los cheques que se han emitido de esa cuenta, desde su apertura y hasta la fecha, ya sea de gerencia o regulares, junto con los documentos que respaldan dichas emisiones, así como el expediente de apertura de cuenta y todos os documentos que se han presentado ante el banco por parte de quien o quienes están autorizados en la misma. En todo ese flujo de información entre el Ministerio Público y autoridades administrativas, para la obtención de la prueba 588, se destaca la ausencia de la correspondiente orden judicial emitida por el juez de garantías del presente proceso para solicitar la información requerida, por tanto tal solicitud contiene vicios de legalidad e inconstitucionalidad, pues dicha solicitud se formuló y ejecutó sin mediar la orden de un juez.

La Sala Constitucional interpreta que los documentos que contienen información financiera están protegidos por el «secreto bancario», que tal secreto se encuentra dentro de los supuestos protegidos por el artículo 24 de la Constitución Política, de modo que para realizar cualquier diligencia judicial, las autoridades deben de respetar el orden y forma prevista por la Constitución Política (cfr. Sala Constitucional, n° 578 de las 10:45 horas del 28 de febrero de 1992). La garantía constitucional es irrenunciable y de aplicación a todos los habitantes, incluso a extranjeros, no es admisible que violaciones a derechos fundamentales (la intimidad y el secreto bancario) en el extranjero se hagan valer como legítimas en Costa Rica. Se inobservó también la Ley de registro, secuestro y examen de documentos privados e intervención de las comunicaciones (Ley N° 7425), pues de sus artículos 1, 2 y 3 se colige que a) sólo los tribunales de justicia pueden ordenar el secuestro y registro de documentos privados cuando sea absolutamente indispensable para el esclarecimiento de asuntos penales sometidos a su conocimiento; b) sólo el juez penal del procedimiento preparatorio o juez de garantías, durante la investigación puede ordenar el secuestro y registro de documentos privados, ya sea oficiosamente o a petición del Ministerio Público, siempre que pueda servir de prueba a la comisión de una conducta delictiva; y c) la orden de secuestro, registro o examen deberá efectuarse, so pena de nulidad, mediante un auto fundado en el que se individualicen, de ser posible, los documentos sobre los cuales se ejecutará la medida de registro de registro, secuestro o examen, el nombre de la persona que los tenga en su poder y el lugar donde se encuentran, sin importar si esta información está dentro o fuera del país.

En este caso hay ausencia absoluta de la orden jurisdiccional referida, que autorice el secuestro de documentos privados financieros de Marchwood Holdings y que se refiera a toda la información solicitada a las autoridades de Panamá y que se aceptó como la prueba 588. Pero además la información establecida en la denominada prueba 588, como copia certificada que es, proviene de otra causa penal denominada «Caja-Fischel» y si se analiza la prueba 618, que es el Informe Pericial 428-DEF-443-05.05 con sus 19 anexos, donde fácilmente podemos comprender que en dicho informe se hacen referencias a transferencias de dinero de una empresa denominada Servicios Notariales, ajena a la causa «Caja-Fischel», hacia Marchwood Holding, que si investigaba en aquella. De esta manera, el Ministerio Público se entera de la existencia de la sociedad Servicios Notariales QC, es decir, la prueba espuria 588 proviene de una fuente que no es independiente ni anterior, esto es, proviene de otra causa denominada «Caja-Fischel».

Esta información ilegal llega desde Panamá a inicios de setiembre del 2004 y concretamente en la Fiscalía para el día 10 de setiembre del 2004, según consta al folio 895 de la sentencia. En ese momento, únicamente se solicitó la información sobre Marchwood Holdings, no sobre Servicios Notariales QC, sino que es a partir del 10 de setiembre de 2004 cuando el Ministerio Público se entera de la existencia de una sociedad denominada Servicios Notariales QC y es ahí donde se decide empezar una línea independiente de investigación, que al final de cuentas se convirtió en la presente causa penal. Por ello el origen de la presente causa penal no es independiente de la investigación del caso «Caja-Fischel». La presente causa penal tiene su génesis en la prueba 588, documentación que no puede puede ser considerada como prueba, porque fue tramitada con infracción del artículo 24 de la Constitución Política y en violación a la teoría de la fuente independiente de la prueba, pero las señoras juezas del voto de mayoría tratan infructuosamente de justificar la independencia de la prueba 588 al hacer referencia (cfr. paginas 933 y siguientes de la sentencia) a que existen otros medios de prueba que demuestran la legalidad del origen del presente proceso, tales como la prueba 592.9 (monitoreo de prensa escrita del 9 al 31 de diciembre de 2004), la prueba 682 (publicaciones aparecidas en los periódicos de circulación nacional, entre ellas el Diario Extra del 2004), pero dicho material únicamente hace referencia a una casa en [...] y a [Nombre021], la otra a Taiwan, pero lo cierto del caso es que antes de aquella fecha (10 de setiembre 204) el Ministerio Público no conocía la existencia de la empresa Servicios Notariales QC.

Si se hace la supresión hipotética de la prueba 588, no existen otros elementos de prueba independientes y anteriores que le den al Ministerio Público el conocimiento de la existencia de la Sociedad Servicios Notariales QC, para que originara el presente proceso penal, conforme a la jurisprudencia de la Sala Constitucional (cita concretamente la sentencia N° 4636 de las 16:12 horas del 12 de agosto de 1997). Sin embargo las señoras juezas de mayoría pretenden "santificar" la ilegalidad de la prueba 588 con una nota enviada mucho tiempo después de la obtención ilegítima de dicha documentación probatoria: "Sabiendo la ilicitud de la prueba 588 y de las consecuencias derivadas de su obtención ilegítima, el Ministerio Público, años después de haber obtenido esa información de forma espuria, el señor [Nombre032], en virtud de su negociación con el Ministerio Público para que este órgano pidiera la pena menos para él durante el debate del caso Caja-Fischel, envía una nota donde pretende autorizar la obtención, el uso y la utilización de toda la información bancaria obtenida en la República de Panamá correspondiente a la empresa Marchwood Holding en forma retroactiva al momento anterior al día 10 de setiembre del 2004, fecha en la cual el Ministerio Público se entera de la existencia Servicios Notariales QC." En el voto de mayoría, a partir de la página 896, las señoras juezas validan y fundamentan la condenatoria en dicha nota suscrita por [Nombre032] y que se incorporó durante el debate de la presente causa como la prueba 759 (nota suscrita por [Nombre032] del 17 de mayo de 2010).

Esa nota no es más que una aceptación tácita de la actuación ilegal de la Fiscalía, pues de lo contrario jamás hubieran corrido, años después, a tratar de validar un vicio absoluto que quedó consumado en el momento de la obtención ilegal. Aunque cabe distinguir entre obtención e incorporación de la prueba, resulta descabellada o absurda la tesis de la mayoría en el sentido de que una prueba ilícitamente obtenida pueda ser lícitamente incorporada, pues desde la sentencia del Magistrado Piza N° 1739-92 se ha entendido que la prueba solo tiene valor si ha sido obtenida por un medio lícito. Además nunca se probaron las facultades (tipo de poder) de don [Nombre032] en relación con Marchwood Holding: "Es decir, años después, viene un señor determinado, consintiendo ilegalmente algo, donde no sabemos que tiene las facultades legales para hacerlo..." porque no existe en todo el expediente una sola certificación de personería jurídica emitida legalmente que diga que para la fecha de emisión de la nota, sea el 17 de mayo de 2010, don [Nombre032] tenía facultades para consentir retroactivamente y en forma ilegal violaciones al secreto bancario de la empresa Marchwood Holding, sino que las señoras juezas creyeron únicamente en la palabra de don [Nombre032], ni siquiera le pidieron la acreditación de sus facultades como personero de Marchwood Holding.

El voto de minoría del juez Camacho Morales, en cambio, expone de manera seria y fundada por qué la mayoría no observó el artículo 181 del Código Procesal Penal por basarse en prueba ilegítima, lesionando también los artículos 363, 142 y 184 de ese mismo texto legal. El juez Camacho Morales concluye que la prueba 588 es ilegítima por las mismas razones por las que el tribunal -de forma unánime- anteriormente consideró ilegítima otra prueba también traída de Panamá en este juicio, mediante resolución de las 8:00 horas del 14 de mayo de 2010 (cfr. tomo XXVII, folios 13352 a 13408), por haberse obviado el requisito constitucional y legal de la orden judicial. El Ministerio Público alegó que la prueba 588 sí es válida por haberse dado el consentimiento del representante legal de la compañía cuyas relaciones bancarias en Panamá se trajeron al debate, y eso fue aceptado por las señoras juezas.

La Sala Tercera de la Corte, mediante resolución N° 499-2011 de las 11:45 horas del 11 de mayo del 2011 -en el caso «Caja-Fischel»-, se pronunció sobre esa misma prueba que se conoce como "588", declarándola ineficaz, así como los demás elementos de prueba que se derivan directamente de ella. En ese juicio «Caja Fischel», al que se refiere la sentencia N° 499-2011, también se pretendió dar validez a la prueba ilegítima procedente de Panamá, esa misma que en el presente caso corresponde a la número 588, con el mismo ardid de recurrir a una aprobación de [Nombre032], convalidación que tampoco admite la mayoría de la Sala Tercera en el voto N° 499-2011, sino que la considera absolutamente ilegal. G. Prueba bancaria entregada sin orden judicial. El voto de mayoría se basa en documentación bancaria ilegalmente introducida al debate, porque se relaciona con la falta de autorización judicial cuando se haya facultado a fiscales o policías judiciales para el secuestro de la documentación, conforme al criterio externado por la Sala Constitucional en su sentencia N° 578-92 de las 10:45 horas del 28 de febrero de 1992 y por la Comisión de Asuntos Penales de la Corte Suprema de Justicia.

El quejoso detalla diecinueve resoluciones del Juzgado Penal de Hacienda del Segundo Circuito Judicial de San José y sostiene que se deben declarar ineficaces los documentos bancarios que fueron secuestrados con fundamento en ellas, porque ninguna autorizó a la entidad bancaria a levantar el secreto de la documentación privada (cfr. recurso, folios 172473 a 172486). H. Prueba bancaria entregada fuera del plazo judicialmente establecido. El voto de mayoría se basa en prueba ilegítimamente obtenida, secuestrada e introducida al debate, recabada fuera del plazo determinado en la autorización judicial, en los casos del Grupo Financiero Interfín y de Acobo Sociedad de Fondos de Inversión, lo que se ha venido reclamando desde la audiencia preliminar, al inicio del debate y en las conclusiones. [Nombre012] reprocha que que se lesionó su derecho a la intimidad al violentar el secreto bancario con respecto a sus cuentas, en un momento en que la actuación de los funcionarios judiciales no estaba amparada a ninguna orden judicial.

Los oficiales del OIJ que secuestraron la documentación, por delegación realizada por el Ministerio Público, hicieron el secuestro después de que había vencido el plazo ordenado por la jueza de garantías para que se realizara la diligencia, lo que constituye una auténtica violación al debido proceso (cfr. recurso, folios 172487 a 172490). a. Grupo Financiero Interfin. En este caso la jueza penal ordenó 2004, sin embargo se realizó hasta el día 27 de octubre, por lo que la actuación es ilegítima e ineficaz la prueba así obtenida (cfr. folios 172491 a 172492). b. Acobo Sociedad de Fondos de Inversión. El Juzgado Penal ordenó embargo se realizó hasta el día 19 de octubre, por lo que la actuación es ilegítima e ineficaz la prueba así obtenida (cfr. folios 172492 a 172496). Sección Tercera.- Inconformidad con la fundamentación jurídica. A. Criterio de oportunidad. El voto de mayoría se basa en prueba ilegal, concretamente en la declaración, como supuesto imputado colaborador confeso, de [Nombre026], protegido por un criterio de oportunidad ilegalmente solicitado y aprobado para procurar su impunidad, y en acciones de hecho del Ministerio Público que sin aprobación judicial le dan una ilegítima impunidad sobre otros delitos confesados por él mismo.

Solicita que se anule la declaración rendida por [Nombre026] en el debate y, como no hay ninguna otra prueba en su contra de ningún delito, solicita que se anule la condena y se enmiende el vicio resolviendo el asunto de acuerdo con la ley aplicable, absolviéndolo del delito acusado. En el video se puede apreciar que es el defensor de [Nombre026] quien le dicta las respuestas que debe dar en el debate. Las señoras juezas del voto de mayoría, en un voto previo a la sentencia, ya se habían declarado incompetentes para resolver la protesta por actividad procesal defectuosa que la defensa acusó contra los vicios en la tramitación y aplicación del criterio de oportunidad [se refiere al voto de las 13:30 horas del 2 de setiembre de 2010]. En cambio el juez Camacho Morales dice que sí es controlable la legalidad en la aplicación del principio de oportunidad y que en este asunto se otorgó mediante una resolución que carece en absoluto de fundamentación, por lo que no puede tener efecto legal alguno. [Nombre026] confesó muchos delitos, corroborados por la DEF del OIJ, que arbitrariamente se dejaron de investigar, por lo que no hay proporcionalidad en la aplicación del criterio de oportunidad.

Cuando el Ministerio Público solicitó a la jueza penal que aprobara el criterio de oportunidad, ocultó información determinante para establecer la menor reprochabilidad y la proporcionalidad en su aplicación, porque no se mencionaron en la solicitud otras conductas que podrían ser delictivas y fueron confesadas por [Nombre026]. El juez Camacho Morales señala lo improcedente de los arreglos monetario que realizó la procuraduría de la ética Pública, pues se legitimó a [Nombre026] para mantener la tenencia de sumas millonarias en dólares, y se quedó corto en sus estimaciones porque no tomó en cuenta otros ingresos que confesó [Nombre026], pero que el Ministerio Público se negó a investigar, de manera que ha sido el propio Estado el que lo ha legitimado para quedarse con más de un millón y medio de dólares (cfr. recurso, folios 172497 a 172515). B. Prescripción. El voto de mayoría niega que operó la prescripción de una pena de hasta tres años, pues pretenden aplicarle la disposición de una ley que se aprobó después de su indagatoria inicial, que ya le había conferido la reducción del plazo de prescripción a la mitad.

En la resolución de las 8:00 horas del del 14 de mayo de 2010 el tribunal dispuso, por unanimidad, reservar para ser resuelto en sentencia el pronunciamiento en cuanto a la aplicabilidad del artículo 62 de la Ley N° 8422 [«Ley contra la corrupción y el enriquecimiento ilícito en la función pública»,que rige a partir de su publicación en La Gaceta N° 212 del 29 de octubre de 2004]. Para [Nombre012] la primera imputación formal se dio con la declaración del 15 de octubre den 2004. Los actos procesales se rigen por la ley vigente al momento de su realización, no es posible aplicar una ley nueva retroactivamente a un acto procesal realizado durante la vigencia de la ley anterior [en ese sentido cita las sentencias de la Sala Constitucional N° 4397-99 de las 16:06 horas del 8 de junio de 1999 y del Tribunal de Casación Penal, N° 132 de las 10:30 horas del 23 de febrero de 2006]. Solicita que se declare prescrita la acción penal y se ordene el sobreseimiento a su favor (cfr. recurso, folios 172515 a 172519).

C. Ausencia de Juez natural. Se inobservó su derecho constitucional a ser juzgado por un juez natural. Esto así porque para integrar el tribunal se ordenó llamar a la jueza Rosaura García de la Escuela Judicial, quien asumió la presidencia del tribunal, tras lo cual se acordó el regreso de ella a la Escuela Judicial. Esto evidencia que fue traída ex profeso sólo para para resolver este caso, y no obstante haber regresado a la Escuela Judicial, posteriormente ella ha dictado diversas resoluciones, en vez de hacerlo su suplente, como si el caso fuera "suyo". En cambio, al juez Camacho Morales no lo han traído para dictar esas resoluciones posteriores a la sentencia (para resolver solicitudes de adición y aclaración a la sentencia), sino que las han resuelto con su suplente o sustituta, lo que denota el trato especial dado a la jueza García para que lo juzgue (cfr. recurso, folios 172520 a 172523).

D. Impedimento al ejercicio de su defensa material. Durante el debate se le impidió ejercer su derecho constitucional de defensa material, lo que constituye una violación al debido proceso que vicia de nulidad la sentencia. Esto así porque el tribunal le impidió interrogar personalmente al testigo o perito [Nombre033], ofrecido por la Procuraduría General de la República. Indica el recurrente que él es doctor en Economía, Catedrático de la Universidad de Costa Rica en la Facultad de Ciencias Económicas, que además ha sido profesor en la Universidad de California, Berkeley, en la Universidad Autónoma de Centro América, en la George Washington University en el Distrito de Columbia y en la Universidad Carlos III en Madrid, y que es abogado en ejercicio, por lo que él y sus defensores prefirieron que, por ser experto en el tema, él condujera el interrogatorio al perito. Sin embargo, el tribunal de juicio no lo permitió y su defensa hizo reserva de casación (cfr. recurso, folios 172524 a 172526).

E. Violaciones al debido proceso, inobservancia de la Constitución Política y de los Tratados Internacionales de Derechos Humanos suscritos por Costa Rica. La sentencia se funda en tortura y en actos que han violado el debido proceso y su oportunidad de defensa. Se han violado los derechos constitucionales de defensa, de juez natural, de no ser penado sin sentencia firme, de no ser penado sin demostración de culpabilidad ni sometido a trato cruel o degradante. La violación al debido proceso y a sus derechos, el juicio mediático y político, y la tortura sicológica continuada no solo condicionaron subconscientemente al Tribunal al único camino de condenarlo sino que dan origen a un proceso "no arreglado a Derecho", que es su garantía constitucional y de todo ciudadano costarricense. Hay un gravamen irreparable de la sentencia que surge del subconsciente de las señoras juezas y de un proceso que no fue regido por el debido proceso, por lo que solicita que se anule la sentencia y se declare su absolutoria. a. Juicio justo, juez y sus circunstancias.

En este acápite dice que no sólo hubo errores durante el debate y en el voto de mayoría de la sentencia, sino que también hubo defectos absolutos que se dieron a lo largo de todo este proceso, antes del debate, que no han sido subsanados o convalidados, por ser absolutos. La Fiscalía y un sector de la prensa decidieron persuadir erga omnes de su culpabilidad, a condicionar e inducir la actividad de los jueces a una sentencia condenatoria. Su detención se produjo en condiciones de innecesario escarnio y afrenta y se le negó un juicio justo, Las señoras juezas, de previo a la lectura de la parte dispositiva de la sentencia, en la sesión del 27 de abril de 2011, dijeron que no comparten la "...noción tradicional del juez o la jueza que funge como boca de la ley". Que los jueces sean boca de la ley, según Montesquieu, es la única manera de que los juicios se lleven a cabo cumpliendo con el principio de legalidad de los artículos 39 y 41 de la Constitución Política, según lo cuales la justicia debe ser "pronta, cumplida y en estricta conformidad con las leyes".

De esta manera el juez es a menudo boca de algunos medios de comunicación, reflejo de la opinión pública, demagogia (cfr. folios 172527 a 172532). b. Juicio mediático. Este caso es paradigma del juicio mediático o paralelo que compromete la independencia e imparcialidad del juzgador, proyectando una "solución" preconcebida del conflicto (cfr. folios 172532 a 172540). c. Tortura. Se han violentado sus derechos humanos a la dignidad, a no ser torturado, a proteger su honra y su imagen, a su estado de inocencia, a no ser exhibido como culpable y al debido proceso. La sentencia condenatoria surgió en condiciones totalmente irreparables por las violaciones cometidas contra sus derechos humanos, por lo que solicita que se anule la sentencia y se le declare absuelto. Fue sometido a tratamientos crueles y degradantes desde su llegada al Aeropuerto Internacional Juan Santamaría, según los hechos descritos en la sección F y la prueba ofrecida para corroborarlo (cfr. folios 172540 a 172545). d. Violaciones constitucionales, de instrumentos internacionales de derechos humanos y de las normas penales.

Ha sido imposible recibir un juicio justo desde que voluntariamente regresó al país el día 15 de octubre de 2004, por la duración sin sentido que convierte la investigación en pena, con la publicidad arbitraria que determina la interesada condena mediática, con el uso de pruebas falsas y el calabozo, con la detención ilegal, con la tortura y trato cruel de exhibición y escarnio, con la prisión en el aislamiento del calabozo por meses consecutivos, con la falta de objetividad del Ministerio Público y su negociado con un autor principal; se han incumplido las garantías de la Constitución Política, de los instrumentos internacionales en materia de derechos humanos y de las leyes de la República. Le corresponde al Tribunal de Apelación de Sentencia reparar esas violaciones declarándolas, anulando la sentencia recurrida y determinando su absolutoria. Sobre él cayó el escarnio, el menosprecio, el desprestigio, perdió posición y libertad, y vivió la amargura del sufrimiento de su familia (cfr. folios 172545 a 172566).

F. Hechos anteriores al juicio que han quebrantado el debido proceso por no aplicación o aplicación errónea de las normas constitucionales y legales, que garantizan el estado de inocencia y el derecho a la defensa. En este acápite enumera una serie de hechos, anteriores al juicio (se refieren a la etapa preliminar de investigación), mediante los cuales se violentó la normativa constitucional, internacional y nacional que señaló en el punto anterior (cfr. folios 172566 a 172666). Se trata de un desglose de 129 "hechos" (así los denomina el impugnante, aunque algunos de estos parágrafos además de hechos contienen análisis y reflexiones sobre las circunstancias que precedieron a la etapa de debate y al dictado de la sentencia), así como una interpretación sobre las acciones u omisiones, posibles motivos o afanes de algunos de los protagonistas y personajes de ese momento histórico, los que describe, enumera y consigna bajo los siguientes títulos: a) Tardanza injustificada de la investigación (hechos n° 1 a 14, cfr. folios 172568 a 172573); b) Las violaciones al secreto del procedimiento preliminar y la comunicabilidad del Ministerio Público con algunos medios de comunicación (hechos n° 15 a 17, cfr. folios 172573 a 172578); c) Detención ilegal (hechos n° 18 a 25, cfr. folios 172579 a 172581); d) Denegación del derecho de defensa (hechos n° 26 a 39, cfr. folios 172581 a 172603); e) Exhibición pública degradante, trato cruel, tortura sicológica (hechos n° 40 a 53, cfr. folios 172603 a 172609); f) Uso de pruebas falsas para obtener orden de prisión preventiva (hechos n° 54 a 69, cfr. folios 172610 a 172618); g) El imputado confeso [Nombre026]: de autor principal a imputado colaborador.

Acciones indebidas del Ministerio Público para tratar de concederle impunidad (hechos n° 70 a 79, folios 172618 a 172642); h) Afrenta a la soberanía del juez y juicio mediático (hechos n° 80 a 99, cfr. folios 172642 a 172653); i) Politización del caso (hechos n° 100 a 129, cfr. folios 172653 a 172666). Como la sentencia se fundamentó en un proceso tramitado en forma inconstitucional, con inobservancia de las normas procesales que protegen el estado de inocencia, el secreto del sumario, el juez natural, el derecho a la defensa, violación a la libertad personal, irrespeto a los derechos humanos y tortura, está viciada por defectos absolutos y debe ser anulada, para que resolviendo el asunto de acuerdo a la ley aplicable se declara la absolutoria del impugnante [Nombre012]. Sección Cuarta.- Falta de razonabilidad, equilibrio y proporcionalidad en la determinación de la pena. El voto de mayoría no fundamenta la determinación de la pena en su extremo mayor, contra [Nombre012], es contradictorio con la determinación que hace por unanimidad en la asignación de responsabilidades en las acciones civiles, lo que infringe las reglas de la sana crítica y causa un gravamen irreparable, porque al carecer de fundamentación la pena impuesta deviene arbitraria.

En el caso de que -pese a las graves objeciones que se han planteado- se confirme la condena a su contra, solicita que se readecue la pena a su extremo menor y se otorgue el beneficio de ejecución condicional, pues la pena impuesta por la mayoría es evidentemente desproporcionada, a todas luces exagerada e injusta. Las señoras juezas sólo le reprochan su condición de expresidente, pero no le atribuyen el dominio del hecho, sólo llegan a calificarlo de instigador, siendo que la propia Fiscalía señaló en sus conclusiones que [Nombre026] fue el autor con pleno demonio del hecho. No se tomaron en cuenta factores positivos para él, como su edad, su comportamiento antes y después del supuesto delito y durante todo el proceso, todo el vejamen sufrido, su sometimiento a la Administración de Justicia, que no es lo mismo que negarse a ejercer su derecho de defensa: "Las señoras señoras juezas, en fin, no explican porque soy acreedor a que se me imponga el extremo mayor de la pena y no el menor, ni tampoco porqué deniegan el beneficio de ejecución condicional c cuando se dan todos los presupuestos objetivos y subjetivos para su aplicación: soy sujeto primario, tengo familia, realizo labores como docente en la Universidad de Costa Rica a pesar de estar pensionado" (cfr. folios 172666 a 172670). Sección Quinta.- Petitoria. El Dr. [Nombre012] ordena las pretensiones de su recurso de la siguiente manera:

"1) Que se declaren CON LUGAR todas y cada una de las peticiones planteadas en este recurso de apelación de sentencia" "2) Que se declare la anulación de la sentencia IMPUGNADA que se dictó en mi contra y con fundamento en la evaluación de la prueba recibida en debate y la solicitada para este recurso se me absuelva de toda pena y responsabilidad en virtud de que como se determina de las Secciones Tercera D y E, por las violaciones al debido proceso que involucran violaciones a la ley sustantiva constitucional, a los tratados internacionales de derechos humanos aplicables en Costa Rica y a la ley penal, se determinó subconscientemente a las señoras juezas a incurrir en todas las violaciones a las leyes sustantivas y procesales durante el proceso que se señalaron en esas secciones. De esta manera a las violaciones a las leyes sustantivas indicadas expresamente en las Secciones Primera, Segunda, Tercera y Cuarta se les podrá remedio por el Tribunal que conoce esta apelación de sentencia, declarando mi absolutoria, dada la inexistencia de prueba alguna que acredite los hechos acusados en mi contra." "3) Que subsidiariamente a la segunda petición se me absuelva o sobresea por las razones aducidas en la Sección Segunda F tal como lo propone el Juez Jorge Camacho y en razón de la ilegalidad de la prueba en que se sustenta la acusación y la sentencia de las señoras juezas en su voto de mayoría.

Que así se declare la ilegalidad de la prueba 588 con lo que 'se concluye que no es posible tener por demostrado hecho alguno de la acusación, porque todo lo prueba recabada en el proceso es pruebo ilícita, por derivar lo totalidad de la investigación de uno, o más bien, de varias violaciones constitucionales en lo obtención de lo prueba que orientó desde su génesis la investigación y al no existir ninguna posibilidad de excluir la aplicación de la doctrina de los frutos del árbol envenenado, como la fuente independiente de lo pruebo o el descubrimiento inevitable de lo mismo, ni otro excepción que excluya lo aplicación de la reglo de lo exclusión de lo pruebo ilícito, según la cual, la prueba obtenida directamente de uno violación constitucional debe ser excluido del proceso así como toda aquella que se derive en formo indirecta de la prueba ilícito, que en este proceso es lo totalidad'.

(voto del Sr Juez Camacho página 1943 de la sentencia, segunda parte)" "4) Que subsidiariamente a la tercera petitoria se me absuelva o sobresea por las razones aducidas en la sección Tercera A en razón de que la única prueba en mi contra es originada en un criterio de oportunidad ilegítimo Que así se acoja lo resuelto por el Sr Juez Don Jorge Camacho sobre el criterio de oportunidad que en lo que a mí concierne concluye: 'Así las cosas, por los razones expuestas en relación al criterio de oportunidad, se deben también absolver de todo pena y responsabilidad al coimputado [Nombre012] por su participación como instigador del delito de corrupción agravada en la modalidad de cohecho impropio en relación con [Nombre026].' (Voto del Sr Juez Jorge Camacho, páginas 1.996,1997 de la sentencia, segunda parte)." "5) Que subsidiariamente a la petitoria cuatro se declare la anulación de la sentencia en mi contra y se me absuelva en razón de que aún si se aceptara como legal la declaración de [Nombre026], que reiteramos NO ES PRUEBA y el criterio de oportunidad es ilegítimo, el único sustento del voto de mayoría en mi contra sería esa declaración de [Nombre026], y hay ausencia total de ninguna prueba que le de sustento a su declaración, tal y como se ha explicado y con base en las violaciones legales reclamadas" "6) Que subsidiariamente a la petitoria cinco se anule la condena dictada en mi contra en la sentencia recurrida y se declare mi inocencia ya que [Nombre026] reconoce como ante la presunta propuesta de ALCATEL, él la 'ACEPTA EN PRlNClPlO', de manera que en ese mismo lugar, Restaurante [...], el delito ya se habría CONSUMADO, esto antes de que supuestamente se hubiera reunido conmigo en mi casa, lo que repito no se dio.

Que de conformidad con ello se declare mi absolutoria COMO SUPUESTO INSTIGADOR, dado que NO SE PUEDE INSTIGAR a quien ya está DETERMINADO." "7) Que subsidiariamente si no se considerase procedente declarar mi absolutoria, se anule totalmente el juicio y se ordene su reposición excluyendo todas las pruebas ilegales, los hechos erróneamente tenidos por demostrados y los razonamientos jurídicos equivocados." "8) Que se acoja el voto de minoría del Señor juez Camacho y se acojan las excepciones de prescripción a mi favor y en caso de alguna recalificación del delito, se me aplique esa prescripción." "9) Que subsidiariamente y si no se aceptan ninguna de las conclusiones del Juez Camacho sobre la prueba 588 y el criterio de oportunidad, se determine que la declaración del imputado confeso [Nombre026] no determina ningún hecho probado que signifique mi participación como instigador ni de ninguna otra forma en el delito de [Nombre026] de Corrupción agravada en la modalidad de Cohecho lmpropio.

Y se me aplique la prescripción." "10) Que subsidiariamente a la petitoria número nueve se proceda a adecuar la pena impuesta en mi contra, fijada ilegalmente en el extremo mayor de la norma punitiva, cuando ha resultado evidente que no solo la supuesta conducta a mí atribuida resulta mucho menos reprochable que la del autor ([Nombre026]), a quién se le ha concedido impunidad absoluta, sino que resulta atípica la atribución de la figura penal de la instigación cuando es evidente que [Nombre026] desde el momento mismo del supuesto ofrecimiento afirma que "aceptó" el mismo y que solo después, pensando luego, en su casa, las implicaciones del ofrecimiento que había aceptado, decide consultarlo al suscrito, por si se complicaba, cosa que nunca ocurrió, de modo tal que si [Nombre026] es impune, yo no lo determine y menos lo ayude, resulta desproporcionada la pena impuesta, reitero en su extremo mayor. Que en caso para mi inconcebible de que se me condene, que se haga en el extremo menor de la pena y se me conceda el beneficio de su ejecución condicional.

Finalmente, siempre con relación al Dr. [Nombre012], es necesario agregar que a folios 173372 y 173373 del tomo XL, hay una carta suya dirigida al Presidente de la Corte Suprema de Justicia, Dr. Luis Paulino Mora Mora, en la que el recurrente le solicita que le garantice que será juzgado por el juez natural, mediante un sorteo público.

II. SE RESUELVE EL RECURSO DEL DR

[Nombre012].- El día 15 de octubre de 2004, siendo Secretario General de la Organización de Estados Americanos y gozando de las prerrogativas inherentes a ese alto cargo, el Dr. [Nombre012], por su propia voluntad, regresó a nuestro país para someterse al “juez natural”, para hacer frente a los hechos de esta causa penal por los cuales estaba siendo investigado, para colaborar con la averiguación de la verdad real y procurar de esa forma que pudiera quedar claro que él es inocente, según él mismo lo (cfr. registro audiovisual en DVD, archivos c000012110515000.vgz y c0000121105160000.vgz, desde 15:47:00 hasta 16:47:29). Durante este proceso, don [Nombre012] rechazó todos los cargos que se le hicieron, sostuvo que no son ciertos los hechos que le imputa el Ministerio Público. En el ejercicio de su derecho de defensa material -que a todo ser humano se debe reconocer y garantizar con igualdad-, don [Nombre012] explicó que el dinero que recibió de [Nombre026] tenía relación con un simple préstamo que aquel le hizo y que él ya le canceló mediante depósitos judiciales.

Luego de haber examinado en forma integral la sentencia condenatoria que se dictó en su contra, resulta claro para los jueces suscriptores de este voto, que el Ministerio Público no pudo demostrar que el Dr. [Nombre012] hubiera realizado la conducta que le atribuyó en la acusación, ni tampoco que fuera falsa la defensa que él dio para justificar su conducta. La sentencia condenatoria dictada por la mayoría del tribunal de juicio es insostenible desde el punto de vista formal y sustancial, por su notoria falta de fundamento y de acción penal. Nuestra actual Constitución Política, que rige desde el año 1949, garantiza que a nadie se hará sufrir una sanción penal si no es mediante la necesaria demostración de su culpabilidad (artículo 39 de la Constitución Política). De conformidad con las leyes de la República, al no haberse demostrado la culpabilidad del Dr. [Nombre012], al no haberse desvirtuado su defensa material, permanece intacta la presunción de inocencia que a todo acusado de delito le garantizan nuestra Constitución Política y los instrumentos internacionales en materia de derechos humanos, particularmente los artículos 11 inciso 1° de la Declaración Universal de Derechos Humanos (Asamblea General de la ONU del 10 de diciembre de 1948); 26 párrafo primero de la Declaración Americana de Derechos y Deberes del Hombre (Novena Conferencia Internacional Americana de 5 de mayo de 1948); 14 inciso 1° del Pacto Internacional de Derechos Civiles y Políticos (aprobado por Ley N° 4229 de 11 de diciembre de 1968); y 8 inciso 2° de la Convención Americana sobre Derechos Humanos (conocida como Pacto de San José, aprobada por Ley N° 4534 del 23 de febrero de 1970), normas que son de aplicación inmediata y directa a este asunto y que incluso tienen autoridad superior a las leyes, según el artículo 7 de nuestra Constitución Política.

Aparte de alegar su inocencia don [Nombre012], también en el legítimo ejercicio de su defensa material, interpuso personalmente los recursos contra la sentencia condenatoria que se describen en el Considerando anterior (I) de esta resolución, en los que ha denunciado una gran cantidad de errores de forma y de fondo, unos relativos a la sentencia, otros a etapas anteriores del proceso. De todo el conjunto de temas propuestos por el Dr. [Nombre012] para el examen integral de la sentencia condenatoria dictada por la mayoría del tribunal de juicio, se aprecia que ciertamente hay algunos defectos que determinan la nulidad de ese fallo de mayoría (tanto si se consideran esos defectos en forma independiente o conjunta). Estos defectos que por sí solos implican la nulidad de todo lo resuelto se refieren, a la determinación del hecho tenido por acreditado (A); que la acción penal se extinguió por haber operado la prescripción (B), como se explica a continuación.

• A)Defectos en el proceso de determinación del hecho tenido por acreditado: En primer lugar, se observan errores de forma en el proceso seguido para la determinación del hecho tenido por acreditado, porque este se derivó esencialmente de prueba ilegítima y porque el análisis y valoración de la prueba infringió las reglas de la sana crítica, por lo que la sentencia deviene carente de fundamento que la justifique razonablemente, defecto que infringe el artículo 39 de la Constitución Política, según el cual toda condena penal está condicionada a una necesaria demostración de culpabilidad. A.1.- Prueba espuria. La prueba que ha sido ilícitamente obtenida no puede ser lícitamente incorporada al proceso, según la regla dispuesta en el párrafo primero del artículo 181 del Código Procesal Penal, que indica claramente: “Los elementos de prueba sólo tendrán valor si han sido obtenidos por un medio lícito e incorporados al procedimiento conforme a las disposiciones de este Código”.

Según el artículo 180 de ese mismo texto legal, “El Ministerio Público y los tribunales tienen el deber de procurar por sí la averiguación de la verdad mediante los medios de prueba permitidos...”, lo cual debe entenderse a la luz del principio general que enuncia el artículo 175 de ese mismo cuerpo legal en materia de actividad procesal defectuosa:

«No podrán ser valorados para fundar una decisión judicial ni utilizados como presupuestos de ella, los actos cumplidos con inobservancia de las formas y condiciones previstas en la Constitución, en el Derecho Internacional o Comunitario vigentes en Costa Rica y en este Código salvo que el defecto haya sido saneado, de acuerdo con las normas que regulan la corrección de las actuaciones judiciales» Nuestra Sala Constitucional desarrolló con amplitud el derecho general a la legalidad, indicando que:

«Aunque el principio de legalidad y el correspondiente derecho de todas las personas a la legalidad -y, desde luego, por encima de todo, a la legalidad y legitimidad constitucionales- parecen referirse más a problemas de fondo que procesales, tienen sin embargo, repercusiones importantes en el debido proceso, aun en su sentido estrictamente procesal.» «En los términos más generales, el principio de legalidad en el estado de derecho postula una forma especial de vinculación de las autoridades e instituciones públicas al ordenamiento jurídico, a partir de su definición básica según la cual toda autoridad o institución pública lo es y solamente puede actuar en la medida en que se encuentre apoderada para hacerlo por el mismo ordenamiento, y normalmente a texto expreso -para las autoridades e instituciones públicas sólo está permitido lo que esté constitucional y legalmente autorizado en forma expresa, y todo lo que no les esté autorizado les está vedado-; así como sus dos corolarios más importantes, todavía dentro de un orden general: el principio de regulación mínima, que tiene especiales exigencias en materia procesal, y el de reserva de ley, que en este campos es casi absoluto.

En nuestra Constitución Política, el principio general de legalidad está consagrado en el artículo 11, y resulta, además, del contexto de éste con el 28, que recoge el principio general de libertad -para las personas privadas- y garantiza la reserva de ley para regularla, con el 121, especialmente en cuanto atribuye a la Asamblea Legislativa competencias exclusivas para legislar (incisos 1, 4 y 17), para crear tribunales de justicia y otros organismos públicos (incisos 19 y 20) y para disponer de la recaudación, destino y uso de los fondos públicos (incisos 11, 13 y 15); potestades que no pueden delegarse ni, por ende, compartirse con ningún otro poder, órgano o entidad (artículo 9), y que generan consecuencias aun más explícitas como las que se recogen en la Ley General de la Administración Pública, principalmente en sus artículos 5 y 7 -que definen las jerarquías normativas-, 11 -que consagra el principio de legalidad y su corolario de regulación mínima-, 19 y 59.1 -que reafirman el principio de reserva de la ley para régimen de los derechos fundamentales y para la creación de competencias públicas de efecto externo-.

Téngase presente, asimismo que en Costa Rica tal reserva de ley está confinada a la ley formal emanada del órgano legislativo, por estar prohibida constitucionalmente toda delegación entre los poderes públicos (art. 9), haciendo así impensables los actos con valor de ley, por lo menos en situaciones de normalidad.» «Es en virtud de la presencia de todos esos elementos del principio de legalidad, que prácticamente toda la materia procesal está reservada a la ley formal, es decir, a normas emanadas del órgano legislativo y por los procedimientos de formación de las leyes, con exclusión total de reglamentos autónomos y casi total de los propios reglamentos ejecutivos de las leyes; así como que la ley procesal debe ser suficiente para disciplinar el ejercicio de la función jurisdiccional y de la actividad de las partes ante ella, en forma tal que no queden lagunas importantes por llenar reglamentaria ni subjetivamente; y, por último, que las exigencias de la ley procesal han de tener garantizada eficacia, material y formal, al punto de que en esta materia las violaciones a la mera legalidad se convierten, por virtud del principio, automáticamente en violaciones al debido proceso, por ende de rango constitucional.» (el subrayado es suplido, Sala Constitucional, N° 1739-92 de las 11:45 horas del 1 de julio de 1992).

Sin embargo, los hechos que la mayoría del tribunal de juicio ha tenido por acreditados se derivaron esencialmente de dos fuentes inidóneas: por una parte se derivó de prueba ilegítima -prueba que fue obtenida ilícitamente-, concretamente de la llamada “prueba 588” (documental). Por otra parte, los hechos también se derivaron del testimonio del imputado [Nombre026], pero este fue erróneamente analizado y valorado por el tribunal de juicio. La errónea consideración de esas dos fuentes de conocimiento invalidan la determinación del hecho que se tuvo por acreditado (pues por otra parte no existen otros elementos de prueba distintos, legítimos e idóneos, para derivar la existencia del hecho acusado), como se explica a continuación. a.- La ilicitud de la “prueba 588” que dio origen al caso denominado «Caja-Fischel» y al presente asunto. La prueba documental N° 588 es una copia certificada de la Asistencia Judicial de la República de Panamá, que se obtuvo a solicitud de nuestra Procuraduría General de la República ante el Director Nacional de Ejecución de Tratados de Asistencia Legal Mutua y Cooperación Internacional del Ministerio de Gobierno y Justicia de la República de Panamá.

Contiene información bancaria de la sociedad panameña Marchwood Holdings y fue obtenida sin que mediara orden judicial (por lo que se encuentra en la misma situación que otras pruebas que fueron traídas al proceso en idénticas circunstancias y que el propio tribunal de juicio confirmó que se trata de prueba ilícita, mediante resolución de las 8:00 horas del 14 de mayo de 2010, cfr. Tomo XXVII, folios 13352 a 13408 vuelto, rechazando la solicitud del Ministerio Público para que se declarara que esas otras pruebas eran lícitas y para que fueran admitidas para ser evacuadas en el debate, tras haber sido excluidas por el juez de la etapa intermedia). La prueba N° 588 es esencial en este asunto porque fue la que le permitió al Ministerio Público enterarse de la existencia de Servicios Notariales Q.C.S.A. y con base en ella solicitar el levantamiento de secreto bancario en relación con dicha sociedad en el Sistema Bancario Nacional, que involucra toda la prueba obtenida en relación a Servicios Notariales Q.C.S.A. a través del Banco Cuscatlán de Costa Rica, de Cuscatlán International Bank o bien del Grupo Cuscatlán y en general toda la actividad probatoria que tiene su origen en la violación constitucional relacionada con la prueba N° 588.

La defensa de los imputados coincide en que no existe una fuente independiente anterior a la violación constitucional a partir de la cual se pudiera haber obtenido la prueba y que la misma tampoco podría haber sido descubierta en forma inevitable, por lo que no existe posibilidad de excepcionar la regla de exclusión de la prueba ilícita. En cambio el Ministerio Público considera que la prueba N° 588 es lícita a partir del consentimiento de [Nombre032] para su uso. La mayoría del tribunal de juicio consideró que la prueba 588 es lícita y dedica una gran parte del Considerando II de la sentencia a justificar ese criterio (en el acápite que titula «Oposiciones a la prueba N° 588 y toda la documentación bancaria obtenida del caso ‘Caja-Fischel’ traída a este proceso y derivada de la citada prueba»), advirtiendo que en todo caso los mismos datos se derivan de la declaración de [Nombre032] (a quien considera el único titular del derecho a la privacidad de esa información bancaria, que ha consentido en su uso), esto así sobre la base de criterios jurisprudenciales de la Corte Suprema de Estados Unidos de América (cfr. sentencia, páginas 889 a 952).

Por el contrario, el voto salvado del juez Camacho Morales inicia precisamente con el análisis y valoración de la prueba 588, la que considera que se obtuvo de forma ilícita y no puede ser utilizada para fundamentar la sentencia, porque fue obtenida sin la orden fundada de un juez (cfr. sentencia, voto salvado, páginas 1903 a 1943). Explica que el consentimiento del derechohabiente debe ser anterior al hecho, según la doctrina del Profesor Francisco Castillo Gonzáles y la jurisprudencia de la Sala Tercera (votos N° 111 de las 8:40 horas del 26 de marzo de 1993 y N° 604-2008 de las 12:10 horas del 23 de mayo de 2008) y del Tribunal de Casación Penal (N° 308 de las 17:00 horas del 7 de abril de 2008), y advierte que a pesar de que algún voto de la misma Sala parece contradecir esta tesis y que el Ministerio Público invoca a su favor, no se trata de un caso que refleje fielmente el criterio dominante (concretamente el voto N° 232 de las 17:00 horas del 11 de marzo de 2011, que fue dictada por magistrados suplentes). También precisa que no es posible el saneamiento de ese defecto mediante el posterior consentimiento de [Nombre032]:

«En el presente asunto es evidente que el consentimiento de [Nombre032] es posterior, y no anterior a la afectación del derecho constitucional a la intimidad, puesto que aproximadamente seis años después de haberse obtenido la prueba en forma ilícita, por no mediar orden de juez, según lo resolvió este Tribunal en resolución de las 8 horas del 14 de marzo de 2010, el Ministerio Público, conociendo el criterio de este Tribunal, acudió ante el supuesto representante legal de la sociedad ofendida (Marchwood Holding), el señor [Nombre032] y le pidió que consintiera que la prueba obtenida ilegalmente en Panamá, que atañe a su representada, pudiera ser utilizada en este proceso y que convalidara con su consentimiento, la obtención que se hizo de la misma y el uso que se le dio en etapas del proceso anteriores al debate, a lo cual accede el señor [Nombre032] suscribiendo el documento incorporado como prueba documental N° 759, con fecha 17 de mayo de 2010, tres días después de la mencionada resolución de este Tribunal.

Dicho consentimiento no reúne los requisitos mínimos para que opere como causa de justificación y elimine el carácter delictivo de la intervención del Ministerio Público. De admitirse la citada prueba, se estaría permitiendo que el Estado se aproveche de actuaciones de sus funcionarios -que podrían ser delictivas- para juzgar y condenar penalmente a los ciudadanos, con lo cual pierde toda legitimidad ética para imponer una sanción.» (Sentencia, página 1923).

Este tema lo enlaza el juez Camacho Morales con la jurisprudencia de la Sala Constitucional sobre los principios de amplitud de la prueba y de legitimidad de la prueba:

«a) El principio de la amplitud de la prueba: Supuesto que la finalidad del procedimiento es ante todo la averiguación real de los hechos, tanto el Ministerio Público como el juez tienen el deber de investigar esa verdad objetiva y diligentemente, sin desdeñar ningún medio legítimo de prueba, sobre todo si ofrecida por la defensa no resulta manifiestamente impertinente, e inclusive ordenando para mejor proveer la que sea necesaria, aun si ofrecida irregular o extemporáneamente. En materia penal todo se puede probar y por cualquier medio legítimo, lo cual implica, desde luego, la prohibición absoluta de valerse de medios probatorios ilegítimos y de darles a éstos, si de hecho los hubiera, alguna trascendencia, formal o material.» «b) El principio de legitimidad de la prueba: Lo último dicho plantea, por cierto, un tema difícil, que aparece en el meollo del caso motivo de esta consulta, a saber, de la prueba ilegítima, su tratamiento formal y su valoración, tema sobre el cual la doctrina y la jurisprudencia penales y constitucionales no alcanzan todavía consenso.

Sin embargo, ya esta Sala ha venido adoptando una posición, si no unánime, al menos constante, sobre la base de la supresión hipotética de la prueba espuria, en el sentido de que, amén de negarle todo valor probatorio en sí -sobre lo cual no parecer haber ninguna discusión-, se suprima del proceso, es decir, se suponga que no hubiera existido y, por ende, se invaliden también otras pruebas, no ilegítimas per se, en cuanto que hayan sido obtenidas por su medio. Las diferencias entre la mayoría y la minoría de la Sala han sido más bien del matiz y del grado atribuidos al dicho principio de supresión hipotética, por lo que puede decirse que éste es el criterio respaldado por el valor vincular erga omnes de los precedentes y jurisprudencia de la Jurisdicción Constitucional, ordenado por el artículo 13 de su Ley -en este sentido, ver, por todas, por ejemplo las sentencias Nos. 802-90, 1298-90, 1345-90, 1417-90, 1855-90, 280-91, 556-91, 701-91, 885-91, 1409-91 y 1578-91, entre otras muchas-.» (el subrayado no es del original, Sala Constitucional, N° 1739-92 de las 11:45 horas del 1° de julio de 1992).

«Esta Sala en sus pronunciamientos también ha señalado, que a las pruebas condenatorias, no se les puede asignar esa única finalidad [evidenciar con certeza la culpabilidad del imputado], sino también la de ser garantía de realización de un proceso justo, eliminando la arbitrariedad judicial, pues el derecho fundamental de presunción de inocencia requiere para ser desvirtuado de una actividad probatoria obtenida respetando los derechos fundamentales» (Sala Constitucional, N° 2001-7341 de las 14:38 horas del 12 de setiembre de 2001).

«Dentro de las diferentes interpretaciones sobre la ilicitud o no de una prueba, tenemos la teoría de la prueba espuria. Teoría de la prueba espuria o teoría de los frutos del árbol envenado (fruit of the poissones tree doctrine), que supone que cada vez que un medio probatorio originado de una violación constitucional aporte elementos de culpabilidad para el acusado, es nulo el acto productor de la prueba y todo medio probatorio que de él derive. En ese mismo orden de ideas, nos encontramos en la posición relativa, denominada de la ‘fuente independiente’, según la cual, si la prueba deriva de un acto violatorio de las garantías constitucionales, pero también se originó en otro elemento autónomo recabado durante la investigación y anterior a la violación constitucional, la prueba sigue siendo válida, porque esa prueba se desprendió de otro elemento, y no necesariamente del acto violatorio de la Constitución.

Esta Sala, en el voto 701-91, ya expresó: ‘...la tesis de la mayoría de la Sala en relación a la validez de la prueba relacionada con prueba ilegítima, puede sintetizarse diciendo que aquella conserva su validez en tanto no tenga como origen la ilegítima’, entendiendo entonces que debe estudiarse la cadena causal productora de la prueba, siendo espuria y nula la que provenga exclusivamente de una violación a la Constitución» (el subrayado no es del original, Sala Constitucional, N° 02529-94, citada en la N° 2005-04707 de las 15:03 horas del 27 de abril de 2005).

Y es de esta manera que el juez Camacho Morales concluye en que no solo es nula la prueba n° 588 sino también toda la demás prueba que se origina o deriva exclusivamente de aquella y que, aplicando el método de supresión hipotética de la prueba ilícita, se debe tener por indemostrado el hecho acusado, pues no existen otros elementos de prueba independientes o autónomos y anteriores a la violación de la Constitución Política. El juez Camacho Morales explica que la misma acusación del Ministerio Público corrobora que es la prueba obtenida en Panamá, en relación a Marchwood Holding, la que permite el descubrimiento de Servicios Notariales Q.C.S.A. (cfr. hecho acusado n° 190 en la página 45), y agrega:

«En el anterior hecho [n° 190, página 45] queda claro, y así lo afirma el propio Ministerio Público, que fue la prueba obtenida en Panamá la que llevó al descubrimiento de Servicios Notariales Q.C.S.A. y que fue dicha prueba el fundamento de las noticias publicadas por los medios de comunicación en relación con Servicios Notariales Q.C.S.A., prueba que es precisamente la que se declara ilícita en este voto de mayoría, evidenciándose además, como existía un traslado de información del Ministerio Público hacia los medios de comunicación en flagrante violación del deber de privacidad previsto en el numeral 295 del Código Procesal Penal y 22 inciso 3 de la Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones [Ley N° 7425], conducta que podría configurar el delito de divulgación previsto en el numeral 24 de la misma Ley» (Sentencia, página 1939).

También señala el juez Camacho Morales que a partir del dicho de [Nombre032] se puede establecer con claridad que de su parte, en relación con su supuesta representada Marchwood Holding, nunca hubo un consentimiento previo y expreso para la obtención de la prueba documental N° 588, sino que dicha autorización se produce varios años después de que la prueba fue obtenida en Panamá (cfr. Sentencia, páginas 1939 a 1940). Luego concluye que:

«…no es posible tener por demostrado hecho alguno de la acusación, porque toda la prueba recabada en el proceso es prueba ilícita, por derivar la totalidad de la investigación de una, o más bien, de varias violaciones constitucionales en la obtención de la prueba que orientó desde su génesis la investigación y al no existir ninguna posibilidad de excluir la aplicación de la doctrina de los frutos del árbol envenado, como la fuente independiente de la prueba o el descubrimiento inevitable de la misma, ni otra excepción que excluya la aplicación de la regla de la exclusión de la prueba ilícita, según la cual, la prueba obtenida directamente de una violación constitucional debe ser excluida del proceso así como toda aquella que se derive en forma indirecta de la prueba ilícita, que en este proceso es la totalidad.» «Lo anterior, es razón suficiente para absolver de toda pena y responsabilidad a todos los imputados, ante la imposibilidad de establecer, con prueba lícita, ligamen alguno de los dineros, que según la acusación recibieron con Servicios Notariales Q.C. y con Alcatel Cit.» La sentencia impugnada se dictó el día 27 de abril de 2011 y pocos días después la Sala Tercera de la Corte Suprema de Justicia dictó la sentencia que resolvió los recursos de casación que habían sido interpuestos en el caso conocido como «Caja-Fischel» (expediente judicial N° 04-005356-0042-PE).

Por decisión de mayoría, los magistrados Ramírez, Pereira y Chinchilla declararon la nulidad de toda la prueba recabada en Panamá por medio del Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (T.A.L.M.), así como todos los elementos probatorios que de ésta dependen directamente (cfr. Sala Tercera, No. 499 de 11:45 h. del 11 de mayo de 2011, folios 14004 a 14014, 14042 a 14043 y 14541 del Víquez), lo que a nuestro entender resuelve en definitiva la discusión sobre la legitimidad de esta prueba documental, en el mismo sentido que lo expuso el juez Camacho Morales y de la misma forma en que lo considera esta Cámara de apelación. Indica la Sala Tercera:

«Respecto al alegato contra la validez de la prueba de Panamá: Por mayoría conformada por los magistrados Ramírez Quirós, Pereira Villalobos y Chinchilla Sandí se declara con lugar este extremo del reclamo, formulado también mediante el segundo motivo de apelación, decretándose la nulidad de la prueba recabada en Panamá por medio del Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (T.A.L.M.) y todos los elementos probatorios que de ésta dependen directamente. Para analizar el reclamo de los recurrentes, hemos en primer lugar, remontarnos a los orígenes de la reforma del Código Procesal Penal de 1996, el cual está inspirado en el respeto a los derechos del hombre, sea éste imputado o víctima. Respecto del imputado, que es el punto discutido, se establece como fundamento el principio de Inocencia, del que deriva, entre otros, la necesidad de juicio previo y que el proceso sea el que el Código reglamenta, así lo determinan también La Declaración Universal de Derechos Humanos, artículo 11, El Pacto Internacional de Derechos Civiles y Políticos, artículo 14 y La Convención Americana de Derechos Humanos, artículo 8, inciso 2, tratados que por referirse todos a los derechos fundamentales del hombre, están y deben ser analizados, con primacía sobre cualquier tratado de asistencia legal mutua entre los países, así artículo 2 Tratado a Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá.

Volviendo a los antecedentes del Código Procesal Penal que nos rige en la actualidad, uno de los aspectos fundamentales que retoma, es el respeto al Debido Proceso y, pone especial énfasis en la Inviolabilidad de la Defensa (artículo 39 de la Constitución Política), por ello hemos afirmado, con gran acierto que, la reforma en mención, no es más que la constitucionalización del Derecho Procesal Penal. Bajo esta concepción estimó el legislador que, la investigación de las causas penales, debería estar direccionada por el Ministerio Público, precisamente por un mayor control en la forma de allegar la prueba al proceso, en cumplimiento estricto de la Constitución y la ley; en otras palabras, el Ministerio Público, que tiene a su cargo la investigación del crimen, debe dirigir la actuación de los oficiales de investigación, a efecto de hacer llegar, mediante todos los medios lícitos a su alcance, los elementos probatorios al proceso; lo anterior implica la prohibición absoluta de valerse de medios de prueba ilegítimos que, consecuentemente el Juez no podrá darles alguna trascendencia formal o material, porque el ordenamiento procesal, bajo ninguna circunstancia, tolera el sacrifico de la garantías constitucionales, que protegen al ciudadano, a favor de la búsqueda de la verdad en el proceso penal, ( en este sentido el Organismo de Investigación Judicial, el Ministerio Público y el Juez deben apegarse estrictamente a la Constitución, Tratados Internacionales sobre Derechos Humanos y a la Ley) porque la legitimidad de los actos y su licitud, se convierten en el único criterio válido para ser tomado en consideración por el juez en la resolución de un caso en concreto, lo contrario significa la obligación del superior jerárquico de declarar, aún de oficio, la ineficacia del acto procesal.

En el caso concreto, los elementos probatorios obtenidos en la República de Panamá, si bien es cierto, conforme a las leyes internas de ese país, en las cuales, por el rango constitucional del Ministerio Público, anterior a la reforma del Código Procesal Penal de Panamá, del año dos mil ocho, le confería la potestad de levantar el secreto bancario, sin autorización jurisdiccional, en el proceso de una investigación en ese país y por lo tanto, tal como lo indica el fallo recurrido, en el procedimiento realizado en aquel país, no existe violación al derecho interno Panameño, de donde para aquel ordenamiento, la prueba se obtiene legalmente; existe un grave defecto procesal de inicio, que se da en Costa Rica, en cuanto a la aplicación del Código Procesal Penal que, exige al Ministerio Público efectuar la solicitud de levantamiento del secreto bancario al Juez de Garantías, para gestionar ante la Autoridad Central (conforme al Tratado de Asistencia Legal Mutua) la asistencia a fin de traer de aquel país, prueba que, implica violar el ámbito de intimidad de sus cuentas y correspondencia privada; este defecto procesal absoluto, en nuestro criterio, ha sido soslayado por todas las autoridades intervinientes en el proceso número 04-005356-042-PE, aduciendo que, como en Panamá el Ministerio Público está facultado para realizar el acto, en nuestro país el Ministerio Público puede arrogarse ese derecho de solicitar él directamente a la Autoridad Central (Procuraduría General de la República) la realización de la diligencia, sin que sea necesaria la valoración del Juez de Garantías; interpretación que, en nuestro criterio, de modo alguno puede ser avalada, por quienes hemos sido nombrados, como última instancia a la que las partes pueden recurrir en satisfacción y resguardo de los derechos fundamentales de sus patrocinados.

No puede ser válido en nuestro Estado Democrático de Derecho que, en aras de un cumplimiento ágil con el juzgamiento de personas acusadas por la presunta comisión de hechos delictivos, sin acepción de la persona de que se trate, se atropellen (por quien en ese momento determinado tuvieron la dirección funcional del proceso en el Ministerio Público) en forma arbitraria e ilegítima, con errada interpretación de poderes ilimitados; los derechos que le asisten a las personas imputadas en la comisión de un delito, desde el momento mismo en que se les tiene como sospechosas de la comisión de ese hecho delictivo. Es claro que, nuestro sistema democrático en su Ordenamiento Jurídico, ha optado por la sabia decisión de dejar en manos del órgano jurisdiccional competente, velar por la tutela de los derechos fundamentales (entre los que se encuentran el derecho a la intimidad, el secreto de las comunicaciones e inviolabilidad de los documentos privados), por ello es que autoriza, bajo circunstancias excepcionales y previamente establecidas, los casos en que los mismos pueden ser restringidos, concretamente para el conocimiento de asuntos sometidos a los Tribunales de Justicia, en los cuales puede ordenar el juez el levantamiento de ese secreto.

En la presente causa se requería de esa valoración jurisdiccional para solicitarle a la Autoridad Central, conforme al tratado de cita, que le diere el trámite correspondiente a la solicitud de asistencia que requería el Ministerio Público, para hacer llegar prueba documental de los bancos panameños a la investigación; esto es así porque, ha de ser el juez quien pondere la necesidad, utilidad, pertinencia y proporcionalidad de la solicitud que le hace el órgano encargado de la investigación. Aquí es importante acotar que, es errada la interpretación que se ha dado en este proceso, por el Ministerio Público, órgano que a nuestro entender, es el primero que debe tener clara su función y sus potestades de investigación, hasta donde se las confiere la Constitución y la Ley vigente, para no efectuar una actuación que, debía conocer, dejaba de lado los límites que el ordenamiento le impone al solicitar él directamente a la Procuraduría General de la República, que diera el trámite correspondiente al diligenciamiento de una solicitud de asistencia a Panamá, la cual debió ser previamente autorizada por el Juez de Garantías, toda vez que implicaba violentar derechos fundamentales de personas sometidas a proceso en nuestro país y que, como es de conocimiento de todos y cada uno de los operadores de justicia en Costa Rica, la legislación ordinaria exige que: a) la orden esté debidamente fundamentada. b) De ser posible, individualizar los documentos sobre los que se va a ejecutar la decisión, el nombre de que quien los tenga en su poder y lugar donde se hayan. c) Tener como presupuesto una actividad delictiva, con determinación de indicio comprobado respecto de su comisión.

Todos estos aspectos requieren la ponderación previa sobre la necesidad, idoneidad y proporcionalidad de la solicitud que debió poner en conocimiento de la autoridad jurisdiccional, el Ministerio Público; sería un craso error, concluir, como lo hace el a quo, y avala el criterio de minoría de esta Sala, que ello implica dar una orden a las autoridades panameñas; muy por el contrario, constituye el aval de la autoridad jurisdiccional de Costa Rica para que la Autoridad Central de nuestro país, conforme al tratado de repetida cita, procediera con lo estipulado ante la autoridad competente de Panamá. Lo anterior no es un mero formalismo, constituye el acto procesal que legitima, conforme al orden interno, la intromisión dispuesta en la esfera privada de una persona, porque no es función, ni facultad del Fiscal General, ni de los y las representantes del Ministerio Público, requerir e imponerse de información confidencial de las personas, sin previa autorización del Juez garante del respeto a los derechos fundamentales de los ciudadanos sometidos a proceso.

Así se concluye de lo estipulado en los artículos 24 de la Constitución Política, 12 de la Declaración Universal sobre Derechos Humanos, 11, incisos 2 y 3 de la Convención Americana de Derechos Humanos y 17 del Pacto Internacional sobre Derechos Civiles y Políticos, todos recogidos en los artículos 2 y 3 de la Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de la Comunicaciones, Nº 7425 ( ley que incluso sanciona penalmente su incumplimiento) y 107 de la Ley Orgánica del Poder Judicial. La facultad que establece el Código Procesal Penal, en sus artículos 226 y 290 párrafo final, al Ministerio Público para requerir informes a personas particulares o entidades públicas, de acuerdo a lo estipulado, lo es en el tanto no se trate de información privada, protegida por el artículo 24 de la Constitución Política, lo contrario, conforme al párrafo segundo del artículo 181 del CPP, implica violación al Debido Proceso, por vulneración del derecho fundamental a la privacidad de documentos privados.

El Tratado de Asistencia Legal Mutua, tiene como fin fortalecer y facilitar la cooperación de los órganos administradores de justicia de la región, a través de un instrumento que permita la asistencia en los asuntos penales pero, es claro que se debe dar con pleno respeto de la legislación interna de cada Estado miembro, lo que se sustituye es el engorroso trámite consular; para agilizar canales de comunicación, de modo alguno su contenido puede tener repercusión en el sistema de garantías aplicables en el país, tan es así que, en su preámbulo establece expresamente que, esa asistencia se da con pleno respeto a la legislación interna de cada Estado. Como se menciona al inicio del presente voto, la posibilidad de agilizar procedimientos no se puede convertir en una carta abierta a la arbitrariedad, prepotencia e irrespeto de las garantías constitucionales y al orden interno vigente. No es legítimo que, como en el presente caso sucedió, incluso se desplacen hasta otro país, representantes del Ministerio Público, a fin de estar presentes en la recolección de la prueba y no se tome el mínimo tiempo para hacer correctamente la solicitud ante la autoridad jurisdiccional que corresponde, sacrificando con ello prueba esencial para la resolución del caso sometido a conocimiento de los tribunales costarricenses, al tener que decretarse la ineficacia del acto realizado con violación al Debido Proceso y que, además, conlleva tiempo y dinero que también debemos pagar todos los costarricenses.

Ya en ocasiones anteriores esta Sala ha declarado la ineficacia de actuaciones en actos procesales similares en los que el Ministerio Público, en la práctica de los mismos, ha actuado de manera contraria a la ley, con consecuencias muy lamentables para una correcta administración de justicia y en este aspecto, como se señaló al inicio, sin acepción de la persona que esté sometida al proceso, la ley es igual para todos y consecuentemente, no se trata de lograr una condena a ultranza, sino aquélla que resulte de una correcta introducción de prueba al proceso, conforme a la Constitución y la ley vigente en el país y su consecuente valoración, en estricto apego a las reglas de la sana crítica, de tal forma que el ente acusador, deberá ser el primer interesado en presentar un caso al órgano jurisdiccional, no sólo con posibilidad de lograr hacer prevalecer su tesis en el contradictorio del debate, porque posee la prueba suficiente, sino que esa prueba sea eficaz porque en su recopilación ha respetado las garantías constitucionales, que cobijan a la persona sometida a proceso.

En punto a este tema se ha sostenido en la doctrina “…En nuestro medio, siempre ha estado en tela de discusión la estructuración constitucional de las normas procesales. Así por ejemplo, no puede utilizarse la información obtenida con violación de las garantías constitucionales, por ende el artículo 96 del NCPP condiciona la validez del acto al respeto de los derechos fundamentales de la persona, salvo “que favorezca al imputado” (Art 181 NCPP). Se mantiene la corriente doctrinal, que ordena que este tipo de irregularidades no son susceptibles de convalidación de conformidad con el artículo 178 NCPP y deben ser declaradas de oficio por el Juez, siempre que impliquen inobservancia de derechos y garantías no solo en la Constitución, sino en el Derecho Internacional o Comunitario vigente.” (ARMIJO SANCHO, Gilberth, Garantías Constitucionales, Prueba Ilícita y Transición al Nuevo Código Procesal Penal.

Premio Anual. Alberto Brenes Córdoba, página 127). Consecuentes con esta posición, la jurisprudencia nacional se ha inclinado por la doctrina de “los frutos del árbol envenenado” en el sentido de que, la prueba obtenida como resultado de una ilícita, no tiene ningún valor probatorio. Es importante reafirmar que, no obstante el rango supra legal que ostenta el TALM, éste no lo coloca por encima de la Constitución Política, dado que esa condición únicamente la alcanzan los tratados sobre Derechos Humanos, (artículo 48 de la Constitución Política). En conclusión, la obtención de los elementos de prueba que se hicieron llegar al proceso penal seguido contra, [Nombre032], [Nombre037], [Nombre021], [Nombre038], [Nombre039] conocido como [Nombre040] y [Nombre041], mediante las cartas rogatorias a Panamá y sus ampliaciones, sin observancia de las garantías constitucionales y legales que rigen para poder solicitar su obtención conforme al orden interno en Costa Rica, constituyen elementos de prueba espúria, ilegítimamente incorporados al proceso.

Mediante actividad procesal defectuosa de carácter absoluto, se declara su ineficacia, así como la de los demás elementos de prueba que se derivan directamente de ella, concretamente: la prueba documental obtenida por medio de las Cartas Rogatorias a Panamá y sus ampliaciones, la declaración indagatoria de [Nombre032], en lo que se fundamente en la prueba de Panamá; los testimonios de [Nombre042], Fiscal panameña, [Nombre043], asistente de Fiscalía panameña, [Nombre044], Director de la Oficina de Ejecución del Tratado de Asistencia Legal, testigos todos que se refieren a la prueba cuya ineficacia se declara en cuanto al contenido y forma de obtención; el Informe del OIJ, Nº 200- DEF-495-04-06, en lo que a la prueba de Panamá haga alusión; declaración de las peritos del Organismo de Investigación Judicial, [Nombre045] y [Nombre046] en lo que corresponda a la prueba de referencia. Por último procede analizar la convalidación que el a quo efectúa, a toda la prueba que se funda en las cartas rogatorias a Panamá y sus ampliaciones, en la audiencia número 156 del debate, sustentando el Tribunal su decisión en la “autorización” que da el imputado [Nombre032], al rendir su declaración indagatoria; la cual es absolutamente ilegal.

En primer término porque, al ser varios los imputados que interponen la Actividad Procesal Defectuosa, por haber visto afectados sus derechos fundamentales, al no observar el acto procesal, mediante el cual se obtuvo la prueba, el respeto al Debido Proceso; el hecho de que el propio señor [Nombre032], desista de su incidencia por Actividad Procesal Defectuosa, actuación que también realiza su defensa técnica, no puede convalidar un acto que afecta a otros co-imputados en la causa, a quienes se les ha violentado el derecho fundamental de privacidad de sus documentos. La cita que se hace en el voto de minoría, sobre jurisprudencia de esta Sala, en nada corresponde con el tema aquí planteado, porque no existe en aquel caso, lesión a derechos fundamentales de otros implicados y la prueba solamente tenía importancia en acreditar un hecho entre quien lo autoriza y el ofendido. Aunado a lo expuesto, la autorización que releva la necesaria intervención del Juez, sólo es válida en el tanto sea dada en forma previa a la realización del acto procesal, en este sentido ver lo dispuesto en el párrafo primero del artículo 29 de la Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de Comunicaciones, Nº 7425, disposición que se debe armonizar con lo dispuesto en el artículo 24 de la Constitución Política y 1 del Código Procesal Penal.

En un segundo e importantísimo aspecto, el artículo 29 de la Ley especial de cita, expresamente dispone que, la autorización para imponerse de la documentación bancaria, cuando existan varios titulares de la cuenta, debe ser dada por todos sus titulares. Está acreditado en la causa que los titulares de la cuenta [Valor034] del BAC INTERNATIONAL. BANK DE PANAMA, SON [Nombre032] Y [Nombre047], constituye ésta la cuenta principal, pues es la que se abre en Panamá, con el propósito de recibir, según se establece en el fallo que se recurre, los dineros pagados por la empresa Instrumentarium Corp. Medko Medical, dineros que luego son derivados a sus cuentas personales Marchwood Holding, Harcourt Holding, Walka y a la cuenta personal del co-encartado [Nombre037], conforme a la prueba cuya ineficacia se declara en el voto de mayoría. Lo anterior significa que, aunque [Nombre032], tenía la representación, con posibilidad de actuar individualmente, ello no puede válidamente interpretarse, en contraposición con la ley, como lo hace el a quo en la resolución impugnada, porque el artículo 29 de la Ley Nº 7425 del 9 de agosto de 1994, de manera expresa exige la autorización de todos los titulares, y esto es así precisamente porque esa autorización implica la intromisión en el ámbito de intimidad de las personas y en la privacidad de documentos, tutelados en la Constitución Política, de donde la disposición que asuma uno de sus titulares, no puede vulnerar ese derecho sobre los demás.

En consecuencia, la decisión del Tribunal de convalidar la actividad procesal defectuosa que afecta las cartas rogatorias a Panamá y sus ampliaciones, es un acto que no se ajusta a lo dispuesto en la ley, en consecuencia no surte el efecto de convalidar el acto viciado y no afecta en nada lo dicho sobre la declaratoria de ineficacia de toda a prueba proveniente de Panamá.Los magistrados Arroyo Gutiérrez y Víquez Arias salvan el voto.

Si conforme al precedente de la Sala esa prueba documental y sus derivados directos son nulos para aquel asunto, necesariamente también lo son para el presente caso, que es un derivado de aquel. No está de más agregar que desconocer ese precedente de la Sala daría lugar a una contradicción que eventualmente constituiría motivo de casación (artículo 468 inciso a del Código Procesal Penal). Así, pues, son nulas la prueba 588 y todos los elementos probatorios que de esta dependen directamente. Suprimidas estas pruebas documentales, únicamente queda el dicho del imputado colaborador [Nombre026]. b.- Sobre la existencia de una línea paralela e independiente de investigación periodística. Durante la audiencia oral la Fiscalía dijo que aprovecharía la oportunidad para dar "argumentos complementarios a los argumentos planteados en la sentencia para sostener la licitud de esta prueba" (cfr. registro audiovisual c0002121107132843.vgz, desde 13:42:10 hasta 13:42:30) e insistió en que no solo es lícita la prueba n° 588, sino que además hay una línea ininterrumpida, paralela e independiente de investigación periodística, que también puede ser fuente de prueba independiente para la acreditación del hecho que constituye el objeto de este proceso judicial, según jurisprudencia o doctrinas de la Corte Suprema de los estados Unidos de América.

Refuta el criterio expresado por nuestra Sala Tercera en la sentencia N° 2011-499 (caso Caja-Fischel) para sostener que don [Nombre032] sí está legitimado para autorizar que se utilice la prueba 588. Esta cámara no comparte el criterio de la Fiscalía. Como se dijo en el acápite anterior -al cual nos remitimos para evitar reiteraciones innecesarias-, la prueba n° 588 es ilícita, así como todos los elementos probatorios que derivan directamente de ella, según la Constitución Política y las leyes costarricenses, que permiten resolver directamente la cuestión, como lo hizo la Sala Tercera de nuestra Corte Suprema de Justicia. Tampoco es atendible la tesis de que la fundamentación de la sentencia se puede "complementar" por esta vía de impugnación o que el hecho objeto del proceso se puede derivar independientemente de la investigación periodística, esto así por las siguientes razones. En primer lugar porque es a los jueces del tribunal de juicio, no a los fiscales, a quienes compete la potestad de fundamentar la sentencia condenatoria.

La fiscalía no puede complementar o integrar razones para suplir la carencia de fundamento de una resolución judicial que está siendo objeto de impugnación (la sentencia debe bastarse a sí misma en lo que concierne a su fundamentación). En segundo lugar porque en principio no se puede presumir lícita la forma en que los medios de comunicación obtienen información tutelada por el artículo 24 de la Constitución Política, si es que la han obtenido de una supuesta "fuente confidencial" o por medios diferentes a los prescritos por la Constitución Política y las leyes de la República. La información en tal situación acaso podrá ser consignada en sus noticias o dar lugar a nuevas líneas de investigación periodística (incluso como ejercicio legítimo del derecho a la información) y así dar lugar a valiosos debates de interés público, pero definitivamente no puede ser incorporada al proceso penal para fundar una condena, porque existe un límite infranqueable impuesto por el artículo 181 del Código Procesal Penal:

«Los elementos de prueba sólo tendrán valor si han sido obtenidos por un medio lícito e incorporados al procedimiento conforme a las disposiciones de este Código.» «A menos que favorezca al imputado, no podrá utilizarse información obtenida mediante tortura, maltrato, coacción, amenaza, engaño, indebida intromisión en la intimidad del domicilio, la correspondencia, las comunicaciones, los papeles y los archivos privados, ni información obtenida por otro medio que menoscabe la voluntad o viole los derechos fundamentales de las personas» (el subrayado es suplido).

El artículo 24 de la Constitución Política garantiza el derecho a la intimidad, a la libertad y al secreto de las comunicaciones, lo que incluye el secreto bancario. Al respecto señala nuestra Sala Constitucional que:

«En general toda la actividad bancaria que involucre contratos, solicitudes y cualquier otro tipo de relación con particulares -como clientes-, está, por su naturaleza, amparada al secreto bancario.-» «Las operaciones que efectúan los particulares con los bancos -como sujetos de derecho privado- constituyen tanto en su obtención como en la forma y el modo de su constitución y servicio, documentos privados que están amparados a la protección que establece el artículo 24 Constitucional -salvo que por su naturaleza deban constar en documentos públicos o en registros, también públicos, de los cuales, y sin intervención del banco, se podría obtener la información que ellos contengan-, así que el banco no puede suministrarla sino en los casos y en la forma que aquel artículo prevé para ello.» (Sala Constitucional, N° 578-92 de las 10:45 horas del 28 de febrero de 1992).

El artículo 615 del Código de Comercio dispone que:

«Las cuentas corrientes bancarias son inviolables y los bancos solo podrán suministrar información sobre ellas a solicitud o con autorización escrita del dueño, o por orden de autoridad judicial competente. Se exceptúa la intervención que en cumplimiento de sus funciones determinadas por la ley haga la Superintendencia General de Entidades Finanieras, o la Dirección General de Tributación autorizada al efecto.» La «Ley sobre registro, secuestro y examen de documentos privados e intervención de las comunicaciones» (Ley N° 7425 de 9 de agosto de 1994) es la legislación especial que -en cumplimiento del artículo 24 de la Constitución Política- fija en que casos pueden los Tribunales de Justicia ordenar el secuestro, registro o examen de los documentos privados, cuando sea absolutamente indispensable para esclarecer asuntos sometidos a su conocimiento. Desde el punto de vista constitucional y legal, cuando es absolutamente indispensable levantar el secreto bancario para poder esclarecer un asunto sometido a conocimiento de un Tribunal Penal, esa información únicamente puede ser obtenida por los Tribunales de Justicia y necesariamente en la forma en que lo dispone la ley que rige esta materia.

En todo caso, la pretendida línea de investigación periodística ni siquiera es anterior e independiente al acto de asistencia judicial de Panamá que vició la prueba n° 588, pues todas las notas son posteriores o remiten expresamente a la investigación de la fiscalía como fuente de información. A.2.- La declaración del imputado [Nombre026]. La participación que se atribuye a don [Nombre012] la deriva el tribunal del testimonio de [Nombre026]. a.- Consideraciones generales sobre la valoración de la declaración rendida por un “imputado colaborador”. El principio de oportunidad es una excepción al principio de legalidad, según el cual le corresponde al Ministerio Público ejercer la acción penal pública en todos los casos en que sea procedente, con arreglo a las disposiciones de la ley. En este sentido, mediante el principio de legalidad se procura garantizar la seguridad jurídica y la igualdad en la aplicación de la ley.

Pero el artículo 22 CPP regula una lista de excepciones a esa regla, que denomina «criterios de oportunidad». Se trata de casos muy específicos en los que, previa autorización del superior jerárquico, el representante del Ministerio Público puede solicitar que se prescinda, total o parcialmente, de la persecución penal, que se limite a alguna o varias infracciones o a alguna de las personas que participaron en el hecho. De esos casos, nos interesa el que ha sido previsto en el inciso b) del artículo 22 CPP, que dice así:

«Se trate de asuntos de delincuencia organizada, criminalidad violenta, delitos graves o de tramitación compleja y el imputado colabore eficazmente con la investigación, brinde información esencial para evitar que continúe el delito o que se perpetren otros, ayude a esclarecer el hecho investigado u otros conexos o proporcione información útil para probar la participación de otros imputados, siempre que la conducta del colaborador sea menos reprochable que los hechos punibles cuya persecución facilita o cuya continuación evita» A esta hipótesis algunos la llaman «Testigo de la Corona» por motivos de orden histórico (relativos al origen y desarrollo del instituto en el sistema anglosajón, entiéndase testigo del Rey o de la Reina), otros le dicen en forma -más que imprecisa, peyorativa-testigo «arrepentido», «delator» o «soplón». Por ser Costa Rica una República, en la que se respeta la dignidad de las personas (artículos 1 y 33 de la Constitución Política), optamos por referirnos a este sujeto como «imputado colaborador», que tales son los términos en que lo describe el artículo 22 CPP.

Para que se justifique razonablemente la aplicación de esta excepción al principio de legalidad deben obtenerse los resultados señalados en la norma (elevar la eficacia de la investigación de los hechos, evitar que continúe el delito o que se perpetren otros, obtener información útil para probar la participación de otros imputados), pero respetando un juicio de valor, a saber, que la obtención de esos resultados respecto a los hechos punibles cuya persecución facilita (o cuya continuación evita) sea más valiosa que el reproche que cabe hacer al colaborador por su conducta. En otras palabras, que sea más conveniente prescindir parcial o totalmente de la persecución penal contra el imputado colaborador si por medio de su colaboración se logran obtener esos beneficios. La figura en sí ha sido muy criticada porque quiebra principios fundamentales de un Estado de Derecho (al respecto LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4ª ed., San José, Editorial Jurídica Continental, 2009, páginas 110 a 113 y 119 a 124), llegándose a decir que :

«...el reconocer al Ministerio Pública una facultad discrecional (oportunidad sin más u oportunidad reglada) para que el mismo pueda:

• 1)Bien no ejercitar la acción penal, a pesar de que le conste la existencia de un hecho con apariencia de delito, con lo que el proceso no llega ni a iniciarse,
• 2)Bien pedir que se imponga al acusado una pena distinta o inferior a la prevista legalmente, a pesar de que es consciente de que la pena establecida en el Código Penal es otra o superior, y
• 3)Bien concluir con el proceso sin que en el mismo llegue a dictarse sentencia condenatoria, y siempre a pesar de la existencia de un hecho por lo menos aparentemente constitutivo de delito, todo esto tiene que suponer necesariamente la perversión de todo el sistema material penal.» «Lo más grave del caso es que todo el esfuerzo del legislador penal, las decisiones políticas adoptadas al tipificar una conducta y al señalarse una pena, pueden quedar privadas de sentido y en virtud de una norma no penal por la que se autorice al Ministerio Público a disponer de la aplicación de ese Derecho penal en los casos concretos. Si la norma que establezca el principio de oportunidad hubiera de calificarse de procesal, se llegaría al contrasentido de que todo el Código Penal quedaría sujeto en su aplicación a una norma procesal penal, a una única norma, con la cual podría decirse que quedan vacías de contenido todas las normas materiales penales» (MONTERO AROCA, Juan: Principios del proceso penal, Valencia, Tirant lo blanch, 1997, páginas 78 a 79).

«La introducción de esta figura, en el derecho penal argentino, no estuvo, ni está exenta de polémica. Contra la misma se han alzado importantes voces que rechazan abiertamente la posibilidad de que el Estado entable negociaciones con quien perpetra un hecho ilícito, tanto se por razones morales y constitucionales, como por la deslegitimación de los fines de la pena Estatal que el acuerdo provoca» (SCHIAVO, Nicolás: La figura del ‘arrepentido’ en la Ley 23.737, en <http://new.pensamientopenal.com.ar/16102007/doctrina03.pdf)>.

Tratándose del imputado colaborador, más que oportunidad (entendida como conveniencia), se trata de oportunismo, en la segunda acepción de esta palabra, “...que consiste en aprovechar al máximo las circunstancias para obtener el mayor beneficio posible, sin tener en cuenta principios ni convicciones” (REAL ACADEMIA ESPAÑOLA: Diccionario de la Lengua Española, Madrid, 21ª edición, 1992, página 1049), como lo es en esta materia hacer excepciones a la obligatoriedad en el ejercicio de la acción penal.

«...El testigo de la corona, llamado ‘pentito’ o arrepentido en la legislación procesal italiana, es un instrumento desdoroso, peligroso e inmoral, al que echa mano el estado en su lucha contra el crimen. No advierte el titular del derecho de persecución que en nuestro sistema es el Ministerio Público, que luchar contra la antijuridicidad utilizando recursos moralmente cuestionables viene a ser, en cierto modo, legitimar la conducta de quien se coloca al margen de la ley. Evidentemente, es un recurso efectivo y poderoso [...] Sin embargo, ello no desvirtúa el carácter inmoral del recurso empleado. El mal llamado criterio de oportunidad no es tal; es un criterio oportunista y no de oportunidad. Las partes no tienen manera de saber si los bienes jurídicos que se negocian son de mayor o menor rango que los que se quebrantan. El Ministerio Público maneja a su antojo ese peligroso instrumento y rinde cuentas de ello hasta el propio debate.

¿No es esto indefensión? Hace unos años, aprovechando la presencia de Eugenio Raúl Zaffaroni en Costa Rica conversé con él en compañía del distinguido colega Lic. Ricardo Hilje. Utilizando la coyuntura, pregunté al ilustre académico y magistrado argentino, su opinión acerca de este recurso que recién asomaba como posibilidad en el horizonte procesal costarricense. Zaffaroni me respondió lo que siempre había pensado: que un Estado de derecho no puede luchar contra el crimen utilizando los mismos recursos que éste, o sea aquellos que violentan principios básicos como la lealtad. El delator es odioso en todas partes, aunque el resultado de su delación sea axiológicamente aceptable...» (CASTELLON V., Gonzalo: El testigo de la corona, en el diario La Prensa Libre, jueves 29 de abril de 2010).

También es una excepción al régimen de prohibiciones que se refieren a la declaración del imputado, concretamente en el artículo 96 del Código Procesal Penal, pues no cabe duda de que negociar la aplicación de este criterio de oportunidad puede ser una forma de inducir o determinar al imputado para que “voluntariamente” declare aquello que le interesa al Ministerio Público. El párrafo tercero del artículo 96 CPP (“La promesa de una ventaja sólo se admitirá cuando esté específicamente prevista en la ley”) permite hacer lo que el resto de la norma prohíbe. Una ventaja no prevista en la ley sería prohibida, porque es a todas luces irregular ofrecer ventajas a un imputado a cambio de su confesión o de una delación, ya que la obtención del beneficio sería un factor que lo pude condicionar o determinar a decir “libremente” lo que quiere oírle decir el Ministerio Público a cambio de la ventaja que, desde una evidente posición de superioridad, le ofrece.

Es la ley, pero entraña una disonancia normativa. Aunque al imputado se le haga un ofrecimiento autorizado por el artículo 22 inciso b) CPP, el tribunal de juicio no puede pasar por alto que el imputado ha sido realmente tentado o manipulado por la ventaja que le ofrece el actor penal, que si declara no lo hace con una voluntad tan libre y espontánea como parece, sino condicionado por la obtención de una ventaja para sí, frente al rigor del sistema penal, de manera que la mera autorización de la ley para acordar un criterio de oportunidad no exime al tribunal del deber de ser particularmente cuidadoso a la hora de establecer cuál es el valor probatorio de la declaración que rinde el “testigo colaborador” (tal como lo advirtió el juez Camacho Morales en su voto salvado para la resolución de las 13:30 horas del 2 de setiembre de 2012, cfr. Tomo XXVIII, folios 13713 vuelto a 13714 vuelto). Pero si nuestro legislador adoptó el instituto cabe suponer que su propósito fue fortalecer la eficiencia del sistema (cfr.

GONZÁLEZ ÁLVAREZ, Daniel: El principio de oportunidad en el ejercicio de la acción penal, en Ciencias Penales, Revista de la Asociación de Ciencias Penales de Costa Rica, San José, Año 5, N° 7, julio de 1993, páginas 63 a 69), no favorecer la impunidad:

«En todos estos supuestos es requisito que el hecho de cuya persecución se prescinda, sea considerablemente más leve que aquellos que el imputado contribuya a investigar o a cesar su continuación, lo contrario sería fomentar la impunidad de los delitos graves, con lo que perdería todo sentido la aplicación del principio de oportunidad» TIJERINO PACHECO, José María: Principio de Oportunidad, en A.A.V.V.: Reflexiones sobre el nuevo proceso penal, San José, Imprenta y Litografía Mundo Gráfico S.A., 1996, página 98).

El jerarca del Ministerio Público que autoriza la solicitud es el competente para valorar la “oportunidad”, conveniencia y necesidad de aplicar este criterio (art. 22 CPP). En relación al control jurisdiccional de la aplicación de criterios de oportunidad, la Sala Constitucional se ha pronunciado en el sentido de que:

«...la función de acusar en los delitos de acción pública es una función asignada por Ley al Ministerio Público. En consecuencia, corresponde al Fiscal decidir respecto de la conveniencia de aplicar o no un criterio de oportunidad [...] La autorización del juez excluye la realización de un análisis de la conveniencia u oportunidad de la medida, dado que no puede sustituir la decisión del fiscal, que es el encargado del ejercicio de la acción penal...» (Sala Constitucional, N° 2001-02662 de las 15:30 horas del 4 de abril de 2001).

Pero es claro que al tribunal de juicio es a quien compete analizar y valorar la prueba que se produzca mediante este particular criterio de oportunidad. La Sala Tercera ha indicado que en razón de que la acción penal contra el imputado colaborador “...se encuentra suspendida supeditada a las resultas del juicio, la declaración que brinde el testigo de la ‘corona’ en debate en contra de los otros acusados debe realizarla en calidad de imputado y con respeto a las garantías que ello conlleva” (Sala Tercera, N° 476 de las 10:02 horas del 16 de marzo de 2012).

La Sala Constitucional también ha dispuesto algunos criterios a seguir respecto al imputado colaborador, y lo ha hecho precisamente con relación a este caso concreto, en la sentencia N° 2009-12090 de las 14:40 horas del 31 de julio de 2009, que se refiere a una acción de inconstitucionalidad promovida por don [Nombre012] contra los artículos 24, 297 inciso d) y 299 párrafo segundo del Código Procesal Penal:

«...el hecho de que no se encuentre previsto derecho de apelación de la resolución que aprueba la aplicación de un criterio de oportunidad por parte de quienes figuren como imputados en la misma causa, no lesiona el debido proceso ni el derecho de defensa, dado que el testimonio rendido por la persona a quien se ha aplicado un criterio de oportunidad, será valorado por el tribunal, quien deberá fundamentar la credibilidad que le otorgue o no, en relación con el resto de las probanzas y además, podrá ser cuestionado ampliamente por las partes en el debate. Asimismo, el imputado tiene el derecho de impugnar la sentencia si estima que se han producido vicios en la motivación del fallo o en la incorporación o valoración de la prueba...» «...se prevé la posibilidad de prescindir del ejercicio de la acción penal [...] siempre que su conducta sea menos reprochable que los actos punibles cuya persecución facilita o cuya continuación evita.

Esta evaluación de la reprochabilidad se refiere a la culpabilidad, de tal forma que quien colabora debe merecer un juicio de reproche o de culpabilidad menor que el autor principal respecto del cual presta la colaboración...» «...Es importante mencionar como referencia, que el Tribunal Europeo de Derechos Humanos, en sentencia del 6 de septiembre 1978, admitió la legitimidad del testigo de la corona o arrepentido. Posteriormente, la misma instancia jurisdiccional determinó, según decisiones del 27 de septiembre de 1990 y 20 de noviembre de 1989, que su admisibilidad debe ser solo como fuente de prueba indiciaria, es decir, que los datos o informaciones que brinde requieren el respaldo y 20 de noviembre de 1989, que su admisibilidad debe ser sólo como fuente de prueba indiciaria, es decir, que los datos o informaciones que brinde requieren el respaldo de otros medios de prueba. Se convierte en un medio de investigación sujeto a confirmación, directa o indirecta, de los datos o circunstancias que haya brindado sobre los hechos investigados.

Estas exigencias no le restan legitimidad al colaborador, según la jurisprudencia del Tribunal Europeo de Derechos Humanos» «... de una lectura del artículo 22 inciso b) impugnado, se infiere claramente que el criterio de oportunidad por colaboración, se aplica a aquellos partícipes cuya actuación se considere menos reprochable [...] se requiere, además, que el imputado colabore eficazmente con la investigación, brinde información esencial para evitar que continúe el delito o se perpetren otros, ayude a esclarecer el hecho investigado u otros conexos o proporcione información útil para probar la participación de otros imputado; toda esta colaboración requiere, según prevé la norma, que la conducta del colaborador sea menos reprochable que los hechos punibles cuya persecución facilita o cuya continuación evita. La reprochabilidad tiene que ver con el grado de culpabilidad con que se actuó, lo cual no puede determinarse a priori, sino necesariamente debe evaluarse en cada caso concreto...» Es importante señalar que en esta sentencia de la Sala Constitucional, los magistrados Calzada y Jinesta salvaron el voto, advirtiendo que:

«En nuestro criterio los ‘criterios de oportunidad’, producen el efecto antijurídico de la renuncia, total o parcial, del ius puniendi respecto de algunas infracciones o de determinadas personas que han participado en un hecho, presuntamente delictivo. El carácter irrenunciable de una potestad pública de primer orden resulta irreconciliable con cualquier criterio de oportunidad o discrecionalidad -al fin al cabo relativo y subjetivo- en su ejercicio. De otra par, la carta fundamental, presupone un orden ético y moral fundamental, tanto que el artículo 28 de la Constitución preceptúa que el principio de la autonomía de la voluntad tiene como uno de sus límites la moral. En nuestro criterio, los ‘criterios de oportunidad’ pueden resultar, eventualmente reprochables desde un punto de vista moral universal y de un mínimo sustrato ético-constitucional, por cuanto, habilitan al órgano de la persecución penal a prescindir de la acción penal pública contra determinadas personas o por ciertos hechos.

En otro orden de ideas, el principio de legalidad en materia penal, supone que el Pueblo en el que reside la potestad originaria de legislar la delega en la Asamblea por medio del sufragio (artículo 105 constitucional), para que tipifique determinadas conductas como antijurídicas y culpables , siendo que el órgano de la persecución penal, que carece de toda legitimidad democrática, no se encuentra en posición de disponer, discrecional o convenientemente, qué conductas y a cuáles persona persigue pese a que previamente el legislador, por delegación del pueblo, ha estimado que deben ser perseguidas. En suma, un órgano que carece de legitimidad democrática mediata o inmediata, no está en posición de ponderar lo que el interés público o general estima que debe perseguirse o no. Debe tenerse en consideración que las directrices y políticas básicas o fundamentales de investigación, de persecución y de ejercicio de la acción penal, son establecidas, primordialmente y ante todo, por la legislación represiva que haya dictado la Asamblea Legislativa por virtud del poder que delega el pueblo en ésta.

Se contraría, de esta forma, otro principio fundamental del parámetro de constitucionalidad recogido en el artículo 129 constitucional al preceptuar que ‘Las leyes son obligatorias’ y que ‘La ley no queda abrogada ni derogada sino por otra posterior’, dado que, pese al imperio y carácter vinculante de la ley y a la imposibilidad de derogar una ley para el caso concreto, con los criterios de oportunidad se puede desaplicar la ley para uno o varios hechos y para personas determinadas. La argumentación anterior acredita que los criterios de oportunidad resultan incompatibles con un correcto y debido entendimiento de un Estado Constitucional de Derecho, pese a los múltiples argumentos de carácter doctrinario, sociológico o criminológico que pueden respaldar su establecimiento (v.gr. que el sistema penal no tiene capacidad para reprimir todas las conductas, la economía de recursos en la persecución, que existan conductas insignificantes -delitos bagatela-que no se deben perseguir o que la persecución penal, tradicionalmente, se ha centrado en la delincuencia convencional zzando [sic] los delitos no convencionales, etc.).

Todos esos argumentos de carácter doctrinal o metajurídico que abonan los criterios de oportunidad no pueden anteponerse -por carecer de sustento constitucional- a los preceptos, valores y principios constitucionales enunciados. La derogación parcial o relativa del principio de legalidad -inherente al estado Constitucional de Derecho- a través de los criterios de oportunidad, es de tal entidad que precisa, inexorablemente, de una reforma constitucional que así lo admita, extremo que no contempla nuestra Constitución. Así, a modo de ilustración, según una hermenéutica sistemática y guardando las proporciones del caso, el artículo 180, párrafo 3°, de la Constitución de 1949 admite, en el Derecho Público nacional, la derogación o desplazamiento del principio de legalidad sustantiva y presupuestaria por el de necesidad, bajo circunstancias calificadas ‘para satisfacer necesidades urgentes o imprevistas en casos de guerra, conmoción interna o calamidad pública’.

Finalmente, es menester señalar que el órgano legislativo, en el ejercicio de su legítimo poder soberano, para el logro de los fines que buscan los criterios de oportunidad, tiene otras alternativas u opciones políticas, tales como la despenalización o descriminización’, el aumento de faltas administrativas deslindando, con rigor, el terreno del Derecho Penal y del Derecho Administrativo sancionador, la introducción de herramientas idóneas y b.- Consideraciones sobre el análisis y la valoración de la declaración rendida por [Nombre026]. Si a [Nombre026] se le concedió el criterio de oportunidad con fines utilitaristas, cabe entonces juzgar esa decisión del Ministerio Público por sus resultados o consecuencias. Desde esta óptica, cabe hacerse las siguientes preguntas sobre el imputado [Nombre026]:

¿Colaboró eficazmente con la investigación del hecho que se le atribuye a él?; ¿Colaboró eficazmente a esclarecer otros delitos relacionados con aquel en cuya causa se le está aplicando el criterio de oportunidad?; ¿Brindó información esencial para evitar que continúe el delito o que se perpetren otros?

¿Ayudó a esclarecer otros hechos conexos?

¿Proporcionó información útil para probar la participación de otros imputados en los hechos investigados?

¿La conducta de [Nombre026] fue menos reprochable que los hechos cuya persecución supuestamente facilitó o cuya continuación evita?

Esta Cámara considera que la respuesta para todas esas preguntas es “No”, pues salta a la vista que [Nombre026] ni siquiera rindió una declaración confiable y que la mayoría del tribunal no la analizó ni valoró críticamente, como lo requería a una deposición tan particular y supuestamente esencial. Recordemos que [Nombre026] es el único testigo presencial de la supuesta participación que él le atribuye a [Nombre012], lo que implicaba la necesidad de haber sido cauteloso a la hora de analizar y valorar su declaración, como aconsejan los estudiosos de esta disciplina que han reflexionado sobre este instituto, desde la Ilustración:

«Algunos tribunales ofrecen impunidad al cómplice de un grave delito que descubriere los otros. Este recurso tiene sus inconvenientes [...] Los inconvenientes son que la Nación autoriza la traición, detestable aún entre los malvados; porque siempre son menos fatales a una sociedad los delitos de valor que los de vileza, por cuanto el primero no es frecuente, y con sólo una fuerza benéfica que lo dirija conspirará al bien público; pero la segunda es más común y contagiosa, y siempre se reconcentra en sí misma. Además de esto, el tribunal hace ver la propia incertidumbre y la flaqueza de la ley, que implora el socorro de quien la ofende...» (BECCARIA, Cesare: De los delitos y de las penas, Madrid, Alianza Editorial, 1997, páginas 108 a 109).

También en la literatura clásica se encuentran fundados reparos respecto al testimonio sobre el hecho ajeno rendido por el imputado que confiesa todo o en parte a cambio de una ventaja, por ejemplo:

«Repetimos que cuántas veces se presente la inculpación en sentido genérico del cómplice, como descargo del sindicado que acusa, la sospecha sobre la veracidad de este es legítima. De esto se deduce que esa sospecha se torna desmesurada cuando se ha prometido la impunidad a condición de que se revele el nombre del cómplice, pues el impulso a mentir es tan grande, que la lógica se niega a tener en cuenta una revelación de partícipes como esta, que tiene por precio la impunidad de quien la hace. Pero afortunadamente, esa hipótesis de la impunidad como precio de la revelación ha perdido mucha importancia, por cuanto se ha comprobado que ocasiona graves daños. La promesa de impunidad, en vez de constituir un freno contra el delito, por la desconfianza que origina entre los cómplices, es incitación al delito, por la seguridad que le da a cada uno de tener siempre un camino abierto para escapar de la justicia penal.

La promesa de impunidad, que es un pacto inmoral entre la ley y el delincuente, además de ser un error jurídico, es un error probatorio, porque, por un lado, incita al delito y corrompe y perturba la sociedad con el espectáculo de la liberación de un delincuente impune, que casi siempre no solo es el más culpable, sino también el más perverso; y por el otro, subvierte todo criterio probatorio y produce en la consciencia del sindicado, y por obra de la ley, un impulso muy poderoso a falsas revelaciones» (FRAMARINO DEI MALATESTA, Nicola: Lógica de las pruebas en materia criminal, Tomo II, Editorial Temis, S.A., 2002, página 260).

En la actualidad cabe traer a colación las observaciones de Ferrajoli y de Riera Beiras sobre la figura del testigo colaborador. El primero ha advertido que como en el modelo garantista se invierte la idea de que el fin de la verdad justifica cualquier medio, de modo que es únicamente la naturaleza del medio lo que garantiza la obtención del fin; de ahí se deriva la prohibición de cualquier promesa o presión directa o indirecta sobre los imputados para inducirles al arrepentimiento o a la colaboración con la acusación; y nos previene de que:

«Todas las garantías penales y procesales [...] resultan efectivamente alteradas con la negociación entre las partes o, peor aún, entre juez e imputado que tenga por objeto la prueba y la pena: el nexo retributivo entre pena y delito, ya que la pena y su medida se hacen depender de la conducta procesal del reo más que de la gravedad del delito; el principio de estricta legalidad, por el carácter totalmente indeterminado y opinable del grado de fiabilidad y de relevancia de la colaboración prestada y, por ello, de los presupuestos de la bonificación en la pena; el principio de materialidad, dado el carácter eminentemente subjetivo de la actitud colaboracionista o, aun peor, del ‘arrepentimiento’ o de la ‘disociación’ requeridas al imputado, sobre quien además se desplaza la carga acusatoria de la prueba; el principio de contradicción, a causa de la confusión de papeles entre las partes y por el carácter de monólogo que se imprime a toda la actividad procesal; las garantías de defensa y publicidad, porque la colaboración del imputado con la acusación requiere un tête à tête entre investigador e investigado que no tolera la presencia de terceros extraños y que, al contrario, por el carácter desigual de la relación entre los contratantes, se degrada a turbias transferencias confianza del tipo ‘siervo y patrón’; el principio, por último, de la igualdad penal, dado que sólo pueden colaborar, tratar y lucrarse los culpables y tanto más si lo son gravemente, mientras que no podrían hacer otro tanto los inocentes o los que tienen responsabilidades marginales y que, por no saber nada del delito y al no aportar ninguna contribución acusatoria, resultan doblemente penalizados.

Legalidad, jurisdiccionalidad, inderogabilidad de la acción y del juicio e indisponibilidad de las situaciones penales se desvanecen en definitiva en esta negociación desigual, dejando espacio a un poder enteramente dispositivo que desemboca inevitablemente en el arbitrio» (el subrayado no es del original, FERRAJOLI, Luigi: Derecho y razón Teoría del Garantismo Penal, Editorial Trotta, Madrid, 1995, páginas 608 a 609).

Por su parte Rivera Beiras advierte con suma claridad y precisión el riesgo que entraña la figura del testigo colaborador para la averiguación de la verdad:

«...tal vez sea éste uno de los puntos que, con más fuerza, evidencia la presencia de lo político por encima de lo jurídico. A al punto es así, que pueden constarse claros ejemplo de legislaciones europeas que han ido -aunque con técnicas legislativas diversas- "legalizando" el tratamiento especial, benévolo y premial, a la figura de los delatores/arrepentidos/colaboradores con la justicia, etc.» «Y, en verdad, creo que puede afirmarse, sin temor a equivocarse o a exagerar, que ha sido la normativa sobre "arrepentidos" la que con más fuerza terminaría por cambiar profundamente el carácter de la legislación penal y de sus principios inspiradores. En efecto, fue ésta la tendencia legislativa que trastocó los cimientos de un Derecho penal de acto, del hecho, a los de un Derecho penal de autor. ¿Por qué se establece un juicio semejante? Veamos ciertos puntos, imprescindibles para ir hilvanando el proceso que intento describir.» «En primer lugar, ha de señalarse que el arrepentimiento del sujeto a premiar, no es ni mucho menos el arrepentimiento espontáneo que siempre ha existido en las legislaciones penales ordinarias.

Muy por el contrario, se trata de un arrepentimiento calculado. Y semejante cálculo se verifica sobre la base de medir los beneficios -procesales, penológicos o penitenciarios- que el el arrepentido piense que puede obtener.» «Dicho de un modo mucho más lano: se trata de alcanzar el cambio de bando del infractor a cambio de una remuneración judicial o negociada judicialmente.» «Asimismo, y cada vez más, el torcimiento del derecho se torna más evidente, se trata entonces de instrumentalizar al inculpado para, posteriormente, poder utilizar su confesión -como prueba provilegiada- contra sus ex compañeros delatados.» «También ha de decirse, en íntima relación con lo anterior, que el arrepentido suele -de acuerdo al grado de arrepentimiento/delación/traición al que llegue- dejar de ser un acusado para pasar a la categoría de testigo. Desde luego, no se trata de un testigo imparcial sino profundamente interesado.» «A partir de aquí, es evidente que ya no será posible saber cuándo está diciendo la verdad y cuándo está comenzando a exagerar, mentir o simplemente inventar para poder alcanzar los beneficios.

Y ello porque sus beneficios pasan a ser inversamente proporcionales a los perjuicios de las personas delatadas; la regla es simple: cuanto más perjuicio logre sobre sus excompañeros, más beneficio personal alcanzará.» «Se llega así a una de las consecuencias más sobresalientes de todo este sistema: terminará por cumplir menos condena, no quien delinca menos, sino quien delate más.» «No hace falta argumentar demasiado, me parece, después de las notas comentadas, para concluir afirmando que un sistema penal -sustantivo procesal- inspirado en los principios que han sido descritos, constituye una verdadera arma de lucha política que ha terminado por subvertir los principios de un Derecho penal nacido en la tradición liberal-ilustrada.» «Un ejemplo concreto y actual de todo cuanto se está mencionando lo constituye una norma del Código Penal español, cuando dispone que: "[...] los Jueces y Tribunales, razonándolo en sentencia, podrán imponer la pena inferior en uno o dos grados a la señalada por la ley para el delito de que se trate, cuando el sujeto haya abandonado voluntariamente sus actividades delictivas y se presente a las autoridades confesando los hechos en que haya participado, y además, colabore activamente con estas para impedir la producción del delito o coadyuve eficazmente a la obtención de pruebas decisivas para la identificación o captura de otros responsables o para impedir la actuación o el desarrollo de bandas armadas, organizaciones o grupos terroristas a los que haya pertenecido o con los que haya colaborado» (el subrayado es suplido, RIVERA BEIRAS, Iñaki: Recorridos y posibles formas de la penalidad, Anthropos Editorial, 2005, páginas 117 a 119).

Entre las críticas que hace nuestra academia del “imputado colaborador”, está precisamente el de la poca confiabilidad en sus resultados:

«Las críticas principales atienden a la escasa credibilidad que puede tener el testigo de la Corona...» «La práctica del Código de 1996 ha sido poco clara, en primer lugar, el instituto cayó en desprestigio cuando en un conocido caso el testigo de la Corona cambió varias veces su declaración.» (LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4ª ed., San José, Editorial Jurídica Continental, 2009, páginas 122 y 123).

«...se ha dicho que la prueba obtenida por esta vía merece muy poco crédito, pues fácilmente puede darse el caso del sujeto que quiere involucrar a otros para resguardar su propia situación, procurando ser liberado de su responsabilidad penal. A fin de cuentas, el beneficio legal que puede obtener el colaborador depende de la eficacia de sus aportaciones, de modo que estas pueden estar gravemente condicionadas por sus propios intereses, no sólo procesales, sino también económicos y hasta publicitarios. Pero no sólo eso, sino que es factible, además, que el presunto colaborador pretenda más bien confundir a las autoridades encargadas de la investigación, suministrando datos falsos. Piénsese, por ejemplo, en la manipulación que podrían hacer varios imputados, con sólo ponerse de acuerdo para ofrecer una colaboración distorsionada, falseando, por ejemplo, sus informaciones» «Para algunos, cuando un imputado delata a otros, afirmando que cometieron el hecho junto con él o que pretenden incurrir en más delitos, las autoridades están obligadas a actuar con la mayor prudencia y cautela, sin despreciar esas informaciones, pero otorgándoles sólo el valor que corresponde a una notitia criminis.

Si un imputado decide revelar secretos que otro guardaría celosamente ¿cuántas razones pueden motivar esa conducta? Por ello se ha dicho, con toda razón, que el sistema debería establecer todas las garantías necesarias para asegurarse de la veracidad de los datos, confirmando la información por otros medios.» «Sin embargo, en muchos casos las revelaciones del colaborador son aceptadas fácilmente como auténticos indicios de responsabilidad criminal, sin que importe la personalidad del informante, ni la poca credibilidad que éste merezca, ni las precedentes declaraciones contradictorias que haya rendido. Aunque en ocasiones el imputado colaborador no diga todo lo que sabe o no suma toda la responsabilidad que le corresponde, puede suceder que, por una actitud acomodaticia, sus revelaciones merezcan mucho más crédito que cualquier versión exculpatoria, ofrecida por aquellos que resultan delatados.

En ciertos casos, ello puede conducir a una falta de profundidad de las pesquisas policiales y, en estrecha relación con ello, a un estancamiento de las técnicas de investigación.» «En estas circunstancias, las garantías procesales, la presunción de inocencia y los parámetros clásicos de la investigación judicial pueden ser destruidos por la simple palabra del imputado colaborador» «...Debe tomarse en cuenta, además, que la fiscalía negocia con sujetos que eventualmente podrían seguir siendo parte de la organización criminal o relacionándose con ésta, por lo que es factible que suministren información falsa, ya sea con el fin de desviar la investigación, atrasarla o llevarla al fracaso, pudiendo dar lugar, incluso, a una condena injusta, dictada en contra de una persona inocente» (el subrayado no es del original, ZUÑIGA MORALES, Ulises: El Testigo de la Corona, en AAVV, Derecho Procesal Penal Costarricense, San José, Asociación de Ciencias Penales de Costa Rica, 2007, páginas 594 a 595 y 601).

En igual sentido, respecto a los “fraudes procesales” que puede propiciar el imputado colaborador y el problema de su valor probatorio, se advierte que:

«Al listado de reproches se adiciona el riesgo de que la Administración de Justicia pueda ser utilizada por ‘falsos arrepentidos’, quienes con la finalidad de desorientar las pesquisas, pueden comprometer la dignidad y la seguridad de personas que no tengan vinculación alguna con los delitos» «Parece estar fuera de toda duda que una sentencia penal puede sustentarse válidamente en la versión suministrada por un solo testigo, cuando el examen de su testimonio en el caso concreto soporta el análisis de las reglas del correcto entendimiento humano. Si ello es así, y se ha admitido como elemento de prueba válido la declaración de un coimputado en contra de otro, cabe cuestionarse cuál es el reproche concreto que se hace a la figura en torno a su valor probatorio. La objeción básica consiste en subrayar que se trata de una declaración altamente interesada en perjudicar a los otros encartados, y obtener de esa forma una ventaja en el proceso tramitado en su contra» (el subrayado no es del original, RODRIGUEZ CAMPOS, Alexander: El arrepentido y la investigación penal encubierta Aspectos problemáticos de la persecución del crimen organizado, en A.A.V.V., Una oportunidad para reflexionar XXV aniversario del Ministerio Público, San José, Departamento de Publicaciones e Impresos del Poder Judicial, 2000, páginas 299 y 301 a 302).

Cabe mencionar que el juez Camacho Morales, en su voto salvado, también explicó que en la tramitación y concesión del criterio de oportunidad a [Nombre026] hubo infracciones al debido proceso, incluso lo advirtió con anterioridad, con abundantes razones, desde que se dictó interlocutoriamente la resolución de las 13:30 horas del 2 de setiembre de 2010 (cfr. “Se rechazan las protestas por la actividad procesal defectuosa formuladas ante la comparecencia de [Nombre026] al debate sobre la base del criterio de oportunidad”, Tomo XXVIII, folios 13676 a 13736), resolución en la que también redactó un voto salvado (enfatizando sobre la necesidad de garantizar un control jurisdiccional sobre la aplicación de ese instituto a los coimputados que no se favorecieron de ese criterio de oportunidad) al que se remite y cita literalmente en el presente (cfr. páginas 1944 a 1988), agregando a lo que había dicho en aquella oportunidad que es claro que al juez penal se le ocultó información necesaria para resolver la solicitud de aplicación del criterio de oportunidad. Nos informa el juez Camacho Morales que:

«El Ministerio Público realizó una solicitud al Juez Penal ocultando información determinante para establecer la menor reprochabilidad y el análisis necesario de proporcionalidad en la aplicación del criterio de oportunidad. No se mencionaron en la solicitud del criterio de oportunidad otras conductas que podrían ser delictivas y que fueron confesadas por [Nombre026] y que se desprenden del informe pericial 297-DEF, prueba documental Nº 598, tales como “regalías” por $110.207,00 y $29.833,95 recibidas de Cibertec S. A. y Empaques Asépticos S. A. (folio 38). Además dinero que confesó [Nombre026] haber recibido de manos de [Nombre041] mediante el cheque Nº [Valor035] de la cuenta Nº [Valor036] del Banco de San José, de [Nombre041], relacionado con el proyecto de generación eléctrica La Joya, recibiendo supuestamente en total $56.000,00. Este último hecho consta en la denuncia aportada por la Defensa Técnica de [Nombre012] como prueba al plantear actividad procesal defectuosa contra el criterio de oportunidad, en forma interlocutoria, denuncia que dio lugar a la causa Nº 08-000032-615-PE.

En dicha documentación consta solicitud de desestimación de la causa en donde la fiscalía enlista todos los hechos denunciados contra [Nombre026] por el coimputado [Nombre012], admitiendo que han sido objeto de investigación, pero solicita la desestimación de la denuncia, bajo el argumento de que a [Nombre026] se le suspendió el ejercicio de la acción penal por aplicación de un criterio de oportunidad y por eso el Fiscal General no ha incurrido en el delito de incumplimiento de deberes. Con fundamento en dicha solicitud se desestimó la denuncia. Sin embargo, si se analiza el legajo de criterio de oportunidad se determinará fácilmente que en las solicitudes respectivas dirigidas al Juez Penal y en la resolución sin fundamentación que acuerda el criterio de oportunidad, ninguno de los hechos mencionados supra forman parte de dicho criterio de oportunidad, por lo que la suspensión de la acción penal que se produce como efecto de la aplicación del numeral 22 inciso b) del Código Procesal Penal, no podría alcanzar a dichos hechos, que no fueron expuestos al Juez Penal para que valorara en forma integral, la situación de [Nombre026], y determinara si era proporcional la aplicación del criterio de oportunidad que se pedía, y sobre todo, la menor reprochabilidad de [Nombre026] de cara a todos los delitos que el Ministerio Público tenía en mente otorgarle impunidad a dicho coimputado, pero que omitió poner en conocimiento del Juez Penal en la solicitud respectiva, resultando que el Juez Penal aplicó el criterio de oportunidad única y exclusivamente en relación a los hechos que comprendía la solicitud, según lo indicó expresamente en la resolución, al señalar en el “Por Tanto” que “(…) se suspende el ejercicio de la acción penal pública en relación con los hechos descritos en el considerando primero de esta resolución” (resolución de folios 41 a 89 del legajo de criterio de oportunidad.

El destacado fue suplido), de manera que los demás hechos a que se ha hecho referencia, por no haber sido descritos en la solicitud de aplicación de criterio de oportunidad y por lo tanto tampoco forman parte del considerando primero de la resolución, están y siempre han estado fuera del criterio de oportunidad y respecto de ellos se ha otorgado impunidad a [Nombre026], permitiendo que se extinga la acción penal por prescripción, situación evidentemente ilegal y que el Ministerio Público se ha negado a corregir, a pesar de que ha sido señalado por el coimputado [Nombre012] en la denuncia mencionada y por su Defensa Técnica en el debate, al momento de interponer actividad procesal defectuosa contra el criterio de oportunidad. Con el proceder del Ministerio Público, se ha otorgado a [Nombre026] impunidad mediante un criterio de oportunidad de hecho y no derecho, evadiendo el necesario control jurisdiccional que debe mediar al respecto.» (Sentencia, páginas 1989 a 1990).

También nos informa el juez Camacho Morales que en la negociación del criterio de oportunidad, se legitimó la tenencia por parte de [Nombre026] de sumas millonarias en dólares de supuesta procedencia ilícita, por haber sido recibidas supuestamente en concepto de dádivas, desaplicando e inobservando las disposiciones legales que establecen que el destino del producto del delito es y debe ser objeto de comiso, operando así una legitimación de capitales que le permitió a [Nombre026] conservar en su poder parte importante de dinero y bienes adquiridos como producto de las dádivas, beneficio económico que el juez Camacho Morales estima que ronda dos millones cuatrocientos mil dólares ($ 2,400,000.oo) (cfr. sentencia, páginas 1990 a 1991). De esta forma, indica el juez Camacho Morales, se determinó la declaración de [Nombre026]:

«A [Nombre026] también le fueron violados sus derechos fundamentales y particularmente se le desconoció su condición de persona y la dignidad aparejada a la misma. Al negociar con él un criterio de oportunidad mediante ofrecimientos ilegales (beneficio económico y ausencia de presupuestos legales para la concesión del criterio de oportunidad), se le ha instrumentalizado, se le ha degradado a la condición de objeto y se le ha utilizado por el órgano requirente del Estado para lograr sus propósitos inaceptables, en un sistema de juzgamiento democrático, de lograr una sentencia condenatoria acudiendo a medios proscritos por la ley, la Constitución Política y el Derecho Internacional de los Derechos Humanos. La declaración rendida por [Nombre026] y la formación de la voluntad para hacerlo, fue determinada en forma abiertamente ilícita (art. 96 del Código Procesal Penal), por lo que ha sido utilizado por el Ministerio Público para lograr sus fines, sin considerar que al final de este proceso, si impera la legalidad (criterio de minoría), [Nombre026] siempre podría ser sometido a juicio, por lo que se le ha creado una falsa expectativa y se ha violentado en su contra el principio de justicia pronta y cumplida.» «Así las cosas, la declaración de [Nombre026] es prueba ilícita y no puede ni debe ser valorada para fundar resolución alguna (art. 181 del Código Procesal Penal)...» Los hechos que se dicen acreditados en relación a don [Nombre012] se describen en el Considerando III de la sentencia, hechos n° 84 a n° 114 (cfr.

Sentencia, páginas 995 a 1007). Los hechos n° 84 a n° 94 describen la supuesta conversación que tuvieron [Nombre026] y [Nombre012] la mañana del día 4 de diciembre de 2000 en la casa de este último, en la que se dice que [Nombre026] le contó a [Nombre012] de la propuesta de dádiva que le habían hecho [Nombre035] y [Nombre015] el día anterior en el restaurante “[...]”, a cambio de realizar las acciones necesarias como director del ICE para impulsar la migración de la tecnología TDMA hacia tecnología GSM, evitar que el proceso de licitación de las cuatrocientas mil líneas fuera abortado y votar a favor de la adjudicación de dicha licitación a la empresa Alcatel. Ahí se dice que [Nombre012] aprobó que [Nombre026] aceptara la propuesta de los funcionarios de Alcatel y dispuso la forma en que la dádiva se distribuiría entre ellos dos. Estos hechos, según la mayoría del Tribunal debidamente acreditados, son los que dice constitutivos del delito que se atribuye a [Nombre012], pero la única prueba directa de ese hecho es el testimonio de [Nombre026] (no hay ningún elemento independiente que corrobore la veracidad de su dicho). Es importante traer a colación lo que el juez Camacho Morales nos indica al respecto:

«La específica configuración de los referidos hechos se sustenta exclusivamente en el dicho de [Nombre026], que como ya se dijo, es prueba ilícita y si no lo fuera, resultaría insuficiente por sí misma para demostrar tales hechos, según lo ha resuelto la jurisprudencia constitucional y de casación. En la sentencia 12090 de 2009 de las 14:40 horas del 31 de julio de 2009, la Sala Constitucional, refiriéndose a la legitimidad del testigo de la corona, cita resoluciones del Tribunal Europeo de Derechos Humanos en los que indica que la admisibilidad del testigo de la corona debe ser como fuente indiciaria de prueba, de manera que los datos o informaciones que brinde requieren el respaldo de otros medios de prueba. Expresamente indico la Sala Constitucional: “Es importante mencionar como referencia, que el Tribunal Europeo de Derechos Humanos, en sentencia del 6 de septiembre de 1978, admitió la legitimidad del testigo de la corona o arrepentido.

Posteriormente, la misma instancia jurisdiccional determinó, según decisiones del 27 de septiembre de 1990 y 20 de noviembre de 1989, que su admisibilidad debe ser sólo como fuente de prueba indiciaria, es decir, que los datos o informaciones que brinde requieren el respaldo de otros medios de prueba. Se convierte en un medio de investigación sujeto a confirmación, directa o indirecta de los datos y circunstancias que haya brindado sobre los hechos investigados. Estas exigencias no le restan legitimidad al colaborador, según la jurisprudencia del Tribunal Europeo de Derechos Humanos.” (El destacado fue suplido). Exactamente la anterior es la posición asumida por la Sala Tercera de la Corte Suprema de Justicia en la sentencia 136-2003, al referirse a la declaración de un imputado que declaró como testigo de la corona, negándole valor por sí misma para acreditar los hechos narrados, indicando expresamente la necesidad de contar con pruebas que corroboren su versión.

Al respecto dijo la Sala Tercera: “El único elemento considerado por el juzgador es la declaración del coimputado [Nombre048], quien dio los nombres de dos personas más como participantes en las sustracciones, y describe el aporte de cada uno y los lugares en que negociaron los objetos robados. Sin embargo esta versión no fue corroborada con otros elementos, excepto en lo que a la participación del “arrepentido” se refiere, pues a él se le decomisaron en el carro, objetos propios para la comisión de este tipo de delitos, así como bienes sustraídos. Lo único que liga a [Nombre049] con los hechos acusados, es la declaración del co-imputado, lo cual resulta insuficiente. [Nombre050] depende del resultado de esta causa, para que se dicte sobreseimiento en la suya.”» «Siendo que como ya se indicó, la declaración de [Nombre026] es prueba ilícita, pero además es la única prueba con la que el Ministerio Público pretende acreditar los hechos delictivos atribuidos a [Nombre012], y aunque se tratara de prueba lícita, no sería suficiente para demostrarlos, dada la condición de testigo de la corona y el beneficio que espera lograr con su declaración, requiriéndose pruebas adicionales para demostrar tales hechos, las cuales no se tienen, en razón de todo lo cual, los hechos objeto de comentario no fueron demostrados con prueba válida alguna.» (Sentencia, páginas 1993 a 1995).

Agrega el juez Camacho Morales que por estas mismas razones el solo testimonio de [Nombre026] también resulta ser insuficiente para demostrar las conductas que se atribuyen a los coimputados [Nombre018], [Nombre004], [Nombre001], [Nombre027], [Nombre021], [Nombre015] y [Nombre009] (cfr. Sentencia, páginas 1996 a 1997). Para esta cámara es criticable que el MP optara por aplicar el criterio de oportunidad a [Nombre026] pues parece no haber logrado una prognosis acertada de la reprochabilidad que razonablemente cabía anticipar respecto a cada uno de los supuestos agentes antes de llegar a juicio. Se ha dicho que esa falta de discriminación puede dar lugar a situaciones tan inaceptables como, por ejemplo, que al autor de un Homicidio sea favorecido con la impunidad a cambio de que con su confesión delate a los cómplices (el ejemplo es de LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4ª ed., San José, Editorial Jurídica Continental, 2009, página 124). Al respecto ha señalado la Sala Tercera que:

«Es requisito para la aplicación de este criterio, que la acción penal de la cual se prescinde, resulte considerablemente más leve que los hechos punibles cuya persecución facilite. Esto es así, porque como se indicó con anterioridad, no se busca la impugnidad [sic] con la aplicación del instituto, sino una mayor eficacia del sistema. Si se permitiera la negociación a una persona con una mayor participación o que haya cometido un delito más grave que el de aquel a quien se pretende perseguir, no habría proporción entre el castigo impuesto y el suceso que se dejó sin sancionar. Si los hechos resultan de la misma gravedad o participación, el azar o la arbitrariedad determinarían quién sería juzgado y quién no. Es por ello que se estableció la aplicación del criterio únicamente para aquellos casos en los cuales la participación del “arrepentido” es menor que la de la persona que se desea atrapar, en el caso del mismo hecho, o el delito menos grave cuando se trata de uno diferente.

En el presente asunto no debió aplicarse el criterio de oportunidad, puesto que ambos acusados tenían idéntica participación, en el mismo hecho. Según la relación de hechos probados eran tres las personas que cometían las sustracciones, dividiéndose las funciones de manera tal que [V.Z.] y [M.A.] ingresaban a las casas y tomaban los objetos, mientras [E.Q.] conducía el auto en que se movilizaban, los esperaba fuera de las viviendas elegidas, y luego en ese carro se alejaban del lugar. Conforme a la prueba, también en el vehículo conducido por [E.Q.] se desplazaban a vender los objetos sustraídos y las ganancias se las repartían entre todos. Es evidente que los tres acusados son coautores en los ilícitos. La selección de un imputado para ser llevado a juicio, y de otro para aplicarle un criterio de oportunidad fue caprichosa y da lugar a la arbitrariedad y a la inseguridad. No se cumplió el presupuesto de que la participación del “arrepentido” sea considerablemente más leve que la de aquél a quien se quiere perseguir» (el subrayado no es del original, Sala Tercera, N° 2003-00136 de las 9:20 del 28 de febrero de 2003).

El imputado [Nombre026] no mantuvo una versión coherente a lo largo del proceso, tanto es así que la indagatoria hecha al Dr. [Nombre012] se hizo con base a la primera versión que sostuvo [Nombre026] (según la cual incurrió en la recepción de dádivas sin promesa anterior por un acto cumplido, sin otra actuación de [Nombre012] que la recepción de dádivas relacionadas con el dinero recibido por [Nombre026] de Alcatel), mientras que la acusación y el debate se basaron en una versión diferente y sobre la cual no se indagó el imputado (según la cual recibió una propuesta corruptora que aceptó y por eso favoreció a Alcatel a cambio de una dádiva posterior, con participación previa de [Nombre012]). Es así como Don [Nombre012] ni siquiera fue intimado o indagado por la supuesta reunión en su casa, en la que supuestamente determinó a [Nombre026] a delinquir, de manera que -como reprocha el licenciado Gairaud- nunca fue intimado por la conducta que se dice configura el delito de instigación. En la sentencia se afirma que [Nombre012] instigó a [Nombre026] y ese no era un hecho conocido en el expediente al momento en que [Nombre012] declaró, sino hasta ocho meses después, cuando [Nombre026] da su segunda versión de los hechos. El propio [Nombre026] reconoce que cambió su versión inicial en su declaración en juicio, y trata de justificarlo:

«Esa noche en el Ministerio Público yo asumí mi responsabilidad y dije que el ofrecimiento había sido posterior a la adjudicación, fue como autojustificándome, estaba tan confundido y desorientado, pero era obvio que esa afirmación no se iba a sustentar por sí sola; eso porque la Fiscalía que eso no podía ser así, que lo justificara y fue cuando aclaré las cosas, dije que el ofrecimiento no fue después de la adjudicación sino antes» (Sentencia, página 520).

«Sí dije en esa declaración que el dinero o premio de Alcatel lo recibí posteriormente a la adjudicación en junta directiva, creo que esa versión la di el 30 de setiembre de 2004, no recuerdo si se la consulté a mi abogado. Lo que yo tengo es un barniz jurídico, pero ya expliqué aquí que la verdad es otra, ya eso lo había indicado aquí, lo que dije aquí es lo cierto. Yo no mentí, sino que simplemente en aquel momento traté de cubrirme o auto protegerme, pero luego fui precisando. Alcatel me ofreció un 1.5% o 2% [...] En esa declaración del 30 de setiembre admití mi responsabilidad y di una detallada descripción de ellos, en un afán de autojustificarme indiqué que el ofrecimiento se materializaría con posterioridad, pero luego fui aclarando el punto...» (Sentencia, páginas 543 a 544).

Luego cambia la versión para confesar una supuesta Corrupción agravada por Cohecho impropio, declaración que precisamente le permitiría obtener un procedimiento abreviado en mayo de 2005. Salta a la vista que lo que en realidad hizo no fue “aclarar el punto” sino modificar sustancialmente su versión, por el beneficio que significada un procedimiento abreviado que a fin de cuentas ni siquiera se concretó porque, mediante el criterio de oportunidad, se le confirió impunidad a cambio de que declarara su nueva versión de los hechos. Como las dos versiones indicadas no pueden ser ciertas a la vez, al menos una de ellas tiene que haber sido falsa, de manera que podemos afirmar con certeza que él mintió en algún momento para beneficiarse, que de esa manera obstaculizó la averiguación de la verdad, por lo que el tribunal de juicio debió ser más suspicaz a la hora de analizar y valorar su testimonio.

Sin embargo, la mayoría pasó a por alto esta realidad y confiadamente estimó que [Nombre026] declaró desinteresadamente para colaborar con la Administración de Justicia. El voto de mayoría, por una parte, elude el problema concerniente a la indagatoria de don [Nombre012] diciendo que el imputado tenía que solicitar ampliar su primera declaración, para referirse a estos “otros” hechos, como si fuera una carga del acusado el procurar estar debidamente indagado. Pretender que el imputado tenga la obligación de averiguar cuál es el hecho que se le imputa y conocer la prueba habida en su contra es kafkiano. La intimación es parte del debido proceso (S-IV, N° 1739-92), la variación de los hechos por los cuales se le investiga compromete el derecho de defensa del imputado, corresponde al Ministerio Público volver a indagar al acusado intimándole los nuevos hechos que se le atribuyen. Por otra parte, la mayoría soslaya la falta de coherencia del imputado [Nombre026], evade la dificultad que deriva de esa evidente inconsistencia suya, y más bien le da carácter de plena prueba, le asigna plena credibilidad, cuestión de gran incidencia para lo que la mayoría resolvió, si se considera que respecto a la mayor parte de los hechos probados no existe otro elemento de prueba que corrobore el sólo dicho de [Nombre026].

Hay motivos para sospechar razonablemente de que [Nombre026] fue variando su versión a lo largo del proceso para obtener diferentes beneficios procesales (el arresto domiciliario en vez de la prisión preventiva, la posibilidad de acordar un procedimiento abreviado, finalmente la obtención de un principio de oportunidad). Es razonable sospechar que él procuró su impunidad a toda costa, incluso declarando contra terceros (especialmente contra [Nombre012]). La suya fue una declaración interesada, por lo que necesariamente el tribunal debió ser más suspicaz y examinar rigurosamente si se contaba con otros elementos de prueba independientes que confirmaran o corroboraran el dicho de [Nombre026] en las cuestiones de hecho de relevancia penal.

[Nombre026] no tuvo que jurar decir la verdad, declaró como imputado asistido por un defensor, absteniéndose de declarar o contestar ante los cuestionamientos que le hicieron, incluso su defensor -sentado a su lado- le hablaba al oído antes de responder, según se aprecia en el registro audiovisual de las correspondientes audiencias del debate. La propia mayoría consigna en su resolución que [Nombre026] se abstuvo de responder a cuestionamientos formulados por los abogados de los encartados [Nombre012], [Nombre015] y [Nombre021], pero dicen las juezas que eso no le resta credibilidad a su relato, ya fuera porque lo interrogaban sobre hechos auto incriminatorios (cfr. Sentencia, páginas 1642 a 1643), criterio que no acepta como válido esta cámara, porque si el actor penal ha prescindido totalmente de la persecución penal contra él se supone que ha sido precisamente para que colabore con la averiguación de la verdad real. Por otra parte, aún cuando [Nombre026] incurre en contradicciones (que él atribuye a "confusiones") que la defensa señala para demostrar que no es confiable, la mayoría del tribunal optó por excusarlo, como por ejemplo en la página 1723:

«[Nombre026] refiere que éstas eran fechas de confusión emocional para su persona y por eso incurrió en el error de señalar que la entrega fue en dinero efectivo, cuando lo cierto es que fue como lo declaró en el debate, sea acudiendo a los certificados de inversión de dinero perteneciente a su madre por haber sufrido el bloque de fondos provenientes de Alcatel y depositados en el Banco Saint Georges. Para esta integración las citadas explicaciones resultan valederas al tenor de las reglas de la lógica y la experiencia común debido a los diversos movimientos bancarios efectuados por [Nombre026] para proceder a las respectivas entregas de dinero a [Nombre012], sumado a que se ha corroborado, conforme a su declaración oral y la prueba documental, que el monto descrito no lo entregó en dinero efectivo sino mediante 7 certificados al portador...» (Sentencia, páginas 1723 a 1724).

Finalmente, en cuanto al fondo de su declaración, respecto a lo que [Nombre026] dice que ocurrió, tampoco resulta confiable su declaración, pues dice que no aceptó la oferta hasta que [Nombre012] le dio su aprobación, esto así, explica él, porque cuando le hicieron la propuesta contestó que él solo no podría hacer lo que le pedían a cambio del "premio" ofrecido, que él no podría "direccionar el criterio de seis compañeros de la junta directiva" porque era "algo muy grande [...] y que requería una instancia superior a mis capacidades". Dice que él asumió que tendría que contar con la promesa de [Nombre012], que si don [Nombre012] hubiera dicho que no él "abortaba la situación" (cfr. sentencia, página 502), más luego resulta que ni él ni [Nombre012] tuvieron que hacer nada para direccionar a otros miembros de la junta directiva, según lo que dice el propio [Nombre026]:

«La adjudicación a favor de Alcatel fue unánime, si hubo algún miembro de la junta directiva con una posición disidente no la hizo pública. Nadie presentó objeción. Mi actuación para adjudicar la licitación a Alcatel fue emitir el voto, yo no tenía más importancia que el resto de los directores y por eso, si se disentía, era importante la interferencia del señor Presidente de la República, ante la eventualidad de que el resto de directores tuviera otro rumbo. No sé si la eventualidad se dio porque eso le corresponde al Presidente» (sentencia, páginas 539 a 540).

«No sé si él [[Nombre012]] hizo algo no hizo algo» (sic, sentencia, folio 548).

Es muy sospechoso que diga que requería la aprobación de [Nombre012] para lograr un resultado que a la postre se dio sin requerir ninguna "dirección de rumbo" por parte de aquel. No hay ningún elemento de prueba que indique que [Nombre012] hubiera ayudado en algo a que [Nombre026] cumpliera lo que le pidieron los corruptores. Todo esto permite dudar razonablemente de que haya sido real la supuesta participación que [Nombre026] atribuye a [Nombre012], pues es plausible suponer que bien podría tratarse de una falsa imputación, dispuesta para simular la existencia de un imputado más reprochable que él y así poder obtener los beneficios derivados del criterio de oportunidad como imputado colaborador. Incluso se podría suponer que en el momento en que [Nombre026] pretende introducir la supuesta participación del [Nombre012], ya era innecesaria la influencia de este. c.- Conclusión.- Como dijimos antes, el imputado [Nombre026] es el único testigo presencial de la supuesta forma de participación que él le atribuye a [Nombre012] (haberlo instigado o determinado a cometer el delito de Corrupción agravada en la modalidad de Cohecho impropio) y su dicho la única prueba directa de ese supuesto hecho que constituye nada menos que el núcleo de la imputación, circunstancia que subraya la necesidad de haber sido cauteloso a la hora de analizar y valorar la credibilidad de su declaración, la cual -por ser un testigo colaborador- requería ser confirmada o corroborada por elementos de prueba independientes, no en circunstancias secundarias, sino respecto a los elementos esenciales de su dicho, condición prescrita por la propia jurisprudencia constitucional que no se cumplió en este asunto.

La sola circunstancia de que los supuestos protagonistas del hecho -[Nombre035], [Nombre015], [Nombre026] y [Nombre012]- estuvieran en Costa Rica el día 3 de diciembre de 2000 (según el estudio de sus movimientos migratorios, liquidaciones de gastos e itinerarios de viaje, que hace la mayoría del tribunal en sentencia, cfr. páginas 1685 a 1690, acápite que lleva por título "Comprobación de las manifestaciones de [Nombre026] en cuanto a la reunión en [...] y en la casa del encartado [Nombre012]"), que fue día en que [Nombre026] dice haber conversado a solas con [Nombre012] en su casa, no es prueba que corrobore que [Nombre012] haya "aprobado" que [Nombre026] aceptara la propuesta de los funcionarios de Alcatel, se trata de un indicio tan ambiguo o equívoco que, por sí solo, podría ser simplemente una casualidad. Tampoco el supuesto hecho de que las circunstancias urgieran la necesidad de que [Nombre026] realizara lo que le pidieron sus corruptores (cfr.

Sentencia, páginas 1691 a 1693), podría considerarse como un indicio de que [Nombre026] Dijo la verdad al atribuir participación a [Nombre012]. Finalmente, la existencia de documentos que corroboran que [Nombre026] le transfirió dinero a [Nombre012] no confirman necesariamente que [Nombre026] haya dicho la verdad, porque también permitirían corroborar la defensa de [Nombre012], quien explica que su causa es un préstamo personal que [Nombre026] le hizo y que él acepto porque consideraba que la fortuna de aquel era legítima. Es patente la ausencia de elementos objetivos que corroboren el dicho de [Nombre026], en cuanto a la aprobación e indicaciones que dice haber recibido de [Nombre012]. La mayoría del tribunal de juicio minimizó que la tentación de obtener la impunidad por uno o varios hechos propios, pudo determinar al encartado [Nombre026] a inculpar falsamente a otras personas como partícipes, que su interés pudo ser lo suficientemente grande para motivarlo a engañar al Ministerio Público y a los jueces con mentiras, incluso calumniando a un inocente, señalándolo falsamente como coautor o partícipe (cómplice o instigador), si de esa manera podía minimizar o evadir su responsabilidad personal.

La sospecha de mendacidad del imputado colaborador sobre el hecho ajeno, el motivo de su descrédito, es un lugar común en la doctrina y todas las citas que se han incluido en este apartado son para ilustrar al lector de por qué se considera que el imputado colaborador no es un testigo idóneo (por carecer de voluntad para decir la verdad y más bien tener voluntad de engañar). La propia naturaleza de los delitos que se atribuyen a [Nombre026] son un factor objetivo que permite sospechar razonablemente de él, pues si precisamente se afirma que deliberadamente ha faltado a los deberes de la función pública que se le confió, rebajándola a medio para actuar corruptamente y enriquecerse, cabe suponer que carece del sentido moral que supone un sincero arrepentimiento, máxime si concurren otros factores objetivos como son las altas penas de prisión que se le podrían llegar a imponer, la magnitud del daño económico causado, que en conjunto pueden motivarlo a interesarse en delatar o incluso calumniar a terceros sin con ello atenúa los rigores del sistema penal u obtiene una ventaja procesal tan apreciable como es la impunidad; más la posibilidad de conservar por esta vía gran parte del dinero y de los bienes adquiridos mediante las dádivas recibidas.

Y si a lo anterior se agrega que el [Nombre026] ha incurrido en contradicciones, que ha venido modificando sustancialmente y a conveniencia su versión de los hechos (que en cuanto al fondo tampoco es confiable), se comprenderá porqué esta cámara considera que él es indigno de la credibilidad que le concedió la mayoría del tribunal de juicio. [Nombre026] no actuó ni declaró en forma sincera y desinteresada, ni tampoco "...para que situaciones como la suya sirvieren de reflexión social" (Sentencia, páginas 1632 a 1633). La mayoría del tribunal de juicio consideró que "sus manifestaciones son totalmente creíbles y desinteresadas" (Sentencia, página 1642), esta suposición de las juzgadoras no se afianza en ningún elemento objetivo. Por el contrario, el proceso de cambio evidenciado en su versión de los hechos, es un factor objetivo que permite suponer razonablemente que él actuó en forma parcializada o egoísta, motivado por su propio interés o conveniencia.

• B)Extinción de la acción penal (prescripción). En este asunto hubo una errónea aplicación de las normas que se refieren al régimen de la prescripción de la acción penal. La prescripción es una de las causas de extinción de la acción penal (artículo 30 inciso e del CPP) y conviene recordar que la Sala Constitucional se ha referido a la naturaleza del instituto de la prescripción en los siguientes términos:

«Esta Sala ha señalado en múltiples oportunidades que la prescripción de la acción penal, constituye una sanción procesal ante la inercia de la Administración de Justicia cuyo objetivo inmediato es garantizar la seguridad jurídica, tanto de los sujetos involucrados en la causa, como de la colectividad en general» (Sala Constitucional, N° 856-2001 de las 15:18 horas del 31 de enero de 2001).

El artículo 62 de la «Ley contra la corrupción y el enriquecimiento ilícito en la Función Pública» (Ley N° 8422 de 6 de octubre de 2004, rige a partir de su publicación en La Gaceta N° 212 del 29 de octubre de 2004), reformó el régimen de la prescripción de la acción penal para los delitos contra los deberes de la función pública, en los siguientes términos:

«Artículo 62.-Prescripción de la responsabilidad penal. La acción penal respecto de los delitos contra los deberes de la función pública y los previstos en la presente Ley, prescribirá en la forma establecida por la legislación aplicable; no obstante, regirán las siguientes reglas:» «a) Una vez interrumpida la prescripción, los plazos fijados en el artículo 31 del Código Procesal Penal volverán a correr por un nuevo período, sin reducción alguna.» «b) Además de las causales previstas en el artículo 33 del Código Procesal Penal, la acción penal podrá interrumpirse por la declaratoria de ilegalidad de la función administrativa, activa u omisiva, o por la anulación de los actos y contratos administrativos que guarden relación con el correspondiente delito, ya sea que el pronunciamiento se produzca en vía judicial o administrativa.» Salta a la vista que el inciso a) del artículo 62 de la Ley N° 8422 introdujo una sensible excepción a lo que dispone el párrafo primero del artículo 33 del Código Procesal Penal (reformado por Ley N° 8146 de 30 de octubre de 2001, publicada en La Gaceta N° 227 de 26 de noviembre de 2001) como efecto jurídico de la interrupción del plazo de la prescripción:

«Iniciado el procedimiento, los plazos previstos en el artículo trasanterior se reducirán a la mitad para computarlos, a efecto de suspender o interrumpir la prescripción…» Se ha discutido a lo largo del proceso si el inciso a) del artículo 62 de la Ley N° 8422 es aplicable a este asunto, concretamente si una vez interrumpida la prescripción, el plazo fijado en el artículo 31 del CPP vuelve a correr por un nuevo período, con reducción o sin reducción alguna. Se trata de un problema de aplicación de la ley en el tiempo, que se resuelve mediante la aplicación directa de dos normas de nuestra Constitución Política, a saber, los artículos 34 y 129, que dicen así:

«Artículo 34.- A ninguna ley se le dará efecto retroactivo en perjuicio de persona alguna, o de sus derechos patrimoniales adquiridos o de situaciones jurídicas consolidadas.» «Artículo 129.- Las leyes son obligatorias y surten efectos desde el día que ellas designen; a falta de este requisito, diez días después de su publicación en el Diario Oficial.» «Nadie puede alegar ignorancia de la ley salvo en los casos que la misma autorice.» «No tiene eficacia la renuncia de las leyes en general, ni la especial de las de interés público.» «Los actos y convenios contra las leyes prohibitivas serán nulos, si las mismas leyes no disponen otra cosa.» «La ley no queda abrogada ni derogada sino por otra posterior; contra su observancia no podrá alegarse desuso, costumbre ni práctica en contrario. Por vía de referéndum, el pueblo podrá abrogarla o derogarla, de conformidad con el artículo 105 de esta Constitución.» (Así reformado este último párrafo por el Artículo 1 inciso d) de la Ley 8281 de 28 de mayo de 2002, publicada en La Gaceta No. 118 de 20 de junio de 2002).

Conforme a estas normas, al artículo 62 de la Ley N° 8422 no se le puede dar efecto retroactivo en perjuicio del imputado, y se debe considerar que es obligatorio y surte efecto desde el día que esa ley designa, que es el de su publicación, ocurrida el día 29 de octubre de 2004. Para esa fecha ya había operado la interrupción del plazo de la prescripción en el caso del Dr. [Nombre012], que fue la primera imputación formal de los hechos (según el artículo 33 inciso a del Código Procesal Penal), por lo que el plazo de prescripción se redujo a la mitad y volvió a correr de nuevo a partir del 15 de octubre de 2004 (día en que se realizó la indagatoria del acusado), porque ese el efecto previsto en la ley vigente al momento del hecho interruptor. El plazo inicial de prescripción de la acción penal, en el caso del Dr. [Nombre012], es de cinco años (según la relación de los artículos 31 y 32 del Código Procesal Penal; 46, 74, 340 y 342 del Código Penal, pues el plazo máximo de la pena es de cinco años, ya que se le acusa de «Instigación al delito de Corrupción agravada en la modalidad de Cohecho Impropio»).

Iniciado el procedimiento ese plazo se reduce a la mitad para computarlo a efecto de suspender o interrumpir la prescripción, y fue interrumpido por la indagatoria del 15 de octubre de 2004 (cfr. Tomo II, folios 552 a 558), dando lugar a que empezara a correr de nuevo un plazo reducido a la mitad (esto es, de dos años y seis meses) que transcurrió sin que mediara ninguna causa de suspensión de la acción penal y que se cumplió el 15 de abril de 2007. El siguiente acto interruptor previsto en la ley fue la resolución que convoca por primera vez a la audiencia preliminar (artículo 33 inciso c del CPP), evento que sucedió hasta el día 10 de setiembre de 2007 (mediante resolución de las 13:30 horas del 10 de setiembre de 2007, cfr. Tomo XX, folios 8452 a 8453), razón por la cual sí se causó la extinción de la acción penal por prescripción en el caso del Dr. [Nombre012]. Ahora bien, no pasa por alto esta cámara que el párrafo final del 376 del Código Procesal Penal indica que:

«Cuando la aplicación del procedimiento complejo sea dispuesta durante las fases preparatoria o intermedia, no regirá la reducción del término de prescripción a la mitad, prevista en el artículo 33 de este Código» (Así adicionado por Ley N° 8146 de 30 de octubre de 2001, publicada en La Gaceta N° 227 de 26 de noviembre de 2001).

Sin embargo, no basta con que la resolución que dispone que el asunto es de tramitación compleja se dicte durante las fases preparatoria o intermedia para que no rija la reducción del término de prescripción a la mitad, pues resulta evidente que no se puede aplicar con efecto retroactivo a los casos en que ya operó una causal de interrupción que -para beneficio del imputado- redujo el plazo a la mitad, como sucedió en este asunto, pues la resolución que dispuso que es de tramitación compleja se dictó hasta el día 3 de marzo de 2006 (mediante resolución de las 15:00 horas del 3 de marzo de 2006, cfr. Tomo XVII, folios 7506 a 7566) y devino confirmada mediante voto N° 403-06 de las 13:30 horas del 23 de junio de 2006, cfr. Tomo XVII, folios 7703 a 7707), pues el dictado de esa resolución no puede revocar o anular el efecto jurídico que la propia ley asigna a un acto interruptor ya cumplido. Debemos tener presente que la regla es que las resoluciones no son ejecutadas durante el lazo para recurrir y mientras se tramite el recurso, salvo disposición legal en contrario (artículo 444 CPP). El párrafo segundo del artículo 379 del CPP recalca que:

«Los Tribunales velaran especialmente porque la aplicación de las normas especiales [del procedimiento para asuntos de tramitación compleja] no desnaturalice los principios y garantías previstos en la Constitución, en el Derecho Internacional o Comunitario vigente en Costa Rica y la ley.» Si a la resolución que dispone que el asunto sea de tramitación compleja (habiendo sido dictada durante las fases preparatoria o intermedia), se le atribuye retroactivamente el efecto jurídico previsto en el párrafo final del artículo 376 CPP, se estaría infringiendo las citadas normas constitucionales que rigen la aplicación de le ley en tiempo y el principio mismo de legalidad previsto en el artículo 1 del CPP, dando injustamente al Ministerio Público -y al propio tribunal- la oportunidad de burlar esa sanción procesal que es la prescripción de la acción penal.

A mayor abundamiento, existen obras jurídicas costarricenses que analizan cuál es el alcance del párrafo final del artículo 376, se trata del criterio académico de dos reconocidos juristas (ambos ex magistrados suplentes de la Sala Tercera, ex jueces del Tribunal de Casación Penal y profesores de la Facultad de Derecho de la Universidad de Costa Rica) que fueron advertidas por los señores defensores ante el tribunal, concretamente los siguientes textos de la licenciada Rosario Fernández Vindas y del doctor Javier Llobet Rodríguez.

«En concordancia con esto, tendríamos que si el proceso se declara de trámite complejo luego de la ‘primera imputación formal de los hechos al encausado en los delitos de acción pública’, acto que de acuerdo con el numeral 33 inciso a) del C.P.P. conlleva la interrupción de la prescripción de la acción penal, por un plazo reducido a la mitad, esta reducción debe aplicarse, pues en dicho momento el proceso no sería de tramitación compleja sino simple. En síntesis, no es procedente darle carácter retroactivo a la referida declaratoria de compleja, a efectos de la excepción que se establece sobre la prescripción de la acción penal, al estar esto conectado a la realización de determinados actos, que en última instancia es la que incide en que se aplique, o desaplique, la disminución del tiempo a considerar para que prescriba la acción penal, de modo que si el acto interruptor de la prescripción de la acción penal ocurre bajo la vigencia de la declaratoria de tramitación compleja del proceso, dictada en las etapas preparatoria o intermedia, esa reducción no opera, debiendo contarse el plazo completo a partir de ello; por el contrario, si el acto que interrumpe esa prescripción se dio cuando no se había dispuesto la tramitación compleja de la causa, sea, cuando el proceso se realizaba conforme al trámite general, simple, debe aplicarse el plazo reducido de la prescripción, el que se mantendría en tanto no deviniera otro acto que tenga la virtud de interrumpir esa prescripción, el que de producirse ya bajo la autorización de trámite complejo, y, por ende, bajo la situación de excepción, haría que el plazo de interrupción de la prescripción de la acción penal deba contarse completo (no reducido a la mitad) a partir de ese acto especifico» (el subrayado es suplido, FERNÁNDEZ VINDAS, Rosario: Procedimiento para asuntos de tramitación compleja, en A.A.V.V., Derecho Procesal Penal Costarricense, Tomo II, Asociación de Ciencias Penales de Costa Rica, 1ª ed., San José, 2007, págs. 923 a 924).

Por su parte, respecto al párrafo tercero del artículo 376 del CPP, el doctor Llobet Rodríguez, comenta lo siguiente:

«Este párrafo fue introducido en la reforma de la ley 8146 del 30 de noviembre del 2001. Lo correcto es que no se pueda aplicar la falta de reducción del plazo en forma retroactiva, de modo que cuando antes de la declaración de tramitación compleja se dio una causal de interrupción de la prescripción, el plazo que continúa corriendo es reducido a la mitad. En ese supuesto cuando se da una nueva causal de interrupción de la prescripción con posterioridad a la declaratoria de tramitación compleja, entonces en ese caso sí opera la disposición de que el plazo de prescripción no se reduce a la mitad, de modo que el plazo que corre a partir de esta interrupción es completo (sobre ello véase: Cf. Fernández Vindas. Procedimiento..., pp. 923-924)» (el subrayado es suplido, LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4ª ed., San José, Editorial Jurídica Continental, 2009, pág. 567).

Sin embargo, para el tribunal de juicio la declaratoria de tramitación compleja sí tiene, desde que adquiere firmeza (el 23 de junio de 2006), el efecto previsto en el párrafo final del artículo 376, de que no se aplique la reducción del término de la prescripción a la mitad, prevista en el artículo 33; lo resolvió así -por unanimidad- en su resolución de las 8:00 horas del 14 de mayo de 2010 (cfr. Tomo XXVII, folios 13352 a 13408 vuelto). En dicha resolución se afirma lo siguiente:

«El último párrafo del numeral 376 del Código Procesal Penal fue incluido mediante reforma operada por Ley N° 8146 de 30 de octubre de 2001, publicada en La Gaceta N° 227 de 26 de noviembre de 2011, por lo que es y ha sido norma vigente desde varios años antes de iniciar este proceso que data de finales del año 2004 y de que los imputados rindieran sus respectivas declaraciones, las que fueron dadas todas, a partir del mes de octubre de 2004. Si bien es cierto que en principio operó la reducción del plazo de prescripción a la mitad al momento de acaecer el primer acto interruptor de la prescripción (declaración de los imputados, al tenor del numeral 33 inciso a) del Código Procesal Penal), oportunidad en la que el proceso, oportunidad en la que el proceso se tramitaba como ordinario, lo cierto es que los justiciables han sido conocedores desde ese mismo momento y desde que se publicó la reforma procesal citada, en tesis de principio, de que dicha reducción podía quedar sin efecto si el proceso pasaba a tramitarse como complejo, puesto que el numeral 376 así lo establecía.

De manera que, la vigencia del efecto reductor del plazo de prescripción siempre estuvo sujeta a que el proceso continuara tramitándose como ordinario y que la misma se perdería si se aplicaban las reglas de la tramitación compleja, salvo, claro está, que el plazo de prescripción se hubiera cumplido antes de dicho evento, porque en tal supuesto, se habrían configurado todas las circunstancias que extinguirían la acción penal por prescripción, de acuerdo con las reglas del procedimiento ordinario, y de esa forma debería declararse, en el tanto la situación jurídica del imputado llegó a consolidarse plenamente, sin que la aplicación de la tramitación compleja pudiera revertir dicho estado de cosas, respecto del cual la posterior resolución que lo reconozca, tiene efectos declarativos y no constitutivos.» «Así las cosas, la eliminación del efecto reductor a la mitad, del plazo de prescripción en aquellas causas cuyo plazo de prescripción en curso no se hubiera cumplido al momento de quedar firme la declaratoria de tramitación compleja, no constituye ninguna aplicación retroactiva del numeral 376 del Código Procesal Penal, ni de la resolución judicial que lo aplica y tampoco una afectación al principio de seguridad jurídica, porque los imputados, desde el inicio del proceso, supieron a que atenerse al respecto» (Tomo XXVII, folio 13364).

Ese razonamiento contraviene las normas constitucionales citadas, su conclusión es falaz, pues la sola vigencia del párrafo final del artículo 376, desde que se agregó mediante Ley N° 8146 en el año 2001, no implica que los imputados pudieran prever -mucho menos que tuvieran que aceptar o “atenerse”- que el tribunal le diera una interpretación y aplicación retroactiva a esa norma para “revertir” el efecto de un acto interruptor cumplido antes de que se dictara la resolución que dispuso que el asunto fuera de tramitación compleja. Si el propio tribunal de juicio admite que la prescripción de la acción penal “es una sanción a la inercia en el trámite y juzgamiento” (cfr. Sentencia, folio 788), no se entiende como opta por una interpretación que burla el sentido de esa causa de extinción de la acción penal, dando al acusador y al propio tribunal la posibilidad de “revertir” ese efecto para que renazca, por así decirlo, la acción penal y por esa vía eludir la sanción procesal.

Sin embargo, con ese criterio es que en esa resolución del 14 de mayo de 2010 se analizó el caso de cada uno de los imputados, resolviendo lo siguiente:

«Por unanimidad, se rechazan las excepciones de prescripción formuladas a favor de los acusados [Nombre004]; [Nombre001]; [Nombre007], [Nombre009], [Nombre018], [Nombre015] y [Nombre021]. Se reservan para el momento de la sentencia las excepciones de prescripción interpuestas a favor de [Nombre024] y [Nombre012].» (Tomo XXVII, folio 13407 frente y vuelto).

Al dictar la sentencia el tribunal retoma el tema en el Considerando II de la sentencia, acápite A), que titula “Excepción de prescripción de la acción penal a favor de los imputados [Nombre007], [Nombre021], [Nombre024] y [Nombre012]” y resuelve con el mismo criterio (aunque esta vez por mayoría de votos, pues el juez Camacho Morales salvó el voto sobre este extremo), reiterando que no se trata de una aplicación retroactiva de la ley, sino de “la inmediata vigencia de una estipulación procesal en una causa penal en curso” pendiente de ser resuelta, haciendo una alambicada argumentación en torno a que el principio de irretroactividad únicamente aplica para la ley penal sustantiva, no así para normas o institutos procesales, como la prescripción (cfr. sentencia, páginas 786 a 800), argumentación que en todo caso -para esta cámara-no justifica ni autoriza desconocer el efecto jurídico (inmediato valdría decir) que produjo la indagatoria según la legislación vigente al momento en que se producto ese acto interruptor. El juez Camacho Morales, como se dijo antes, salvó el voto sobre esta cuestión, modificando el criterio que había compartido anteriormente con sus compañeras en la resolución del 14 de mayo de 2010 (cfr. voto salvado, sentencia, páginas 1997 a 2012) y se apoya en jurisprudencia que viene al caso mencionar. En primer lugar, cita a la Sala Constitucional, según la cual:

«Al ser el proceso una secuencia de actos singulares reglados previamente por ley, la nueva legislación puede perfectamente regir los actos que sean llevados a cabo con posterioridad a su vigencia, y la ley anterior rige los actos realizados bajo su vigencia formal, con anterioridad a su derogación, para que cada acto sea valorado conforme a la ley vigente a la época de su realización» (Sala Constitucional, N° 4397-99 de las 16:06 horas del 8 de junio de 1999).

También menciona una sentencia del Tribunal de Casación, que se refiere propiamente a la aplicación del artículo 62 de la Ley N° 8422, y dice:

«Tal norma es eficaz únicamente a partir de su entrada en vigencia para los casos en que sobrevenga alguno de los actos interruptores que la normativa procesal prevé y siempre que el término no se hubiese ya reducido con anterioridad conforme estaba previsto, ya que las actuaciones se rigen por la ley procesal que se encuentra vigente al momento en que se producen y no a las que ya habían ocurrido. En otras palabras no podría restablecerse la totalidad del plazo de la prescripción a partir de una norma que aún no se hallaba vigente para el momento en que, conforme a la legislación que sí regía, se produjo una causal con efecto reductor» (Tribunal de Casación Penal, N° 2006-0132 de las 10:30 horas del 23 de febrero de 2006).

Conforme a todo lo expuesto en este acápite, considera esta cámara que el tribunal de juicio aplicó erróneamente las reglas concernientes a la prescripción de la acción penal, pues en este caso sí operó la extinción de la acción penal en favor del Dr. [Nombre012]. Los suscriptores de esta sentencia consideran que el Ministerio Público solicitó tardíamente la aplicación de las normas especiales previstas para el llamado «Procedimiento para asuntos de tramitación compleja» previsto en los artículos 376 a 379 CPP, si lo hubiera solicitado oportunamente hubiera podido evitar que el plazo de la prescripción se redujera a la mitad. Es otro detalle que, junto a la forma en que se concedió el criterio de oportunidad a [Nombre026], denota la deficiente gestión de la acción penal que hubo en este caso por parte del Ministerio Público. Por todas las razones indicadas, se declara con lugar el recurso de apelación, se declara extinguida la acción penal por haber operado la prescripción.

Se declara la nulidad de la prueba documental N° 588 y todos los elementos probatorios que de esta dependen directamente. Se anula la sentencia condenatoria penal dictada en contra de don [Nombre012] y en su lugar se le absuelve directamente de toda pena y responsabilidad, ya que por la nulidad de la prueba esencial y la prescripción resulta imposible ordenar la reposición del juicio o de la resolución en lo que concierne a la acción penal, por lo que se debe resolver directamente (artículo 465 párrafo tercero del CPP) sobre la base de que no se demostró su culpabilidad mediante sentencia firme, conforme a artículo 39 de la Constitución Política. La sentencia impugnada se mantiene incólume en cuanto lo absolvió por cuatro delitos de Enriquecimiento ilícito. En cuanto al aspecto civil de la sentencia, debe estarse a lo que se dirá en el considerando VI, en el cual se resuelve el recurso que el licenciado Cristian Arguedas Arguedas interpuso en favor del Dr. [Nombre012].

Por la forma en que se ha resuelto, resulta innecesario hacer pronunciamiento sobre los demás reclamos que el quejoso plantea en su recurso de apelación, ya que sus correspondientes pretensiones han sido atendidas.

III. RECURSO DEL LIC

RAFAEL ENRIQUE GAIRAUD SALAZAR.- El Lic. Gairaud Salazar, abogado defensor de don [Nombre012], ha expresado su disconformidad con la sentencia a través de diversos escritos, el primero de ellos es un recurso de «apelación» que presentó el día 2 de junio de 2011 (cfr. Tomo XXXV, folios 16894 a 16905). El segundo es un recurso de «casación» que presentó el día 4 de agosto de 2011 (cfr. Tomo XXXVII, folios 17840 a 17907). El tercero es un «recurso de apelación de sentencia» (cfr. folios 172768 a 172837), mediante el cual el Lic. Gairaud Salazar adecua sus anteriores reclamos a un recurso de apelación de sentencia penal, de conformidad con el Transitorio III de la Ley N° 8837 de 3 de mayo de 2010 («Creación del recurso de apelación de la sentencia, otras reformas al régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal»), solicitando incluir aquella primera apelación que interpuso inicialmente.

Advierte que en el voto de mayoría de las juezas Rosaura García Aguilar e Ileana Méndez Sandí (el juez Jorge Camacho Morales salvó el voto) hay evidentes errores en la determinación de los hechos, en la incorporación y valoración de la prueba, la fundamentación es contraria al debido proceso y la pena que le fue impuesta a su patrocinado es desproporcionada y contraria a derecho, porque la conducta acreditada es atípica del delito que se le imputa de Instigación a Corrupción agravada. Acusa la inobservancia de los artículos 22, 142, 175, 178, 184, 204. 361, 363 inciso b) y 369 incisos c), d) y j) del Código Procesal Penal; 62 de la Ley contra la corrupción y el enriquecimiento ilícito; de la Declaración Universal de Derechos Humanos y de la Convención Americana sobre Derechos Humanos («Pacto de San José»); y de los artículos 47, 71, 340 y 342 del Código Penal. Solicita que se declare ineficaz e invalida la sentencia y se ordene el reenvío para su nueva sustanciación, o que directamente se dicte la absolutoria de [Nombre012], por los siguientes motivos.

• A)Falta de fundamentación y violación de la sana crítica racional. La mayoría no fundamentó su decisión. Tampoco explicó el valor asignado a gran parte de la prueba, que no fue siquiera analizada, sino simplemente mencionada por la resolución, a pesar de la solicitud expresa de la defensa de hacerlo. La mayoría dio valor de plena prueba a la declaración del imputado colaborador [Nombre026], omitiendo considerar que su dicho no fue corroborado por algún otro medio de prueba. Tampoco se aprecia que, según el propio dicho de [Nombre026] -en el sentido de que él acepta en principio la propuesta de corrupción planteada en el restaurante [...]-, es evidente deducir que él estaba determinado a delinquir desde el momento mismo que aceptó la propuesta, mucho antes de la supuesta reunión con [Nombre012], y que lo que supuestamente requería de este último era que lo ayudara en caso de que se "complicara el asunto", cosa que nunca ocurrió, por lo que nos relata [Nombre026].

Como [Nombre026] había aceptado la oferta de dádiva es evidente entonces que [Nombre026] ya estaba determinado antes de hablar supuestamente con [Nombre012], por lo que no es posible tener a este último como instigador de nada. La mayoría da por cierto todo lo que declara [Nombre026] y ni siquiera precisa en su totalidad las circunstancias de modo, tiempo y lugar en que supuestamente se consuma el delito, en qué consistiría la supuesta ayuda de [Nombre012]. Se omite resolver los cuestionamientos que la defensa hizo de la aplicación del criterio de oportunidad a favor de [Nombre026], alegando falta de competencia, lo que es no solo ilegal sino una renuncia de las competencias de la autoridad recurrida, dado que el tribunal está obligado a resolver todas las cuestiones debatidas. [Nombre026] no podía beneficiarse de dicho criterio de oportunidad pues su reprochabilidad es igual o mayor que la que se atribuye a su representado: "...esto se evidencia -dice el quejoso- cuando en el análisis de la acción civil el propio Tribunal, por unanimidad señala la imposibilidad de establecer una sola solidaridad entre los supuestos partícipes, señalando cadenas independientes de responsabilidad, apareciendo [Nombre026] en dos de ellas, mientras que mi representado en una sola, esto para derivar de la propia sentencia la mayor reprochabilidad de [Nombre026], sin contar que [Nombre026] es señalado como el AUTOR PRINCIPAL y mi representado un simple partícipe, que [Nombre026] tenía el DOMINIO DEL HECHO de manera absoluta y mi representado no, que [Nombre026] cometió muchos más delitos que el relacionado con la contratación de las 400 mil líneas de telefonía celular, lo que evidencia que es claro y diáfano que [Nombre026] no era susceptible de beneficiarse de la impunidad acordada por el criterio de oportunidad pues no tiene una menor reprochabilidad que mi representado, nada de esto lo conoció el Tribunal en su integración de mayoría, pues ilegalmente incumplió su deber de contralor de legalidad de los actos del debate y se negó a conocer la procedencia o no del instituto, así como que la declaración de [Nombre026] resultaba inválida..." Igualmente se realiza una errónea aplicación del artículo 62 de la Ley contra la corrupción y el enriquecimiento ilícito, aprobada mucho después de que don [Nombre012] dejó de ser funcionario público y por tanto no le era aplicable retroactivamente, como ilegalmente hizo la mayoría que impuso condenatoria en este proceso, entrando en contradicción con una resolución interlocutoria previa que ellas mismas habían dictado, señalando que para el caso de [Nombre012] lo único que debía hacerse era la determinación precisa del tipo penal aplicable.

También reprocha el rechazo de la argumentación de la defensa en torno a los hechos por los que fue indagado [Nombre012]: "El tribunal no entra a analizar el contenido de la protesta de la defensa que señaló que el señor [Nombre012] fue indagado con base en la declaración inicial de [Nombre026], algo que él mismo reconoce en el debate, en la que alegó en su beneficio haber incurrido es la recepción de dádivas por un acto cumplido, mientras que la acusación y el debate versó sobre un supuesto acto de Corrupción Agravada, evidentemente se trata de hechos absolutamente diversos, unos por los que fue indagado nuestro representado y otros por los que es juzgado, violando los principios de inviolabilidad de la defensa, debido proceso e intimación, el voto de mayoría evade el problema con un absurdo que el imputado podía ampliar su declaración sobre estos otros o nuevos hechos, lo que repito es absurdo pues la carga de la imputación corresponde al órgano acusador no a la defensa, por lo que el problema no es resuelto y subsiste e hecho incuestionable de que el expresidente no fue indagado por los hechos por los cuales se le juzgó.

En su primera declaración [Nombre026] nunca dice que recibiera una propuesta de corrupción, que la aceptara y que por eso favoreció a ALCATEL, por una dádiva posterior, como es su declaración inicial es indagado nuestro representado, pero luego se le juzga por hecho que [Nombre026] relató después y por los que mi representado NUNCA FUE INDAGADO...", lo que invalida todo el proceso. La prueba permite sostener la inexistencia de una actuación ilícita de [Nombre012], pero el tribunal, de forma absurda e ilógica, le asigna a la versión espuria de [Nombre026] el carácter de plena prueba y le da plena credibilidad. En cuanto a la pena impuesta es evidente la ausencia de fundamentación en el voto de mayoría, es absurdo imponer la pena máxima a un simple partícipe cuando al autor principal se le otorga impunidad absoluta. Como prueba solicita a) los vídeos del debate realizado, para acreditar la versión real de [Nombre026] en juicio y la aceptación del momento de consumación del delito; b) Se reciba declaración del imputado condenado [Nombre027] para que se refiera a la existencia o no de una propuesta corruptora por parte de Alcatel (cfr. apelación en el Tomo XXXV, folios 16894 a 16905).

• B)Violación al debido proceso en la fijación de los hechos. Si el imputado con criterio de oportunidad, [Nombre026], reconoce que "aceptó en principio" la propuesta que le realizaron a él funcionarios de Alcatel (hecho probado 88), el delito se consumó, no es posible la supuesta instigación que se atribuye a [Nombre012] en un momento posterior. El hecho probado, en todo caso, no se puede tener por acreditado con el solo dicho del imputado colaborador [Nombre026]. Si el tribunal tenía duda sobre el significado de la locución "en principio", se debió optar por la interpretación más favorable al imputado, por aplicación del principio in dubio pro reo (cfr. apelación, Tomo XXXIX, folios 172770 a 172772). C) Violación del debido proceso en la incorporación y valoración de la prueba. Esto así porque se toma la declaración de [Nombre026] como un medio de prueba y no como un medio para obtener prueba, al incorporarla se le da valor de plena prueba y sobre su solo dicho se tienen por acreditados hechos de relevancia, como son la supuesta reunión y la supuesta aceptación que atribuyen a [Nombre012] (cfr. apelación, folios 172772 a 172773).
• D)Violación al debido proceso en la fijación de la pena. La mayoría confirma la impunidad de [Nombre026] y en cambio impone la pena máxima a [Nombre012] por una conducta que ni siquiera es constitutiva del delito de instigación, pero aún si se considera que es delictiva, es evidente que constituyó una participación mínima, por lo que la pena no refleja los criterios de proporcionalidad y razonabilidad establecidos en nuestra ley, por lo que solicita reducirla a la mínima y conceder el beneficio de ejecución condicional de la pena (cfr. apelación, folios 172773 a 172774). E) Falta de fundamentación de la sentencia dictada por la mayoría, los hechos probados N° 71 a 75 no tienen otra prueba que el sólo dicho del imputado colaborador [Nombre026], que no fue corroborado o validado por ningún medio de prueba lícito que se obtuviera por su medio (como "fuente de prueba"). No luego le "ordenó" a [Nombre026] gestionar pagos ante Alcatel.

En el caso del coimputado [Nombre018], hay varios elementos supuestamente indiciarios que corroboran el dicho de [Nombre026] acerca de su participación, pero no sucede así respecto a [Nombre012], pues no se hace alusión a algún elemento de prueba que de manera directa o indiciaria corrobore lo que [Nombre026] dice. Este declaró como imputado, disfrutó de la totalidad de los derechos y garantías de esa condición, siendo asistido por un defensor y permitiéndole abstenerse de declarar ante los cuestionamientos que le hicieron, incluso que su defensor le dijera al oído las respuestas y él simplemente las repitiera, algo que en cualquier modelo legal es un absurdo, pues el defensor no puede responder por el imputado (solicita que se vea el vídeo de declaración de [Nombre026] ante interrogatorio de las defensas). Resulta claro que [Nombre026] buscó su impunidad a toda costa, declarando contra terceros, de manera que la suya fue una declaración interesada, por lo que necesariamente se debió contar con con otros medios de prueba que sustentaran su dicho. [Nombre026] cambió su versión de 31 de setiembre del 2004, cuando confesó una presunta recepción de dádivas como él mismo lo señala en su declaración en juicio transcrita en la sentencia cuando señala: "Sí dije en esa declaración que el dinero o premio de Alcatel lo recibí posteriormente a la adjudicación en junta directiva, creo que esa versión la di el 30 de setiembre de 2004, no recuerdo si se la consulté a mi abogado.

Lo que yo tengo es un barniz jurídico, pero ya expliqué aquí que la verdad es otra, ya eso lo había indicado aquí, lo que dije aquí es lo cierto. Yo no mentí, sino que simplemente en aquel momento traté de cubrirme o auto protegerme, pero luego fui precisando. Alcatel me ofreció un 1.5% o 2% [...] En esa declaración del 30 de setiembre admití mi responsabilidad y di una detallada descripción de ellos, en un afán de autojustificarme indiqué que el ofrecimiento de materializaría con posterioridad, pero luego fui aclarando el punto..." [Sentencia, páginas 543 a 544], la cual luego cambia para confesar una supuesta Corrupción agravada por Cohecho impropio, declaración que precisamente se da para otorgarle un procedimiento abreviado, con tan solo cuatro años de pena privativa de libertad, cuando la jurisprudencia imperante partía del principio según el cual el "arresto domiciliario" sí se abonaba a la pena, de modo tal que [Nombre026] habría cumplido la mitad de la pena y podría solicitar la aplicación del beneficio del artículo 55 del Código Penal, para el momento que brinda su segunda versión de los hechos, sino que dicho arresto domiciliario, extrañamente, cuando ningún otro imputado sufría de medidas cautelares que limitaran su libertad de tránsito, para el imputado colaborador sí se mantuvieron hasta el momento que la pena posible a imponer, según esa jurisprudencia hoy totalmente desacreditada por la Sala Tercera, se hubiera encontrado totalmente cumplida. [Nombre026] obtiene la aplicación a su favor del criterio de oportunidad en virtud a esa declaración nueva, con ello obtiene impunidad no solo del delito que la Fiscalía vincula con [Nombre012], sino de siete u ocho delitos más, algunos relacionados con la propia empresa Alcatel por dineros recibidos producto de corrupción [cita la declaración del perito del OIJ, [Nombre036], que declara que [Nombre026] recibió dinero antes y después de las cuatrocientas mil líneas, si que se haya establecido que él requiriera apoyo externo para recibir esos dineros], como lo señaló la Fiscalía durante el proceso, para luego desdecirse, pero para un momento en el que todos estos delitos se encuentran prescritos o en proceso de prescribir. [Nombre026] no suministró ningún medio de prueba independiente que suministrara su dicho, no es cierto que desde su primera declaración manifestara una evidente finalidad de colaborar con la Administración de Justicia, porque lo cierto es que en alguna de sus dos versiones mintió porque eran opuestas entre sí.

En la primera versión dice que los funcionarios de Alcatel lo contactaron para ofrecerle una dádiva luego de la adjudicación de las cuatrocientas mil líneas, en su segunda versión dice que lo contactaron antes de la adjudicación: "¿Cómo decir -cuestiona el licenciado Gairaud Salazar- que [Nombre026] desde el inicio colaboró con la Justicia, si luego declarará, para obtener el beneficio del proceso abreviado o el criterio de oportunidad, que fue contactado antes de la adjudicación y se le ofreció la dádiva, para un momento en el que disfrutando del arresto domiciliario se le ofreció primero un abreviado con una pena exigua (mientas a mi representado se le impuso el máximo de la pena como supuesto instigador, y luego un criterio de oportunidad que le confiere IMPUNIDAD ABSOLUTA, al identificarlo por la Fiscalía en conclusiones, como AUTOR DIRECTO CON PLENO DOMINIO DEL HECHO. En tal sentido debemos decir que si ambas versiones son diametralmente distintas, en una de ellas [Nombre026] miente.

Si es en la primera, su interés no era colaborar con la Administración de Justicia, sino entorpecerla, obstaculizarla, y si es en la segunda, igualmente miente de manera interesada, para obtener un beneficio y así el cuestionamiento, presuntamente excluido por las juezas de mayoría, de que sus intereses se declarar son espurios queda plenamente corroborada, frente a la ingenua y parcializada versión del voto de mayoría." Los hechos n° 85 a 93 que se tienen por acreditados en contra de [Nombre012] carecen de fundamentación legítima, porque no basta con el solo dicho de [Nombre026], sino que e tribunal de juicio requería contar con prueba independiente que corroborara la versión del colaborados. La Sección de Delitos Económicos y Financieros del OIJ determina que las supuestas dádivas entregadas por [Nombre026] a [Nombre012] no corresponden al 60% que según [Nombre026] se pactó, lo que constituye una "contra-indicio" que permite sostener que [Nombre026] no dice la verdad.

Las señoras juezas desconocen la naturaleza y aplicabilidad del criterio de oportunidad («testigo de la corona») y yerran al dar carácter de prueba absoluta al dicho de [Nombre026], la supuesta participación de [Nombre012] no fue parte del acuerdo de corrupción habido entre [Nombre026], [Nombre035] y [Nombre015], desconociendo el hecho de que en su declaración [Nombre026] señala que dicha reunión se verifica en el mes de noviembre del 2000, no en la primera semana de diciembre. La mayoría trató de acomodar la realidad a lo que [Nombre026] dijo, violentando el principio -aceptado por ellas mismas- de que la versión de [Nombre026] debe ser corroborada en las cuestiones de hecho de relevancia penal. La mayoría tampoco se pronunció sobre otro "contra-indicio" que planteó la defensa en conclusiones, que desacredita a [Nombre026], que las reuniones en [...] y en casa de [Nombre012] no pueden haber sido los días 3 y 4 de diciembre de 2000, porque el día 5 de de diciembre [Nombre026] concurrió a votar en el Consejo Directivo del ICE de manera contraria a la exigido por Alcatel (votó por una contratación directa en lugar de una contratación abierta exclusivamente a favor de Alcatel para el procedimiento de compra), lo que también permite ver que la declaración de [Nombre026] no es susceptible de ser considerada veraz ni corroborada por algún medio de prueba directa o indirecta, no se puede considerar como un testimonio, pues es un imputado que tuvo un interés directo en el resultado del proceso.

Solicita que se anule la sentencia y se ordene juicio de reenvío (cfr. apelación, folios 172774 a 172800). F) Falta de fundamentación de la sentencia porque omitió analizar y pronunciarse sobre los siguientes cuestionamientos que planteó la defensa: a.- Que el día 5 de de diciembre [Nombre026] concurrió a votar en el Consejo Directivo del ICE de manera contraria a la exigido por Alcatel (votó por una contratación directa en lugar de una contratación abierta exclusivamente a favor de para el procedimiento de compra), lo que desacredita lo que dice [Nombre026] de las supuestas reuniones en "[...]" y en casa de [Nombre012] y pone en evidencia que para el 5 de diciembre no existía tal pacto corruptor, que [Nombre026] mintió, que no ocurrió la presunta reunión en casa de [Nombre012], en que la mayoría sustenta la supuesta responsabilidad penal de don [Nombre012] (cfr. apelación, folios 172800 a 172803). b.- El efecto que un voto de [Nombre027] en el Consejo Director tiene sobre la supuesta existencia de un pacto corruptor entre Alvatel y varios directivos del ICE y que es el sustrato de supuesta realidad que según la mayoría da credibilidad a lo dicho por [Nombre026].

"La sentencia tiene por probado que este proceso de compra de conciencias por parte de Alcatel se da entre abril y agosto del año 2000 y que mediante esta acción atribuida a los imputados que eran funcionarios de Alcatel ([Nombre035] y [Nombre015]) se logra matricular al menos a tres directores, dos nombrados por mi representado ([Nombre027] y [Nombre026]) y uno con relación de cercanía con él aunque nombrado por el Presidente [Nombre051] ([Nombre004]). En suma, para tener por veraz la declaración de [Nombre026] y el proceso de seducción al cual afirma haber sido sometido por los funcionarios de Alcatel, el voto de mayoría tiene por acreditado al menos que para finales del año 2000 tres directivos del ICE se encuentran comprados por la transnacional francesa. No obstante el mismo voto de mayoría señala, al relatar las diferentes sesiones del Consejo Director del ICE, relacionadas con telefonía móvil, que para el mes de marzo del año 2001, [Nombre027] realiza acciones contrarias a Alcatel, concretamente solicita reconsiderar y revocar una votación anterior que había determinado adquirir de la empresa Alcatel 160,000 líneas de tecnología GSM, no contando [Nombre027] con los votos suficientes para lograr se acoja dicha reconsideración [...] Si el tribunal en su voto de mayoría tiene esto por acreditado con fundamento en la prueba documental que incorpora las actas del Consejo Directos del ICE y ha señalado que para finales del 2000 [Nombre027] era pieza, necesariamente debía ser pieza comprada por Alcatel, para corroborar así la versión de [Nombre026], es evidente que resultaba esencial, no solo para acreditar la existencia del plan de corrupción, sino la veracidad misma de lo dicho [Nombre026], resolver, como solicitamos, este tema concreto el cual fue evadido de manera evidente por la mayoría que ni siquiera se plantearon en su "fundamentación" este aspecto, reitero, expresamente requerido por la defensa y que se pidió fuera resuelto con el fin de hacer evidente la imposibilidad de dar credibilidad a la versión del confeso [Nombre026].

Ambos planteamientos se le hicieron al Tribunal y este no resolvió fundamentando el contenido de las propuestas de la defensa" (cfr. apelación, folios 172803 a 172805). c.- [Nombre026] da en el proceso dos versiones de los hechos, la primera el 30 de setiembre del 2004, en la que dice haber recibido una dádiva de Alcatel sin promesa anterior y otra de mayo del 20005, dada a propósito de la aplicación de un procedimiento abreviado a su favor que luego deriva en un criterio de oportunidad, en la que señala que la propuesta anterior a la adjudicación, en la que se comprometía a tres condiciones (que, por lo dicho anteriormente, incumplió el 5 de diciembre de 2000) y en la que la supuesta participación de [Nombre012] no se limita ya a recibir parte de esas dádivas, sino a intervenir supuestamente en el proceso de determinación de delinquir por parte de [Nombre026]. Ambas versiones son contradictorias, no pueden ser ambas verdaderas, pero el tribunal no analiza el cuestionamiento que hace la defensa acerca de la credibilidad de [Nombre026] (cfr. apelación, folios 172805 a 172806). d.- También planteó la defensa que, ante la contradicción obvia de las versiones de [Nombre026], resultaba necesario determinar cuál era verdadera y, si esto era imposible, optar por la más beneficiosa para las partes, en aplicación del principio in dubio pro reo.

Pero la mayoría omite resolver ese planteamiento, que tiene consecuencias decisivas sobre el dispositivo, porque "...si el delito era Recepción de Dádivas y mi representado, en la versión del 30 de de setiembre no interviene en la decisión de [Nombre026] de delinquir, entonces la conducta reprochable habría sido, como abundamos en las conclusiones en señalar, hipotéticamente una simple recepción de dádivas por parte de mi representado, la cual resultaba atípica por cuanto se habrían recibido cuando mi representado no era funcionario público, elemento esencial del tipo objetivo y por tanto serían impunes, o al menos habría operado la prescripción" (cfr. apelación, folios 172806 a 172807). G) Violación a las reglas de la sana crítica, porque la sentencia no es coherente sino contradictoria sobre aspectos esenciales que tienen que ver con la credibilidad que se puede dar a la versión le era exigido cumplir por parte de Alcatel dentro de una presunta oferta de corrupción realizada a él en "[...]" en Alajuela.

"Por un lado sostiene la resolución, en el análisis del fondo, que la versión de [Nombre026] es completamente creíble y que en sede de la existencia de la propuesta ilícita, está acreditado que a [Nombre026] le ofrecen un porcentaje del valor de la contratación de cuatrocientos mil líneas de telefonía celular, esto a cambio de que cumpliera tres condiciones:

• 1)Protegiera la migración a tecnología GSM,
• 2)protegiera que dicha migración se realizara mediante un procedimiento de compra abierto licitatorio y
• 3)que una vez que las áreas técnicas recomendaran la propuesta de Alcatel, él la votara favorablemente. No obstante lo dicho, el propio voto de mayoría reconoce que la determinación de migrar fue determinada por las áreas técnicas del ICE y en ellas, lo declara el propio [Nombre026] él no tenía injerencia, ni nunca habló o procuró nada en el sentido de que se migrara. Segundo, el propio voto de mayoría reconoce que la decisión de cómo adquirir, mediante compra directa o procedimiento abierto o concursal, NO LE CORRESPONDÍA y NO LE CORRESPONDIÓ determinarlo al ICE, mucho menos a su Consejo Director y menos a [Nombre026] sino a la Contraloría General de la República [...] De lo anterior deviene una evidente contradicción en el voto de mayoría, o es que [Nombre026] se comprometió y cumplió las exigencias de Alcatel como parte de la propuesta de corrupción que se le hizo o es la Contraloría en su caso y las instancias técnicas las que determinaron, no solo le modo de contratación, sino la migración misma a la tecnología GSM, pero ambas proposiciones no pueden ser al mismo tiempo, ambas verdaderas. Ambas proposiciones son evidentemente contradictorias. O [Nombre026] dice la verdad y el tenía control, algún grado de control, sobre esos temas, por esto se le exigen su cumplimiento para recibir la dádiva o miente y esto, como acepta el Tribunal en voto de mayoría, estaba en manos de otros entes en los que o sobre los que [Nombre026] no tenía ningún control o influencia, pero ambas proposiciones no pueden ser al mismo tiempo verdaderas. El Tribunal señala, como dije, en forma contradictoria, la credibilidad y la falta de credibilidad de la declaración de [Nombre026] sobre aspectos medulares de su supuesta intervención en la contratación cuestionada, más aun de su posibilidad de cumplir las exigencias requeridas presuntamente por Alcatel, lo cual hace contradictoria la fundamentación, anulándose recíprocamente ambos argumentos y dejando la resolución sin una adecuada fundamentación. Existe una clara contradicción en el análisis que se hace de los elementos, dado que como dijimos, por el principio de no contradicción se sostiene que dos juicios opuestos entre sí no pueden ser ambos al mismo tiempo verdaderos, dos juicios contrastantes entre sí, se anulan. Igualmente resulta contradictoria la resolución en cuanto a que tiene por probado que para el cuatro de diciembre del 2000, [Nombre026] había recibido la propuesta de corrupción de Alcatel, había consultado a mí representado y había sido determinado a delinquir, este tema de la consumación lo veremos adelante, pero es evidente que el Tribunal funda la responsabilidad de mi representado en el hecho de que en la reunión supuestamente realizada el 4 de diciembre en su casa, determinó a [Nombre026] a delinquir, no obstante tiene por acreditado, sin duda alguna que el cinco de diciembre, al día siguiente de que [Nombre026] fue determinado para delinquir, vota favorablemente extremos contrarios al supuesto acuerdo ya aceptado, primero vota por una Compra Directa, cuando Alcatel le exige una proceso de contratación abierto y además no vota a favor de Alcatel, sino de toda su competencia. Puesto que resultan totalmente contradictorias dichas afirmaciones no pudiendo ser ambas al mismo tiempo verdaderas y resultando ello en que la fundamentación es incoherente y por tanto nula y susceptible de apelación, expresamente solicitamos al Tribunal de Apelaciones, se declare con lugar este motivo de apelación, anulando la resolución recurrida por fundarse en proposiciones contradictorias de las cuales hace o pretende derivar responsabilidad penal de mi representado" (cfr. apelación, folios 172808 a 172811). H) Violación a las reglas de la sana crítica en la determinación y fundamentación de los hechos. En el presente caso la resolución viola flagrantemente las regla lógica de la derivación, al estimar, con fundamento en la prueba, que existió una conducta ilícita de mi [Nombre012], a pesar de que todos los elementos probatorios lo que señalan, incluso el mismo [Nombre026], es que no existió ninguna conducta por parte de mi representado que favoreciera de modo alguno a Alcatel o su contratación por parte del ICE. Según la versión de [Nombre026], él determina en su casa, luego de recibir la propuesta de los funcionarios de Alcatel, que el asunto era muy complejo y que necesitaba contar con el apoyo, dice, del Presidente, para seguir adelante, pero que nunca requirió de solicitarle nada porque el procedimiento "iba muy fluido". Lo anterior resulta esencial para corroborar dos cosas, no existe técnicamente, en ninguno de los elementos de prueba incorporados al debate, uno solo del cual derivar legítimamente la existencia de una conducta ilícita de mi representado, por el contrario, como señalábamos anteriormente, cuando [Nombre026] refiere su participación se limita a señalar que él consulta presuntamente al Presidente por si se requería la ayuda de una autoridad superior, lo que confiesa nunca fue necesario. El propio voto de mayoría lo tiene así probado [alude al hecho probado n° 91]; aun en el supuesto de que [Nombre026] les informara a los funcionarios de Alcatel que requería de una autoridad superior, en ninguna de sus versiones señala que les informara que se trataba del Presidente de la República, de hecho esta decisión de comunicárselo supuestamente al Dr. [Nombre012] surge luego de que medita el tema en su casa y simplemente para el caso de que requiriera de alguna ayuda que reiteramos, no fue necesaria, según dice [Nombre026] (cfr. apelación, folios 172811 a 172813). I) Violación de las reglas de intimación al imputado. En sus conclusiones del debate la defensa planteó el tema de que [Nombre012] no fue debidamente intimado durante la etapa investigación por los hechos por los que finalmente se le acusa y condena. "El fundamento de tal cuestionamiento -señala el licenciado Gairaud Salazar- radica en el hecho de que dado que la Sala Constitucional ha declarado que la Intimación es parte del Debido proceso (votos 9879-2001 y 1739-92. Sala Constitucional) y consiste en que el imputado no solo debe ser informado de la calificación provisional que se ha hecho de los hechos investigados o conocer la prueba con que cuenta el Ministerio Público en ese momento, sino fundamentalmente, asociado como señala Llobet, a su derecho de abstención, a conocer los hechos concretos por los que se le investiga. Evidentemente, como resulta lógico, los hechos por los cuales en su oportunidad se intima al imputado podrían variar y esto obliga a que en caso de que esa variación afecte o haga variar lo posible responsabilidad, es obligación del Ministerio Público volver a indagar al imputado, intimándole de los nuevos hechos que se le atribuyen [...] Esto precisamente es lo que se planteó al tribunal, mi representado fue indagado el día 15 de octubre con fundamento en los hechos que [Nombre026] había aceptado, consistentes como se le acreditó al Tribunal en conclusiones, documentalmente, en la afirmación de que él, [Nombre026], luego de la adjudicación a Alcatel habría recibido sin promesa anterior una dádiva. En esos hechos [Nombre026] no señala que requiriera ayuda de mi representado o que se hubieran dado la reunión con funcionarios de Alcatel en '[...]' ni en casa de mi representado. Se le intimó así que según [Nombre026], de las dádivas recibidas una parte se la da a mi representado. No obstante cuando [Nombre026] cambia su versión en mayo del 2005, a propósito del ofrecimiento de un procedimiento abreviado, luego usado para beneficiarlo con un criterio de oportunidad, [Nombre026] varía radical y sustancialmente los hechos y señala que su versión original, dada, como señaló en debate, por su conocimiento o barniz jurídico y como mecanismo de auto justificación y de búsqueda de una menor responsabilidad, debe ser entendida en el sentido no de que recibió la dádiva sin promesa anterior, sino que hubo una reunión en '[...]' en Alajuela en la cual [Nombre035] y [Nombre015] le proponen el pago de una dádiva a cambio del cumplimiento de tres condiciones de ayuda a favor de Alcatel y que el pareciéndole atractiva y aceptando en principio la propuesta, luego de meditarlo en su casa, determina consultárselo al Presidente de la República, el Dr. [Nombre012]. Evidentemente entre unos y otros hechos existe una grandísima diferencia, en un caso se trata de una dádiva sin promesa anterior y sin actuación de mi representado, salvo a su vez la recepción de presuntas dádivas relacionadas con el dinero recibido por [Nombre026] de Alcatel y en la segunda versión existe una supuesta participación 'previa' de mi representado, con reunión incluida, en la que se le informa de la propuesta de corrupción hecha a [Nombre026] y la favorece. El tema es entonces que dado que a mi representado solo se le intimó por los primeros hechos y luego nunca se ordenó una nueva indagatoria para intimarlo por los nuevos hechos relatados por [Nombre026], existe una violación flagrante de sus derechos constitucionales y legales, insubsanable por tratarse de la violación de derechos fundamentales sin embargo (Art 178 del CPP), sorprendentemente el Tribunal afirma, en su voto de mayoría, que no existe vicio alguno e invirtiendo las responsabilidades procesales dice por un lado que era obligación de mi representado o su defensa solicitar la nueva intimación, lo cual es un absurdo que atenta contra el principio constitucional de no auto-incriminación y segundo porque la competencia sobre el control del proceso corresponde al Ministerio Público. Es interés del Ministerio Público que se cumpla el acto de la intimación, dado que por ley se le confirió esa facultad con lo reforma que da origen al Código Procesal actual y finalmente porque no es tarea de la defensa, no es competencia de la defensa el decidir si se intiman nuevos hechos al imputado, lo que sí es de competencia de la defensa es que debidamente intimado, el imputado declare o no. Así, el tema posa por el hecho de que el Dr. [Nombre012] no fue intimado sino por la recepción de dos cheques librados de la cuenta de la esposa de [Nombre026] a favor de la esposa de mi representado, la entrega supuesta de 360,000 dólares, que debemos señalar fue descartada, así como la recepción de unos certificados con el tercer pago señalado por [Nombre026] el 30 de setiembre del 2004, el resto de las supuestas recepciones de dinero son hechos por los cuales mi representado nunca fue intimado y por tanto nunca fue indagado, así como tampoco lo fue por la existencia de la supuesta reunión en su casa, en la que supuestamente determinó a [Nombre026] a delinquir, sea NUNCA FUE INTIMADO POR INSTIGACIÓN, impidiendo, de conformidad con el debido proceso, ser juzgado y menos condenado por tales hechos." El tribunal de juicio rechaza el reparo de la defensa diciendo que no se afectó el derecho de defensa, que [Nombre012] pudo solicitar la ampliación de su primera declaración, más lo correcto -plantea el recurrente- es que el imputado sea intimado acerca de los hechos que se le imputan, por lo menos de las circunstancias fundamentales para adecuar la conducta a un tipo penal y poder ejercer el derecho de defensa, "...algo que no ocurre en este caso, en el que la intimación, basada en la primera declaración de [Nombre026] no es ni por asomo similar a la contenida en su segunda declaración, no solo por las circunstancias de hecho mismas sino por la variación en las supuestas conductas de participación y su adecuación típica, por esto mi representado debía ser reindagado luego de la variación en la declaración de [Nombre026] en mayo del 2005, cosa que no ocurrió [...] Entonces sostener, como hace la mayoría que es un absurdo nuestro cuestionamiento, porque de aceptarse se paralizaría la etapa de investigación es un mecanismo de evadir el punto concreto señalado por la defensa, no es de prueba, reitero, es de hechos y cada vez que los hechos varíen, tantas veces se debe indagar al imputado por esos nuevos hechos, de ser los mismos susceptibles de adecuar a otro tipo penal. En este caso tal esencialidad deriva de que se afirma que mí representado instigó a [Nombre026] y esto no era un hecho conocido en el expediente al momento de que mi representado declaro, sino hasta ocho meses después, cuando [Nombre026] da su segunda versión de los hechos." [Nombre012] nunca fue intimado por los hechos que se le acusaron, nunca fue intimado de hechos de instigación, la nueva intimación se debía producir al momento que se insertan hechos nuevos, lo que no ocurrió ni en la etapa intermedia ni en el debate, como falazmente se afirma en el voto de mayoría, lo que ocurrió al inicio del debate es que la Fiscalía recalificó los hechos a una figura más grave, Corrupción agravada por Cohecho propio, pero no hubo variación alguna de los hechos acusados. Es un vicio insubsanable, un defecto absoluto al tenor del artículo 178 inciso a) del Código Procesal Penal, porque es un derecho de naturaleza constitucional, al ser un un derecho fundamental consagrado en la Declaración Universal de Derechos Humanos y en la Convención Americana sobre Derechos Humanos («Pacto de San José»), como a señalado la Sala Constitucional, por lo que se debió dictar un sobreseimiento, ya que no es posible retrotraer el asunto a etapas ya precluidas para subsanar el defecto (cfr. apelación, folios, 172813 a 172821). J) Violación de las reglas de la sana crítica y del control del instituto del criterio de oportunidad. Ante cuestionamientos interlocutorios que hizo la defensa respecto a la aplicación del criterio de oportunidad, las mismas juezas que dictaron el voto de mayoría en la sentencia, concurrieron a dictar la la resolución de las 13:30 horas del 2 de setiembre del año 2010, indicando ellas que su tribunal no era competente para conocer los cuestionamientos hechos al criterio de oportunidad otorgado en favor de [Nombre026], diciendo que corresponde esa facultad a la Sala Tercera de la Corte Suprema de Justicia. Se trata de una renuncia ilegal, incluso inconstitucional, de las competencias del tribunal penal, que le corresponde conocer de todas las cuestiones debatidas y ejercer un control jurisdiccional del debido proceso, tal como lo ordena la ley procesal vigente. Como lo señala el juez Camacho Morales en su voto salvado, el procedimiento seguido para la aplicación de ese instituto a favor de [Nombre026] transgredió el debido proceso. Es en la sentencia que las juezas determinan que es a partir de comparar las supuestos reproches atribuibles a [Nombre026], frente a [Nombre018], [Nombre015] y [Nombre012], que se puede establecer que supuestamente la conducta de [Nombre026], siendo el autor principal, es menos reprochable: "Sin embargo -agrega el quejoso- tal posibilidad le fue negada a la jueza que conoció de la solicitud de aplicación del criterio de oportunidad, violentándose así el control jurisdiccional del criterio de oportunidad establecido en la ley procesal, a la Jueza a la que le fue presentada la solicitud de la fiscalía no se le permitió establecer si era cierto que la conducta de [Nombre026] era más o menos reprochable que la de los otros tres imputados mencionados. Es precisamente el razonamiento que hace el Tribunal de la posibilidad de comparar la menor irreprochabilidad o menor gravedad del hecho, entre los distintos agentes involucrados en el instituto, lo que se le violentó, pues al dividir las competencias, de manera deliberada por la Fiscalía, de modo que un juez conociera de la solicitud de aplicación del Criterio de Oportunidad y otro de la Acusación, impidió que se pudiera realizar de forma alguna ese control acerca de la mayor o menor irreprochabilidad que exige el ordenamiento, tornando el procedimiento de otorgamiento del instituto en totalmente viciado, violatorio del debido proceso y del ordenamiento, no por una nulidad por la nulidad misma, sino porque de la aplicación o no del instituto deriva el ejercicio del derecho de defensa de mi representado, su ejercicio real y no simplemente formal, más aun cuando el imputado beneficiado tiene la virtud de convencer o un tribunal que determina que no es necesaria la existencia de pruebas que corroboren su dicho, sino que el problema es de simple credibilidad o no. Dado que como vimos la declaración del imputado colaborador, dentro del instituto del "CRITERIO DE OPORTUNIDAD" (Art 22 del Código Procesal), no es PRUEBA, sino que su contenido debe estar acompañado de medios de prueba lícitos que permitan corroborar o validar la versión de dicho imputado y que allí estriba el valor de dicha declaración NO como MEDIO DE PRUEBA, sino como medio de OBTENER PRUEBA de conformidad con el numeral 22 del CPP que dispone '... y el imputado colabore eficazmente con la investigación, brinde información esencial para evitar que continúe el delito ... ayude a esclarecer el hecho investigado u otros conexos o proporcione información útil para probar la participación de otros imputados ...' Es evidente que el Juez que aprueba dicho criterio, debe tener a su haber la totalidad de posibles irreprochabilidades, o sea la acusación y la solicitud de aprobación del criterio de oportunidad y resolver, como exige la ley al finalizar la Audiencia preliminar, numerales 37 y 319 del Código de rito violados por el voto de mayoría." En segundo lugar, reprocha el impugnante, no procedía evadir la resolución del criterio de oportunidad y señalar, como lo hace el voto de mayoría, que [Nombre026] declaró movido por un interés altruista, pues es evidente su interés espurio. Tampoco comparte la afirmación de la mayoría cuando dice que la Sala Tercera ha interpretado erróneamente el tema de la mayor o menor irreprochabilidad, en el sentido que la participación del "arrepentido" sea más leve que la de aquel a quien se quiere perseguir, pues la reprochabilidad no puede determinarse sino hasta la etapa de la sentencia, cuando se ha determinado la existencia del injusto, lo que haría inaplicable en todo caso dicho instituto procesal. En este caso la conducta de [Nombre026] es más grave que la de cualquier otro imputado, pues la propia fiscalía señala que fue el autor directo con pleno dominio del hecho y por eso su conducta no podría ser menos "reprochable" que la de un partícipe; no era posible otorgarle impunidad a un autor frente a una supuesta instigación que el tribunal reconoce no consiste en una acción directa de determinación, sino que fue simbólica. Solicita que se declare la invalidez de la sentencia recurrida por estar basada en un criterio de oportunidad ilícitamente otorgado y se dicte sentencia de sobreseimiento (cfr. apelación, folios 172821 a 172828). K) Violación a las reglas de aplicación de la pena y falta de fundamentación. Alega que si la mayoría impone el extremo mayor de la pena a su representado, lo hace diciendo que esto es en virtud de su "mayor irreprochabilidad" frente al bien jurídico tutelado y por una razón a todas luces espuria, porque él era el Presidente de la República y porque [Nombre026] es menos reprochable, por hablar y porque devolvió una suma de dinero, mientras que su representado no devolvió suma alguna y trato de evadir su responsabilidad pretendiendo dar explicaciones que resultaron, a juicio de la mayoría, insostenibles y porque no dio explicaciones del origen de parte de los dineros recibidos de parte de [Nombre026]. "Estas afirmaciones -alega el licenciado Gairaud Salazar- aun cuando la mayoría se apuro a tratar de señalar que no están aplicando la teoría del Derecho Penal de Autor, resulta evidentemente reveladora de que efectivamente las razones por las que reimpone la pena máxima son insostenibles: Primero, la mayor o menor irreprochabilidad no depende de la jerarquía de la función que desempeñe el funcionario, sino de la mayor o menor incidencia sobre la lesión al bien jurídico en concreto, no en abstracto, sea que para el hecho concreto, los actos del responsable son de tal o cual magnitud que determinan la imposición de la pena. Segundo el ejercicio del Derecho de defensa, que es precisamente el corolario de la afirmación de que [Nombre026] confeso y que mi representado no lo hizo es una violación flagrante, otra, al debido proceso, no puede imponerse la pena y el máximo de la pena porque el imputado hizo ejercicio de un derecho constitucional y legal, tal afirmación devienen en arbitraria e ilícita legal y constitucionalmente. Finalmente se basa en la inversión de la carga de la pruebo, no es al imputado a quién corresponde demostrar, es a la acusación, de modo tal que el no haber dado, supuestamente, dicha explicación de los fondos o hace más o menos reprochable la conducta del sujeto. Esas tres razones derivan en la ilegitimidad del criterio usado por la mayoría para establecer la supuesta mayor irreprochabilidad de mí representado frente a [Nombre026], pero no constituyen una fundamentación del porqué de la imposición de la peno máxima a mí representado. De toda suerte siendo razones ilícitas quedarían excluidas como fundamento de la pena impuesto, al serlo y no habiendo concretado las razones no de la supuesta mayor o menor irreprochabilidad de mi representado sino de porqué del quantum de la pena, es evidente que la pena se impone de manera antojadiza e ilegal, violando el deber de fundamentación de la pena [...] Por ejercer su derecho de defensa se le impone la pena máxima esa es la conclusión a la que arribamos luego de leer la fundamentación de la pena por parte del voto de mayoría. No es posible considerar tampoco como razonable dicha pena si consideramos que mi representado actúa, según el voto de mayoría como simple instigador, no como autor, que lo instigación fue subliminal, un gesto o una división de porcentajes, no la acción directa y que el Autor Directo con Pleno Dominio del Hecho quede impune y al instigador subliminal se le imponga la pena máxima prevista por el delito." Solicita acoger el motivo de falta de fundamentación y adecuada determinación y proporcionalidad de la pena y que en caso de no acogerse los otros motivos de apelación por la forma y el fondo y se confirme la sentencia recurrida se proceda a adecuar correctamente la pena impuesta hasta un extremo equivalente que permita la ejecución condicional de la pena (cfr. apelación, folios 172828 a 172831). L) Violación a las reglas de aplicación de la norma sustantiva de la Instigación (artículos 47, 342 y 340 del Código Penal). Los hechos que se tuvieron por acreditados en la sentencia números 90 y 91 no se adecuan a los tipos penales de «Complices» (artículo 47 del Código Penal), «Cohecho impropio» (artículo 340 del Código Penal) y de «Corrupción agravada» artículo 342 del Código Penal). [Nombre026] no requería ser determinado sino contar eventualmente con ayuda. Para la mayoría la instigación ni siquiera es directa sino que se deriva de la manifestación "vamos 60/40". Agrega el licenciado Gairaud Salazar: "Entonces desde el momento mismo de que se le hace la propuesta [Nombre026] acepta la misma, dice el voto de mayoría que dice en [Nombre026] apunta que lo hace 'en principio' adverbio que según el diccionario 'Pequeño Larousse' es provisional, sin aceptación plena, lo cual evidentemente no es correcto. Cuando [Nombre026] dice que acepta en principio, dice que acepta la propuesta y la posible condicionalidad es resuelta en el hecho probado 91, necesitaba saber si eventualmente mi representado lo podría ayudar en caso de que el asunto se complicara, que como vimos nunca ocurre. En otras palabras [Nombre026] está determinado a cometer el delito en el momento mismo que se le ofrece lo dádiva que según las normas sustantivas violadas es el momento de consumación y no podría mi representado determinar la comisión de un delito que YA SE CONSUMÓ, según las propias consideraciones del voto de mayoría. Aceptar en principio revela que [Nombre026] les dice si acepto pero tengo reservas, debo pensarlo, que es efectivamente lo que el voto de mayoría dice ocurre cuando llega a su casa y viendo la dimensión del caso, decide consultar la eventual colaboración de mi representado, esto evidentemente NO ES INSTIGACIÓN, por tanto la norma del artículo 47 y el 340 sobre el tema CONSUMACIÓN, son flagrantemente violadas por el voto de mayoría. En consecuencia, si [Nombre026] aceptó la propuesta hecha en la misma [...], si luego solo requería eventual ayuda y no ser determinado, evidentemente mi representado no lo instigó, dado que señala Castillo González, citado por el tribunal: 'Señala Castillo González que 'determinar' implica que el instigador influye de manera inmediata en la voluntad del autor o, dicho de otro modo, 'causa' o 'hace nacer' en el autor la resolución de cometer el delito (Op. cit., p. 499). En tomo al tipo subjetivo, el instigador debe determina¡ a otro y hacerlo intencionalmente, es una acción dolosa y no cabe la culpa ni el dolo eventual (Op cit., p 510). Se habla impropiamente de un doble dolo: i) que el instigador actúe dolosamente respecto de su propia actividad como determinador. ii) También el instigador debe tener un dolo dirigido a la realización dolosa por el autor del hecho punible consumado. (op. cit., p.511).' En consecuencia, sí [Nombre026] aceptó la propuesta hecha en la misma [...], si luego solo requería eventual ayuda y no ser determinado, evidentemente mi representado no lo instigó y por tanto la resolución recurrida aplica de manera incorrecta las normas de la instigación y la consumación del Cohecho Impropio." Solicita acoger este reclamo y constatando que de los hechos probados se deriva que [Nombre026] consumó el delito antes de reunirse supuestamente con [Nombre012], que ya estaba determinado al momento de realizarse la supuesta reunión en caso de su representado y que por tanto no podía ser instigado, que resulta ilícito que se le hubiera condenado como Instigador del Delito de Corrupción Agravada por Cohecho Impropio y que en su lugar y con fundamento en el elenco de hechos probados se dicte a su favor la sentencia absolutoria que en derecho corresponde (cfr. apelación, folios 172831 a 172836). Concluye su escrito solicitando a este Tribunal de Apelación de Sentencia revocar la resolución recurrida, que ordene la celebración de nuevos procedimientos o que dicte sentencia absolutoria en caso de que resulte evidente para este tribunal la ausencia de elementos para sustentar en juicio la acusación en contra de su representado. Solicita que se señale una audiencia oral para informar.

IV.SE RESUELVE EL RECURSO DEL LICENCIADO RAFAEL ENRIQUE GAIRAUD SALAZAR.- En vista de lo que sido resuelto respecto al recurso de apelación del Dr. [Nombre012] en el Considerando anterior, resulta innecesario emitir pronunciamiento respecto al recurso de sus defensor, el Lic. Rafael Enrique Gairaud Salazar, pues ya han sido acogidas sus pretensiones.

V. RECURSO DEL LIC

CRISTIAN ARGUEDAS ARGUEDAS.- El Lic. Arguedas, también abogado de don [Nombre012], ha expresado su disconformidad con la sentencia a través de diversos escritos, el primero de ellos es un recurso de «casación» que presentó el día 1 de agosto de 2011 (cfr. Tomo XXXVII, folios 17387 a 17407). El segundo es un «recurso de apelación se sentencia» (presentado el día 10 de febrero de 2012, cfr. Tomo XXXIX, folios 172687 a 172710), mediante el cual el Lic. Arguedas adecua sus anteriores reclamos de casación a un recurso de apelación de sentencia penal, de conformidad con el Transitorio III de la Ley N° 8837 de 3 de mayo de 2010 («Creación del recurso de apelación de la sentencia, otras reformas al régimen de impugnación e implementación de nuevas reglas de oralidad en el proceso penal»). Acusa la inobservancia de los artículos 41, 153 y 154 de la Constitución Política; 41, 112, 142, 266, 363, 365 y 367 del Código Procesal Penal; 99, 290, 291 del Código Procesal Civil; por los siguientes motivos: A) Falta de fundamentación de la sentencia, en virtud de que el tribunal se abstuvo de resolver lo relativo a la acción civil planteada por el Instituto Costarricense de Electricidad (ICE), porque supuestamente su acción civil resarcitoria carece de una adecuada base fáctica (no tiene una descripción clara de los hechos atribuibles a [Nombre012]) que sustente las pretensiones formuladas, por lo que remite a las partes interesadas a la vía civil a dilucidar las pretensiones civiles del ICE.

No hay ninguna norma jurídica que autorice al tribunal de juicio a decidir así, denegando el acceso a la justicia pronta y cumplida por no resolver un asunto sometido a su conocimiento y competencia. Como el tribunal de juicio no puede suplir las deficiencias de las partes a la hora de litigar, el tribunal debió declarara la inadmisibilidad de la demanda civil del ICE, su archivo o rechazo de plano, como lo exige el artículo 291 del Código Procesal Civil, con la consecuente condenatoria en costas. El tribunal de juicio debió resolver el asunto sometido a su jurisdicción y competencia y no lo hizo, tampoco indicó cuáles fueron sus razonamientos jurídicos ni las normas aplicables para llegar a esa decisión suya de no resolver, denegando así el acceso a la justicia de [Nombre012]. El Tribunal de juicio incurrió en "citra petita" porque no resolvió un asunto sometido a su conocimiento. El vicio ha sido señalado infructuosamente en todas las etapas y momentos procesales oportunos.

• B)Falta de fundamentación en virtud de que el tribunal de juicio no resolvió lo relativo a la acción civil planteada por el ICE. Dice el tribunal de juicio que una particularidad de este proceso es que no todos los imputados tuvieron participación en todos los hechos delictivos acusados, más bien se parte de la intervención de grupos de imputados en determinados hechos, circunstancia que obliga a tener que determinar y especificar cada grupo de imputados y terceros demandados civiles que pudieran resultar obligados solidarios entre si, con relación también a determinados hechos y determinados daños que esos específicos hechos pudieron haber causado, con lo cual, se llega a la conclusión de que no existe un daño por el cual deben responder solidariamente todos los imputados y eventualmente terceros, que es el supuesto sobre el cual se liquidaron las pretensiones civiles por parte del Instituto Costarricense de Electricidad y la Procuraduría General de la República.

Lo que podría existir son daños causados por la conducta delictiva de determinados grupos de imputados, por el cual responderían solidariamente los imputados del grupo y eventualmente terceros, en forma independiente de los eventuales daños causado por otros grupos de imputados. Dice el tribunal que para cada grupo de obligados solidarios, era menester concretar los daños reclamados y las pretensiones, lo cual no se hizo, haciendo al respecto una estimación global y uno solicitud de condena, como si todos los imputados y personas jurídicas fueran deudores solidarios de un daño total, que no es tal, porque lo que podría existir en el caso concreto, son varios daños individualizables por grupo de imputados y terceros que podrían resultar obligados a repararlos. El daño total a que se hace referencia en las acciones civiles no podría pasar de ser la suma de los daños individuales causados por cada grupo de eventuales obligados, que para los efectos de la indemnización que se pretende, carece de toda relevancia jurídica.

Agrega el tribunal que al procederse por parte de los actores civiles (Procuraduría General de la República e Instituto Costarricense de Electricidad), a liquidar pretensiones de la manera que lo hicieron, dejan al Tribunal imposibilitado para pronunciarse en cuanto al fondo de las mismas y que lo anterior se agrava ante la circunstancia de que no se realizó ningún intento por establecer el daño individual eventualmente causado por cada grupo de deudores solidarios, de manera que, aunque el Tribunal decidiera hacerle el trabajo a las partes actoras civiles, carecería de los insumos para ello, y de hacerlo, sería en definitiva hasta en sentencia, que los demandados civiles llegarían a conocer cuales eran las concretos, determinadas y específicas pretensiones que se formularon en su contra, en cuyo caso se estaría violando el debido proceso que exige que la concreción de pretensiones deba darse antes de la conclusión del procedimiento preparatorio, para que las partes demandadas civilmente pudieran ejercer debidamente el derecho de defensa, el cual se violentaría si el Tribunal se pronunciara sobre el fondo de las pretensiones tal y como fueron formuladas.

Que unido a lo anterior, tampoco se consideró, que el mismo Instituto Costarricense de Electricidad que demanda la reparación de daños y perjuicios a su favor, es una de las personas jurídicas que, de acuerdo con la ley, están obligados solidariamente con los demandados civiles a su reparación. Considera el Tribunal que no podría suplir la negligencia de la parte sin vulnerar gravemente importantes principios del proceso civil como lo son el de objetividad e imparcialidad de los jueces, el derecho de defensa y el debido proceso en general, al permitir actuaciones contrarias a las disposiciones legales que regulan la acción civil resarcitoria que afectan el correcto desarrollo del proceso y el derecho de defensa de las partes, quienes sería hasta que se dicte la sentencia, que llegarían a enterarse de en qué consistía el reclamo concreto que se hacía en su contra. Según el tribunal similares cuestionamientos pueden hacerse a las acciones civiles planteadas por la Procuraduría General de la República, órgano Estatal al que el Código Procesal Penal le encarga el ejercicio de la Acción Civil Resarcitoria en representación no del Estado, sino de los Intereses Colectivos y Difusos (artículo 38 del Código Procesal Penal).

La Procuraduría General de la República no podía obviar, al formular la acción civil resarcitoria y sus pretensiones, que el Estado y el Instituto Costarricense de Electricidad eran también señalados por la ley como obligados solidarios a responder por los daños y perjuicios a los intereses colectivos o difusos, cuya indemnización se pretende. Lo anterior porque en la eventual producción de los daños y perjuicios intervinieron funcionarios públicos del Poder Ejecutivo, del Poder Legislativo y del Instituto Costarricense de Electricidad. Al no establecer acción civil resarcitoria contra dichos entes, la Procuraduría General de la República incumplió sus obligaciones según el numeral 20 y 21 de su Ley orgánica. De tal suerte -concluye el tribunal-, la Procuraduría General de la República, al reclamar el daño social representando los intereses colectivos y difusos, no podía exigir una responsabilidad solidaria total a todos los demandados civiles, sin diferenciar, como correspondía en este coso, entre los diferentes grupos de deudores solidarios, debiendo determinar respecto de cada grupo cual fue el hecho delictivo concreto atribuido y el daño causado a partir del mismo, todo ello sustentado fácticamente en la descripción de hechos.

Por lo tanto -concluye el quejoso- los defectos formales que señala el tribunal de juicio respecto a la reglas de la solidaridad legal generan indefensión, confusión y deviene en mala tramitación de las acciones civiles, el tribunal entonces decide no resolver el asunto, escapar de su obligación constitucional de impartir justicia, denegando la justicia al demandado [Nombre012], enviando el asunto a la jurisdicción civil, cuando lo procedente era conocer el asunto y declararlo sin lugar, con la correspondiente condenatoria en costas para los actores civiles. Indica el licenciado Arguedas que durante el traslado de la acción civil, opuso la excepción de litis consorcio necesario pasivo, en virtud de las reglas de solidaridad que rigen el presente caso, pero nunca fue escuchada; durante la fase intermedia, en la audiencia preliminar y en la fase de juicio, sustentó esa excepción, ya que se consideró que las demandas civiles del ICE y de la PGR no estaban bien formuladas y que habían varios sujetos que reunían las condiciones procesales para ser considerados como demandados y que no lo estaban siendo, como por ejemplo el caso de [Nombre026], a quien el ICE nunca demandó, a pesar de ser el autor principal de los hechos que se le atribuyen a [Nombre012].

El tribunal debió declarar con lugar la excepción de litis consorcio pasivo y condenar en costas, pero nunca abstenerse de conocer el asunto. C) Falta de fundamentación de la sentencia sobre el tema de las costas, pues no nos dice el tribunal cuales son los motivos de convicción, normas legales aplicables y fundamentos para, primero resolver sin especial condenatoria en costas. Segundo, a pesar de que el tribunal reconoce los defectos insubsanables de las demandas civiles del ICE y de la PGR, y que estos son responsabilidad de los actores civiles y de los Tribunales de Justicia, esta representación no acepta ni comparte lo que pretende el tribunal: responsabilizar también a la defensa por el mal manejo de las acciones civiles de sus rivales, toda vez que eso no es responsabilidad de la defensa ni tampoco es lógico ni racional tal conclusión. En todo caso, la defensa del Dr. [Nombre012] siempre hizo saber a los diferentes jueces penales tales situaciones y para ello se opusieron toda clase de excepciones en todos los momentos procesales oportunos, razón por la cual dicho argumento es carente de todo tipo de fundamentación.

Si el tribunal reconoce que existen vicios invencibles en las demandas por culpa de la mala tramitación por parte de los actores civiles y por la complicidad de la administración de justicia, eso jamás puede ser atribuible a la defensa, especialmente, cuando es la defensa, quien en todas las etapas procesales denunció tales circunstancias. En tercer lugar, carece de toda fundamentación lo resuelto por el tribunal, ya que no dice cuales fueron las razones plausibles para litigar. No se encuentra una sola razón o justificación para calificar de plausible para litigar y por lo tanto exonerar en costas a los actores civiles y no resuelve lo pedido por la defensa por lo menos en relación con las excepciones planteadas en todo momento. Tampoco analizó la temeridad y la mala fe con que el ICE y la PGR litigaron, haciendo demandas absurdas y sin fundamento probatorio alguno. Solicita que se declare con lugar este recurso, declarando inadmisibles las demandas civiles y rechazándolas por el fondo, condenando al Estado y al Instituto Costarricense de Electricidad al pago de las costas legales y procesales, de acuerdo con el decreto de honorarios vigente.

• D)Inobservancia y errónea interpretación del Código Procesal Penal, del Código Procesal Civil y violación al principio de congruencia y correlación entre demanda civil y sentencia. Expone el tribunal con gran tino jurídico los fundamentos que pueden llegar a causar diferentes motivos de apelación y casación en virtud de la violación de los principios de congruencia y correlación demanda civil - sentencia, sin embargo falla y entra el tribunal en citra petita, a la hora de no resolver. Conforme a la jurisprudencia de la Sala Segunda, se incurre en citra petita en caso de omitir el pronunciamiento sobre puntos discutidos entre las partes (cfr. N° 618-2010 de las 9:15 horas del 20 de mayo de 2010), como sucede en este asunto. Ni la representación legal del ICE ni la de la PGR le requirió o solicitó al tribunal que no resolviera el presente asunto sometido a su conocimiento. Tampoco lo hizo la representación civil técnica del Dr. [Nombre012], sino que todas las partes estaban deseosas de que el tribunal cumpliera su mandato constitucional.

De los artículos 99 del Código Procesal Civil, 365 y 367 del Código Procesal Penal, se deriva que la opción de no resolver un asunto sometido a conocimiento del tribunal de juicio no encuentra asidero legal en legislación procesal civil y procesal penal. Se viola el principio de congruencia cuando el tribunal de juicio se abstiene a conocer el fondo del asunto y no resuelve. Razón de lo anterior, el presente recurso de apelación debe de acogerse en su totalidad. E) Violación del principio de congruencia anteriormente descrito porque el tribunal de juicio no conoció el fondo del asunto y consecuentemente no acogió la pretensión de la defensa de [Nombre012]. Además de la falta de fundamentación y fallo contradictorio, dice el licenciado Arguedas que no encuentra argumento legal válido alguno para que el tribunal no se pronunciara sobre el fondo del asunto. El le solicitó al tribunal declarar sin lugar las acciones civiles del ICE y de la PGR, toda vez que el daño reclamado por los accionantes es inexistente. nunca se dio y por lo tanto no hay indemnización alguna de la que sean acreedores.

En primer lugar, en cuanto a la acción civil del ICE, el licenciado Arguedas opuso las excepciones de falta de derecho, falta de legitimación activa, falta de causa, entre otras, que nunca fueron resueltas o atendidas por el Tribunal, toda vez que el ICE no sufrió perjuicio económico alguno, sino que más bien lucró y se benefició con la contratación de las cuatrocientas mil líneas celulares. Al efecto, el tribunal de apelación puede consultar la prueba número 646, y los testimonios de los señores Ex Presidentes Ejecutivos del Ice, [Nombre052], [Nombre053], y el Gerente del Mercadeo del ICE [Nombre054] quienes depusieron en juicio y confirmaron las ganancias obtenidas por el Ice en virtud de la contratación con Alcatel y negaron además perjuicio económico alguno para el ICE. De la misma manera, el reclamo del ICE se base en una rebaja hecha por la ARESEP a las tarifas de líneas fijas, al depósito o garantía y la negativa de un aumento en tarifas, y por lo tanto lo pedido por el ICE no lleva nexo causal alguno con los hechos juzgados por el tribunal de juicio.

Basta con observar la prueba 782 para darse cuenta que la resolución de Aresep que rebaja las tarifas celulares es una que data del año 2003, mucho tiempo antes que los hechos juzgados por el Tribunal salieran a la luz pública (octubre del 2004), lo cual hace que Ia falta de nexo causal con los hechos juzgados sea evidente. Es decir, lo que ocasionó la resolución de la Aresep no fueron los hechos del presente expediente. En dicha resolución, (prueba 782) la Aresep, en virtud de su Ley orgánica, rebajó tarifas de toda la red celular y de telefonía frja, y no solo de las cuatrocientas mil líneas contratadas a Alcatel. Si esto es así, se pregunta el impugnante, ¿qué tiene que ver, o cual es el nexo causal de la rebaja un año antes de los hechos sobre telefonía contratada con Lucent y Ericcsson con los hechos del 2004 atribuibles a Alcatel?, Es evidente la falta de nexo causal entre lo pedido por el ICE y los hechos juzgados.

Por ello, la pretensión del ICE debió y debe declararse sin lugar por el fondo del asunto. Con ocasión a la misma resolución de Aresep (prueba 782) contrario a lo que le solicitó el ICE en aquel momento, el órgano fiscalizador de los servicios públicos no les aprobó un aumento solicitado de cuatrocientos colones, ya que como bien lo depusieron los testigos [Nombre055], [Nombre056] y [Nombre052], con GSM se generaban economías de escala, se abarataba la administración de la red celular y eso tenía que ser trasladado al consumidor final en forma de una disminución en las tarifas. Por ello, lo pedido por el ICE en su acción civil carece de todo nexo causal con los hechos dilucidados en el tribunal referente al presente expediente. Finalmente, en dicha resolución, la Aresep, rebajó la garantía o depósito por línea celular de sesenta mil colones a doce mil quinientos colones, todo en función de la nueva y mejor estructura de costos que tenía la implementación de la red GSM.

Sin embargo, tal y como lo depuso el perito contratado por el ICE, el depósito de garantía no era propiedad del ICE, sino de usuarios. Sin embargo, en una forma sin precedentes, el ICE pretendió una indemnización millonaria por la imposibilidad de "jinetear" o de capitalizar los intereses del dinero de los usuarios. Esto, a todas luces constituye un enriquecimiento sin causa, y por lo tanto ilegal y en todo caso, no tiene nexo causal alguno con los hechos juzgados por el Tribunal. En síntesis, la indemnización millonaria e ilegal pretendida por el ICE no tiene nexo causal con los hechos juzgados por el tribunal de juicio, razón de ello, el ente juzgador debió pronunciarse por el fondo, declarando sin lugar la acción civil del ICE y condenando al ICE por la mala fe, por plantear una demanda temeraria, sin nexo causal alguno con los hechos juzgados por el tribunal de juicio. A pesar de ello, el Tribunal en violación directa a la Constitución, no resolvió la petición de la defensa, sino mas bien, incurrió en citra petita, pues no resolvió absolutamente nada.

Por otro lado, en relación con la demanda civil por daño social planteada por la PGR, la misma corre la misma suerte que la del ICE, pues es temeraria y se basa en reclamos inexistentes que de seguido comenta. La PGR reclama un supuesto daño a la democracia en virtud del abstencionismo electoral, consistente en una formulación absurda, toda vez que el abstencionismo electoral es un fenómeno que se viene dando en el país desde las elecciones de 1986 y desde ese momento ha ido en constante crecimiento sin detenerse. La Universidad de Costa Rica a solicitud del Tribunal Supremo de Elecciones recién pasadas las elecciones de 2002 (dos años antes de que siquiera se conociera el caso ICE-Alcatel) efectuó el estudio "Abstencionistas en Costa Rica ¿Quiénes son y por que no votan?", de Ciska Raventos Vorst y otros (prueba 771), sostiene y concluye lo siguiente: a) El debilitamiento de las lealtades partidarias no es exclusivo de Costa Rica; b) En un sistema bipartidista la desafiliación partidaria conduce frecuentemente a la abstención; c) A partir de 1990 y 1994, pero particularmente en 1998, se evidencia una nueva modalidad de abstención, motivada más bien por un malestar con la política y los políticos; d) La interpretación de los datos nos lleva a concluir que el régimen político costarricense, marcado por una importante estabilidad en las opciones partidarias y las preferencias de los votantes, ha entrado en un período de cambio en las últimas dos elecciones.

(Debe considerarse que se refiere a 1998 y 2002 antes de los hechos investigados). El principal rasgo de este cambio es el malestar con la política y los políticos que se expresa en el alejamiento de los votantes de las dos opciones partidarias de la segunda mitad del siglo pasado y no con el presente caso. Con relación a las elecciones de 2021 la tendencia era para un mayor abstencionismo. e) En el 2002 este grupo de electores con alto nivel educativo y buena condición socioeconómica se sienten atraídos hacia el planteamiento del PAC, de modo que vuelven a ejercer su derecho en esta elección. Por otra parte, en esta ocasión los electores de niveles socioeconómicos más bajos vuelven a engrosar los porcentajes de abstención, compensando literalmente el posible efecto de aquellos que se abstuvieron en 1998 pero que regresan a las urnas en el 2002. Lo anterior permite afirmar que, posiblemente, si no hubiese existido una tercera opción, los niveles de abstención se hubiesen incrementado considerablemente; f) En síntesis, el aumento de la abstención electoral en las últimas dos elecciones, pareciera estar vinculado fundamentalmente a factores políticos, asociados al cierre del ciclo político de la segunda mitad del siglo XX, en que las principales instituciones debilitadas han sido los partidos políticos.

A pesar de los datos reales probados y emitidos por el Universidad de Costa Rica, la PGR basa su cálculo del porcentaje del abstencionismo en una noticia del Periódico Al Día del 6 de Octubre del 2004, donde indica que el abstencionismo para las elecciones del 2006 era del 64.20/0r lo cual, como es públicamente notorio, nunca se dio en realidad, pues el abstencionismo del 2006 fue de 34.80/", para ello basta ver la prueba 772 que es la certificación de resultados electorales emitida por el TSE. De manera totalmente absurda, la PGR propone una metodología para calcular un daño a la democracia totalmente inexistente con base en lo siguiente. La PGR propuso que como en el 2002 se obtuvo un abstencionismo del 3l.2% en el 2002 y el dato que dice el Periódico Al Día cuando entrevistó a 500 personas fue estimado en el 64.2% en el 2004, la diferencia entre esas cifras y que es igual al33%, o bien los 841.702 electores que eventualmente se abstendrían de acuerdo al padrón electoral, entonces, se debe multiplicar ese numero de electores por la suma de $12.71 que según él es el costo por voto, y que da la suma de USD $10.697.617, por lo que este caso, al tener el caso ICE-ALCATEL una responsabilidad del 33.9% de acuerdo a un sondeo realizado a 104 personas, lo que se le imputa a su representado es el monto de USD $3.626.492. El anterior cálculo es descabellado y absurdo por varias razones:

• 1)el porcentaje real de abstencionismo no tiene relación alguna con los hechos juzgados en este Tribunal (pruebas 771 y 772), toda vez que fue menor al sostenido por la PGR y que se deben a factores ajenos a los hechos juzgados como se dijo anteriormente.
• 2)El presupuesto de elecciones es definido constitucionalmente, y se invierte independientemente de los electores que acuden a las urnas, ya sea si votan 1, 10, 300 o todo el electorado. Simplemente ese inversión es parte de nuestra decisión como país e identidad democrática, por lo que el cálculo de $12.71 por elector es a todas luces desafortunado.
• 3)El peso del 33.9% referido a la responsabilidad del caso ICE-Alcatel lo definieron 104 personas de Heredia en un sondeo, es decir, no viene de un estudio serio que sea extrapolable a toda la población nacional, tal y como el mismo perito de la PGR lo sostiene y el perito [Nombre057] a la hora de deponer en juicio.
• 4)Se compara una cifra real con una evaluación de un sondeo que no es extrapolable a la población hecho a mitad del período electoral, lo cual evidencia la falta de seriedad y la temeridad de la acción civil de la PGR.
• 5)Se compara una actuación el día de las elecciones con una creencia fuera de período electoral, pero sobre todo, con un dato de un periódico emitido por una periodista sin conocimiento alguno de la materia, ni siquiera con datos reales.
• 6)No tiene lógica alguna, ni se justifica en ningún estudio serio, el abstencionismo nacional como resultado de la imagen o juicio que se le siga a un dirigente político .para ello, en caso extremo, habría que partir que nunca antes del 2002 hubo abstencionismo electoral y que concurría el 100% de los votantes a cada elección. El 100% solo concurre en la totalidad del padrón. No tiene [Nombre012] responsabilidad por los abstencionistas ni por daño a la democracia en este sentido. Esto hace el pretendido daño a la democracia sea simplemente insostenible y no tiene nexo causal alguno con los hechos juzgados, razón de ello, el Tribunal debió declararlo sin lugar y condenar a la PGR a costas legales y procesales. De la misma manera, la PGR pretende una reparación por un insostenible e inexistente daño a la economía nacional. La defensa del Dr. [Nombre012] ofreció pruebas y datos reales que afirman que la economía costarricense no sufrió daño alguno por los hechos juzgados, sino que más bien se fortaleció año con año. A pesar de que la PGR planteó una metodología ineficaz y sin base científica alguna, los datos reales indican que la economía nacional no sufrió menoscabo alguno, o al menos, los hechos juzgados por el Tribunal no tuvieron incidencia negativa en el desarrollo económico nacional. La prueba 774 que es una certificación emitida por el Banco Central de Costa Rica claramente refleja que la economía desde el año 2001 al 2006 se fortaleció y aumentó año con año, y no hubo menoscabo alguno. Igualmente, la prueba 774 indica que los turistas y los ingresos por turismo entre los años 2002 al 2006 siempre fueron en aumento y nunca se desmejoraron, es decir, los hechos aquí juzgados no tuvieron injerencia alguna, salvo para beneficiarlos, por ello no existe nexo causal y es inexistente un supuesto daño a la economía nacional pretendida por la PGR con los hechos aquí juzgados. La misma prueba 774 es contundente en el sentido de que las exportaciones nacionales no se desmejoraron por los hechos juzgados por el Tribunal. Nótese que la serie de años del 2001 al 2006 indican un aumento sostenido en las exportaciones nacionales, es decir, los hechos aquí juzgados no tuvieron impacto alguno con las exportaciones, por ello, la demanda civil de la PGR tenía que declararse sin lugar, con la correspondiente condenatoria en costas a cargo de la PGR. En relación con la inversión extranjera directa, la prueba 773 es clara, la certificar el Ministerio de Comercio Exterior que la inversión extranjera para los años 2001 al 2006 jamás dejó de crecer, sino que año con año aumentaba y crecía, por ello, la demanda civil de la PGR tenía que declararse sin lugar con la correspondiente condenatoria en costas a cargo de la PGR. Por lo tanto, las pretensiones civiles de la PGR referentes al inexistente daño a la democracia y a la economía nacional son a todas luces descabelladas y no tienen asidero probatorio y legal alguno, pues en realidad, ni la democracia ni la economía se vieron afectadas de modo alguno por los hechos juzgados por el tribunal de juicio referentes al caso Ice-Alcatel. Razón de ello, incurre el Tribunal en citra petita, toda vez que no resolvió lo solicitado por la defensa civil del Dr. [Nombre012], pues lo procedente es declarar sin lugar la demanda civil de la PGR por inexistencia absoluta de daño social alguno. En virtud de lo anterior, incurre el Tribunal en vicio de incongruencia, toda vez que debía de resolver las acciones civiles tanto del ICE como de la PGR, y la única solución legalmente posible era declararlas sin lugar y condenar a ambos actoras civiles en costas legales y procesales. Petitoria. En Virtud de lo anterior solicita a la Cámara de Apelación lo siguiente:

"a) Acoger el presente recurso de apelación contra la sentencia No 167-201I de las quince horas del veintisiete de abril de dos mil once del Tribunal penal de Hacienda del Segundo Circuito Judicial en lo relativo a las acciones civiles." "b) Declarar la inadmisibilidad de las demandas civiles incoadas tanto por el Instituto Costarricense de Electricidad como por la Procuraduría General de la República, condenando a ambos actores civiles al pago de costas legales y procesales a favor de la defensa civil de [Nombre012]." "c) Declarar la excepción de litis consorcio necesario pasivo para con las demandas civiles incoadas tanto por el Instituto Costarricense de Electricidad como por la Procuraduría General de la República, condenando a ambos actores civiles al pago de costas legales y procesales a favor de la defensa civil de [Nombre012]." "d) Acoger el presente recurso de apelación en virtud de la falta de fundamentación en relación con los agravios anteriormente mencionados y condenar tanto al Instituto Costarricense de Electricidad como por la Procuraduría General de la República, al pago de costas legales y procesales a favor de la defensa civil de [Nombre012], en virtud de las demandas temerarias, insostenibles y de mala fe." "e) Acoger el presente recurso de apelación y rechazar por el fondo las demandas civiles incoadas tanto por el Instituto Costarricense de Electricidad como por la Procuraduría General de la República, toda vez que los daños reclamados por ambos actores civiles son inexistentes, condenanáo a ambos actores civiles al pago de costas legales y procesales a favor de la defensa civil de [Nombre012]."

VI.SE RESUELVE EL RECURSO DEL LICENCIADO CRISTIAN ARGUEDAS ARGUEDAS.- La disconformidad del licenciado Cristian Arguedas es atendible, no haber resuelto en la sentencia lo concerniente a las acciones civiles presentadas constituye una denegación de justicia. A) Respecto a la acción civil resarcitoria del Instituto Costarricense de Electricidad. En el Considerando XV de la sentencia impugnada se aborda el tema de las acciones civiles resarcitorias. Se indica que:

«La Acción Civil Resarcitoria interpuesta por el Instituto Costarricense de Electricidad carece de una adecuada base fáctica que sustente las pretensiones fundadas y la posibilidad de ejercer el derecho de defensa y el control del principio de congruencia entre la sentencia y la acción civil resarcitoria, defecto que, por sí mismo, constituye un obstáculo insalvable en esta etapa del proceso que le impide a este Tribunal pronunciarse en cuanto al fondo de dicha acción civil.» (sentencia, página 1862).

Según el tribunal de juicio, el artículo 112 inciso d) del Código Procesal Penal (concretamente la indicación de los motivos en que se basa la acción) implica que el actor civil tenga que realizar una descripción clara, precisa y circunstanciada de los hechos por los cuales se plantea la acción civil, para resguardar el principio de congruencia (cfr. sentencia, páginas 1862 a 1873). Indica el tribunal que ese motivo debe establecerse al momento de formular la solicitud de constitución de actor civil, que de ninguna manera sería admisible que se haga en las conclusiones del debate como lo pretendió la representación del ICE (cfr. sentencia, página 1873). Agrega que la falta del elemento formal de la descripción de los hechos conlleva a que una acción civil resarcitoria deba ser declarada inadmisible, conforme al artículo 291 del Código Procesal Civil (cfr. sentencia, página 1874), pero que:

«Cuando el defecto formal se detecta al momento de dictar sentencia, la única consecuencia posible es abstenerse de pronunciarse sobre el fondo de la cuestión planteada, porque no es posible hacerlo válidamente» (sentencia, página 1874).

Y más adelante agrega:

«Ante tal panorama, lo procedente es abstenerse de realizar un pronunciamiento en cuanto al fondo de la acción civil resarcitoria interpuesta por el Instituto Costarricense de Electricidad, cuyos defectos formales evidentemente debieron haber sido subsanados en etapas anteriores del proceso, y de no haberse hecho procederse a la declaratoria de inadmisibilidad, sin embargo, como ya se adelantó, a estas alturas del proceso la única solución que encuentra el Tribunal es no pronunciarse en cuanto al fondo para que la parte interesada pueda hacer sus reclamos en la vía civil» (sentencia, página 1879).

Consideramos que el razonamiento del tribunal de juicio es errado: aún suponiendo que la muy detallada descripción de los hechos que echa de menos el a quo constituye un requisito del escrito inicial para constituirse en actor civil (criterio formalista que no comparte esta cámara), en todo caso debería haber resuelto lo que correspondiera en cuanto al fondo del asunto, ya que habiendo llegado a juicio, el proceso no se puede retrotraer a etapas precluidas -admisibilidad o constitución- bajo pretexto de que el actor civil "complemente su acción y subsane el defecto" (sentencia, página 1873) de su solicitud de constitución (lo prohíbe expresamente el artículo 179 párrafo segundo del CPP), mucho menos para remitir a las partes a la vía civil. Esto que dispuso el tribunal de juicio, constituye una clarísima denegación de acceso a la justicia, un formalismo que no tiene ningún asidero razonable en el artículo 112 inciso d) del CPP y que resulta de una interpretación de esa norma que riñe con la regla dispuesta en el artículo 2 del CPP, error que debe enmendarse.

Tómese además en cuenta lo que se dirá en el siguiente acápite de este considerando. B) Respecto a la acción civil resarcitoria de la Procuraduría General de la República. Entre las páginas 1879 a 1892, el tribunal de juicio agrega que tampoco le es posible pronunciarse sobre el fondo de las acciones civiles formuladas por el Instituto Costarricense de Electricidad y por la Procuraduría General de la República, porque ambas hicieron una inadecuada formulación de sus pretensiones, porque "...no existe un daño por el cual deben responder solidariamente todos los imputados, que es el supuesto sobre el cual se liquidaron las pretensiones civiles por parte del Instituto Costarricense de Electricidad la Procuraduría General de la República. Lo que podría existir son daños causados por la conducta delictiva de determinados grupos de imputados, por el cual responderían solidariamente los imputados del grupo y eventualmente terceros, en forma independiente de los eventuales daños causado por otros grupos de imputados " (sic, páginas 1884).

Cada grupo de imputados, explica el a quo, tiene una responsabilidad propia e independiente de los demás grupos, en el tanto la acusación no establece una participación en todos los delitos, de todos los imputados, única posibilidad de responsabilidad solidaria de todos, en la totalidad del eventual daño causado. Además -dice el tribunal de juicio- que hay supuestos en que se descarta la responsabilidad del Estado o del Instituto Costarricense de Electricidad, por lo que era menester concretar los daños reclamados y las pretensiones para cada grupo de obligados solidarios, lo cual no hicieron los actores civiles (cfr. sentencia, página 1886). Señala el tribunal de juicio:

«Al procederse por parte de los actores civiles (Procuraduría General de la República e Instituto Costarricense de Electricidad), a liquidar pretensiones de la manera que lo hicieron, dejan al Tribunal imposibilitado para pronunciarse en cuanto al fondo de las mismas. Para pronunciarse válidamente, tendría el Tribunal que disgregar los diferentes grupos de deudores solidarios, determinar los hechos concretos que le son atribuibles y determinar el eventual daño que esos hechos pudieron haber causado al Instituto Costarricense de Electricidad y o a los intereses colectivos o difusos que representa la Procuraduría General de la República. A partir de lo anterior, es que se podrían valorar las pretensiones civiles, que tendrían que ser modificadas de acuerdo con los supuestos fácticos mencionados, que son la causa de las mismas. Lo anterior no es tarea que pueda realizar el Tribunal, porque se trata de extremos cuya determinación son de resorte exclusivo de las partes y no del Tribunal, quien de hacerlo perdería su objetividad e imparcialidad al suplir las deficiencias de las partes y violaría el principio de congruencia, al resolver fuera de lo pedido.

Lo anterior se agrava ante la circunstancia de que no se realizó ningún intento por establecer el daño individual eventualmente causado por cada grupo de deudores solidarios, de manera que, aunque el Tribunal decidiera hacerle el trabajo a las partes actoras civiles, carecería de los insumos para ello, y de hacerlo, sería en definitiva hasta en sentencia, que los demandados civiles llegarían a conocer cuales eran las concretas, determinadas y específicas pretensiones que se formularon en su contra, en cuyo caso se estaría violando el debido proceso que exige que la concreción de pretensiones deba darse antes de la conclusión del procedimiento preparatorio, para que las partes demandadas civilmente pudieran ejercer debidamente el derecho de defensa, el cual se violentaría si el Tribunal se pronunciara sobre el fondo de las pretensiones tal y como fueron formuladas.» «Unido a lo anterior, tampoco se consideró, que el mismo Instituto Costarricense de Electricidad que demanda la reparación de daños y perjuicios a su favor, es una de las personas jurídicas que, de acuerdo con la ley, están obligadas solidariamente con los demandados civiles a su reparación.

En otras palabras, de haberse producido los daños y perjuicios reclamados por el Instituto Costarricense de Electricidad, dicha institución debe soportar parte de esos daños, al haber intervenido en su producción, sus propios funcionarios públicos (miembros del Consejo Directivo y otros). En otras palabras, y en principio, el Instituto Costarricense de Electricidad es deudor solidario de la totalidad de los daños y perjuicios que reclama, por lo que habiéndolos soportado en su totalidad, lo que equivale a haber asumido por entero la obligación solidaria, en caso de demostrarse su existencia, los demás obligados solidarios, frente al Instituto Costarricense de Electricidad, no tienen una responsabilidad solidaria, sino la responsabilidad que existe entre los deudores solidarios a lo interno de la relación. Al respecto establece el numeral 649 del Código Civil que “Los codeudores solidarios se dividen entre sí la deuda por partes iguales, a menos que hubiere pacto en contrario.”» «Como la acción civil resarcitoria del Instituto Costarricense de Electricidad, responsable civil solidario de los daños que reclama, es dirigida contra otros de los obligados solidarios, el reclamo debe circunscribirse a la parte proporcional que a cada uno corresponde, la cual sólo puede determinarse a partir de la consideración de la totalidad de obligados solidarios, puesto que la deuda se divide por partes iguales entre todos.

Lo que se está pretendiendo hacer valer son las acciones que legalmente tiene un codeudor solidario frente a los demás y no las del acreedor frente a los deudores solidarios. De acuerdo con el numeral 693 del Código Civil, “Toda obligación civil confiere al acreedor el derecho de compeler al deudor a la ejecución de aquello a que está obligado.” En cuanto al monto de la reparación en las obligaciones solidarias, frente a otro obligado solidario, un deudor sólo está obligado a la parte proporcional que le corresponde y no a la totalidad (art. 649 del Código Civil), lo anterior cuando se está en presencia de particulares. En el caso de los funcionarios públicos, cada uno responde de acuerdo con el grado de participación en el hecho y en esa determinación se deberá tomar en cuenta a todos los partícipes aunque no sean parte en el juicio (art. 205 inciso 1º de la Ley General de la Administración Pública).» «Así las cosas, el Instituto Costarricense de Electricidad no podía pretender de los demandados civiles la totalidad de los daños y perjuicios causados, ni tenía una acción solidaria frente a ellos.

En primer lugar, debió determinar una concreta y específica pretensión respecto de cada grupo de deudores solidarios, considerando el daño concretos y específico que el hecho concreto produjo, además, debió concretar, respecto de cada demandado civil y en el contexto de cada grupo de deudores solidarios, la específica pretensión mediante una distribución proporcional de la pretensión, en el caso de los particulares demandados, según el numeral 649 del Código Civil y con respecto a los funcionarios públicos, esa específica pretensión debió considerar el grado de participación de cada funcionario (art. 205 inciso 1º de la Ley General de la Administración Pública), todo lo cual por supuesto debía tener pleno respaldo en la descripción de los hechos, que debía dar el sustrato fáctico a la pretensión, extremos todos que son determinables exclusivamente por la parte actora civil.» «Como ya se indicara, tanto en aplicación de la Ley General de la Administración Pública como del Código Civil, la determinación concreta de la pretensión debía tomar en cuenta no solo a los demandados civiles respecto de cada grupo de deudores solidarios, sino a la totalidad de obligados solidarios según la ley, incluidos los no demandados, quienes tienen que ser igualmente considerados en la distribución a lo interno de la responsabilidad civil en caso de obligaciones solidarias, porque de lo contrario se perjudicaría a los demás deudores solidarios aumentando su responsabilidad.

El Tribunal nuevamente no podría suplir la negligencia de la parte sin vulnerar gravemente importantes principios del proceso civil como lo son el de objetividad e imparcialidad de los jueces, el derecho de defensa y el debido proceso en general, al permitir actuaciones contrarias a las disposiciones legales que regulan la acción civil resarcitoria que afectan el correcto desarrollo del proceso y el derecho de defensa de las partes, quienes sería hasta que se dicte la sentencia, que llegarían a enterarse de en qué consistía el reclamo concreto que se hacía en su contra.» «Similares cuestionamientos pueden hacerse a las acciones civiles planteadas por la Procuraduría General de la República, órgano Estatal al que el Código Procesal Penal le encarga el ejercicio de la Acción Civil Resarcitoria en representación no del Estado, sino de los Intereses Colectivos y Difusos (artículo 38 del Código Procesal Penal).

La Procuraduría General de la República no podía obviar, al formular la acción civil resarcitoria y sus pretensiones, que el Estado y el Instituto Costarricense de Electricidad eran también señalados por la ley como obligados solidarios a responder por los daños y perjuicios a los intereses colectivos o difusos, cuya indemnización se pretende. Lo anterior porque en la eventual producción de los daños y perjuicios intervinieron funcionarios públicos del Poder Ejecutivo, del Poder Legislativo y del Instituto Costarricense de Electricidad. Al no establecer acción civil resarcitoria contra dichos entes, la Procuraduría General de la República incumplió sus obligaciones según el numeral 20 y 21 de su Ley Orgánica. De acuerdo con el primero, “Los procuradores tienen, en cuanto a los juicios en que intervengan ante las autoridades de justicia, las facultades que corresponden a los mandatarios judiciales, según la legislación común, con las restricciones siguientes: les está absolutamente prohibido allanarse, transar, conciliar o desistir de las demandas o reclamaciones, así como someter los juicios a la decisión de árbitros, sin la previa autorización escrita del procurador general, del procurador general adjunto o del funcionario en quien estos deleguen.

No tendrá valor ni efecto alguno, en juicio ni fuera de él, lo que se haga en oposición al párrafo anterior, y la nulidad de los procedimientos, a que razonablemente dé lugar la violación, deberá ser declarada, aun de oficio, por los tribunales de justicia.” El segundo numeral citado señala: “Prohibese a los servidores a los que se refiere el artículo anterior: dejar de establecer las demandas o reclamaciones en las que deban intervenir como actores; (…).”» «De tal suerte, la Procuraduría General de la República, al reclamar el daño social representando los intereses colectivos y difusos, no podía exigir una responsabilidad solidaria total a todos los demandados civiles, sin diferenciar, como correspondía en este caso, entre los diferentes grupos de deudores solidarios, debiendo determinar respecto de cada grupo cual fue el hecho delictivo concreto atribuido y el daño causado a partir del mismo, todo ello sustentado fácticamente en la descripción de hechos.

Al no procederse de esa manera, sino mediante una pretensión global, como si todos los demandados civiles hubieran tenido participación en todos los delitos acusados y sin describir en los hechos el concreto daño causado por el hecho concreto respecto de cada grupo de deudores solidarios, el Tribunal, al igual que en relación con la acción civil resarcitoria interpuesta por el Instituto Costarricense de Electricidad, se encuentra imposibilitado para pronunciarse sobre el fondo de las acciones civiles porque para ello tendría también que realizarle el trabajo a la parte actora civil, respecto de cuestiones que solo atañen a ella, con la correspondiente pérdida de objetividad y vulneración del debido proceso manifestado en el principio de congruencia, en el principio de inviolabilidad de la defensa y en el principio de imparcialidad.» «El proceder de las partes actoras civiles involucran deficiencias de las acciones civiles, que por las razones dichas, impiden al Tribunal pronunciarse sobre el fondo de las mismas.

Es lo cierto que tales defectos pudieron haberse subsanado con una intervención oportuna y adecuada de los tribunales que intervinieron en las etapas anteriores al debate, previniendo su saneamiento, pero al no hacerlo y al admitir las acciones civiles en la forma que fueron planteadas, contribuyeron con que la actividad procesal defectuosa no fuera superada y se mantuviera hasta este momento en que ya no es posible ninguna medida de saneamiento, y por involucrar la actividad procesal defectos de naturaleza absoluta como la violación al debido proceso y la derecho de defensa, no es posible tener por saneada dicha actividad, resultando aplicable lo dispuesto en el numeral 194 del Código Procesal Civil [...]» «Al igual que los Tribunales del procedimiento preparatorio e intermedio, las partes demandadas civiles también pudieron haber alegado los defectos apuntados a las acciones civiles resarcitorias en las etapas previas y no esperar a las conclusiones del debate, en cuyo caso también tuvieron su cuota de responsabilidad en que no se superaran los defectos y pudiera el Tribunal pronunciarse sobre el fondo de las alegaciones, pretensiones y excepciones formuladas.» «Lo procedente, al amparo de lo anterior, es omitir pronunciamiento en cuanto al fondo de las acciones civiles formuladas por la Procuraduría General de la República y el Instituto Costarricense de Electricidad y remitirlos a la vía civil a efecto de que diriman sus pretensiones.» (Sentencia, páginas 1887 a 1892).

Nuevamente es erróneo el razonamiento del tribunal de juicio, nótese que dice que no puede entrar a suplir las deficiencias o negligencias de los actores civiles sin vulnerar su objetividad e imparcialidad, que no puede hacerle el trabajo a las partes actoras civiles de concretar adecuadamente sus pretensiones respecto a cada demandado civil, sin embargo opta por "omitir pronunciamiento" y los remite a la vía civil, para que ahí corrijan todos los supuestos errores que cometieron al constituirse (recuérdese lo dicho en el cápite anterior de este considerando) o al formular sus pretensiones, decisión que realmente compromete la objetividad e imparcialidad del juzgador, porque denota una tendencia (o "paternalismo", como dijo el licenciado Alejandro Batalla en la audiencia oral) favorable hacia los actores civiles, que agravia sensiblemente a los demandados civiles, que se ven privados de una sentencia que defina o resuelva de manera pronta y cumplida la situación hasta tanto los actores civiles no logren hacer bien sus gestiones.

Se ha causado un agravio al impugnante que debe enmendarse en esta vía. C) Sobre a las costas. La cuestión de las costas fue resuelta en el considerando XV, acápite D (sentencia, páginas 1892 a 1893). Dice el tribunal de juicio que resuelve sin especial condenatoria en costas respecto de la acción civil, en razón de que se omitió pronunciamiento sobre el fondo de la misma no se dan los supuestos para una condenatoria en costas, a lo que agrega que las partes actoras civiles tuvieron razones plausibles para litigar. Tal como lo reclama el licenciado Arguedas, por una parte no hay una explicación expresa de por qué cabe suponer que las partes civiles tuvieron razones plausibles para litigar, defecto que deja sin fundamento lo resuelto, el artículo 266 CPP indica claramente que el tribunal debe pronunciarse en forma motivada sobre el pago de costas procesales y personales al dictar la resolución que ponga término a la causa.

Por otra parte, conforme a lo que se ha dicho antes, al haber omitido el a quo pronunciamiento sobre el fondo de las acciones civiles, cometió un error que incide directamente en la fijación de las costas (cfr. artículo 270 CPP), causando agravio a las partes, el cual debe enmendarse en esta vía. D) Conclusión. Los errores indicados en este considerando respecto a las acciones civiles y las costas han causado un agravio al demandado civil [Nombre012] y por aplicación del efecto extensivo, su recurso favorece a los demás codemandados civiles, ya que no se basa en motivos exclusivamente personales (cfr. artículo 443 del CPP). Téngase presente que el artículo 124 del Código Procesal Penal advierte que “Desde su intervención en el procedimiento, el tercero civilmente demandado gozará de todas las facultades concedidas al imputado para su defensa, en lo concerniente a sus intereses civiles”. En cuanto a la corrección o enmienda que corresponde hacer en este caso, no es posible para esta cámara hacerla directamente -como lo pretende el licenciado Arguedas-, sino que se requiere ordenar un juicio de reenvío al tribunal penal competente para que, con otra integración, proceda a una nueva sustanciación de esos extremos (acciones civiles resarcitorias y costas).

La enmienda debe producirse en juicio de reenvío -en esta misma vía penal-, con las garantías del contradictorio para preservar el principio de igualdad procesal (artículo 6 del Código Procesal Penal) y para permitir que las cualquiera de las partes civiles que eventualmente pudieran sentirse agraviadas tengan la oportunidad de impugnar lo dispuesto mediante el recurso de apelación. El juicio sobre las consecuencias civiles y costas deberá realizarse según las reglas dispuestas en el artículo 359 del CPP, y sobre la base de que no se demostró en juicio el hecho acusado por los actores civiles y penal a los codemandados civiles. Por todo lo expuesto se declara con lugar el recurso de apelación del licenciado Cristian Arguedas, se anula la sentencia en su aspecto civil, en cuanto dispuso omitir pronunciamiento en cuanto al derecho de fondo discutido en relación a las acciones civiles interpuestas por el Instituto Costarricense de Electricidad y la Procuraduría General de la República contra los demandados civiles, así como lo resuelto respecto de las costas y se ordena el reenvío del proceso al competente para la nueva sustanciación de esos extremos.

VII.SE RESUELVE EL RECURSO DE APELACIÓN DE [Nombre001] PLANTEADO POR LA LICENCIADA YAMURA VALENCIANO, DEFENSORA PÚBLICA.- 1. En cuanto al delito de cohecho impropio: De los temas propuestos por la licenciada Yamura Valenciano Jiménez, en representación del señor [Nombre001], ha expresado su disconformidad con la sentencia a través de diversos escritos, el primero de ellos es un recurso de «casación» que presentó el día 30 de agosto de 2011 (cfr. Tomo XXXVII, folios 17685 a 17738), y posteriormente en un recurso de apelación por conversión. Esta Cámara procede a resolver los motivos que por sí solos implican la nulidad de la sentencia y la absolutoria del justiciable por el delito de cohecho impropio en la modalidad de corrupción agravada. Sección Primera.- Vicios que por sí solos implican la nulidad de todo lo resuelto. A. Prescripción de la causa. En el primer motivo de la licenciada Valenciano se alega violación al debido proceso por haber prescrito la causa.

Indica que en diversas instancias planteó la excepción de prescripción, y fue rechazada. La razón expuesta por el Tribunal de Mérito para desestimar la prescripción se hizo radicar en la declaratoria de tramitación compleja de la causa que se produjo el 3 de marzo de 2006, considerando los jueces que en virtud de ello no podría aplicar la reducción del término de la prescripción, en virtud de lo dispuesto por el párrafo tercero del artículo 376 de legislación de rito. Según lo expone la defensa, los actos procesales se rigen por la ley vigente en el momento en que ocurren y surten efectos según esta ley. Según la licenciada Valenciano, el artículo 376 CPP no le estaría dando ninguna posibilidad a la declaratoria de tramitación compleja la posibilidad de hacer retroactivos sus efectos ni tampoco la de interrumpir la prescripción. Lleva razón en su reclamo. El plazo inicial de prescripción de la acción penal, en el caso del señor [Nombre001], es de cinco años por el delito de cohecho impropio en la modalidad de corrupción agravada, el cual, de acuerdo con lo establecido en los artículos 340 y 342 inciso l, tiene una pena máxima de cinco años.

Por lo que, cinco años es el plazo completo de prescripción que debía contabilizarse, hasta que sucediera alguno de los actos que interrumpen la prescripción y reducen el termino a la mitad. El primer acto interruptor de la prescripción se dio el 8 de octubre de 2004, fecha en la que el imputado se presentó a rendir su declaración sobre los hechos, por lo que a partir de ese día, el plazo para computar la prescripción pasó de ser cinco años a dos años y medio, o lo que es igual, treinta meses. Dichos treinta meses se cumplieron el 8 de abril de 2007, sin que en el transcurso se diera alguna de las causales de interrupción previstas por el artículo 33 del Código Procesal Penal o de suspensión de las establecidas en el

artículo 34. Por lo cual, para el momento en que se señaló la audiencia preliminar por primera vez, sea, el 10 de septiembre de 2007, la acción penal contra [Nombre001] por el delito de cohecho impropio, ya había prescrito, y con ella, la facultad del Estado de perseguirle penalmente. Los razonamientos que apoyan esta conclusión, ya han sido expresados al resolverse el recurso del Dr. [Nombre012], a los que se remite para evitar reiteraciones innecesarias. Corresponde, entonces, declarar la causa seguida contra [Nombre001] prescrita y absolverle del delito de delito de cohecho impropio en la modalidad de corrupción agravada que se le venía atribuyendo. B. Vicios en cuanto a la determinación del hecho y la valoración de la prueba para determinar los indicios que condujeron a la condena por el delito de cohecho impropio. En el Segundo motivo del Recurso de la licenciada Yamura Valenciano a favor de [Nombre001], se alegó la violación a las reglas de la sana crítica, específicamente las reglas de la lógica, principio de derivación, en cuanto al delito de cohecho impropio.

Señala como normativa aplicable los artículos 1, 6, 9, 142, 361, 363 y 369 del Código Procesal Penal. Plantea la recurrente que se tiene por probado que su representado aceptó una promesa de dádiva por parte de la empresa ALCATEL a cambio de realizar las acciones necesarias para que dicha empresa resultara adjudicataria del proceso abreviado 1-2001, en el marco de sus funciones como asesor de la presidencia y coordinador de la comisión interdisciplinaria encargada del proyecto llamado 400K. Para llegar a esta conclusión condenatoria, el Tribunal de Juicio dio importancia a cuatro elementos probatorios. Por una parte, a un video de la empresa REPRETEL de las 3:59 horas del 29 de enero de 2004 , una invitación a almorzar, según se describe en la prueba número 81, el documento 8 de la prueba número 396 (folios 17, 19 y 21), la nota interna del ICE PE-0102-P de 22 de febrero de 2002, prueba N° 75, folios 324 y 325, y, finalmente, la prueba 686, que contiene la así denominada “propuesta de acción” de [Nombre058].

Según la defensa de [Nombre001], de estos elementos probatorios, no es posible derivar el criterio condenatorio que se dádiva por parte de [Nombre015] y [Nombre035] a finales del año 2000 e inicios del año 2001. Lleva razón en su reclamo. Aun cuando el hecho se considera prescrito, y por esta razón sería innecesario continuar cualquier discusión en cuanto al delito de cohecho impropio imputado a [Nombre001], esta Cámara considera que la determinación del cohecho impropio en su modalidad de corrupción agravada que se le viene atribuyendo no puede derivarse de los elementos probatorios que fueron tomados en cuenta por el Tribunal de Mayoría. Estima esta Cámara que los indicios que intentó construir la sentencia no alcanzan la relevancia y el peso específico necesarios para poder imputar responsabilidad penal a [Nombre001]. Al respecto, debe comenzarse planteando que la propuesta de acción diseñada por el politólogo [Nombre058] no era una invitación para cometer delitos de corrupción y promover la actividad ilícita de funcionarios públicos.

A partir del año 1999 no era posible definir los derroteros que seguiría el tema de la apertura celular en Costa Rica. [Nombre058] diseñó una estrategia que significaba, en esencia, la necesidad de llegar a sectores importantes en la toma de decisiones públicas, y convencerles de la necesidad de enrumbarse por ese camino. En otras palabras, don [Nombre058] estaba apuntando a la necesidad de promover acercamientos que facilitaran el camino de una eventual apertura en el tema de telecomunicaciones, pero su plan no abarcaba el soborno y la promoción de la corrupción de funcionarios públicos. Para el año 1999, en efecto, don [Nombre001] no era funcionario del Instituto Costarricense de Electricidad. La llegada de [Nombre001] a la institución se produce con el objetivo de desentrabar algunos procesos que por aquél momento eran indispensables para el buen discurrir del ICE, y que la pericia de [Nombre001], por su experiencia previa, sería de gran ayuda en esos menesteres.

La decisión de su entrada al ICE es producto de la gestión de don [Nombre052]. Por lo menos aquí, no existe influencia de Alcatel y de [Nombre015] para introducir una persona clave a sus intereses en la estructura del ICE. La propia sentencia, a folio 15894 (folio 1452 de la sentencia, Tomo XXXIII), acepta que [Nombre001] ingresó a trabajar al ICE en octubre del año 2000 en calidad de Asistente Ejecutivo de Administración Superior en la Presidencia Ejecutiva, designación que se formalizó a partir del 01 de enero de 2001. Entre otras actividades que le fueron encomendadas, se contaban la lectura y estudio de documentos, asesoría y recomendaciones en temas que le eran confiados, así como la de representación del ICE en algunos foros ante organismos gubernamentales y no gubernamentales. El fallo alude a la labor de coordinación que le correspondió [Nombre001] en el proceso abreviado 1-2002 de arrendamiento de las 400 mil líneas celulares GSM (folio 1452).

La designación fue comunicada por la Presidencia Ejecutiva a las diferentes Unidades Estratégicas de Negocios (UEN´s) el día 22 de febrero de 2002 (prueba 75, folio 324). A folio 15896, el voto de mayoría afirma que quien nombra a [Nombre001] no es otro más que [Nombre052], quien ratificó en su declaración que la llegada del funcionario lo fue para ayudar a “recuperar la paz” institucional, afectada gravemente por los sucesos acaecidos con el “combo eléctrico”. Don [Nombre052] afirmó haber conocido a [Nombre001] en la Universidad Nacional, en la Escuela de Planificación, y luego de escucharle sobre sus habilidades y características, decidió que era la persona que andaba buscando para esas tareas de pacificación, las que en efecto cumplió (folio 15896, folio 1454 de la sentencia, Tomo XXXIII). En cuanto a la coordinación en el proceso de las concesión de las 400 mil líneas celulares, correspondió a [Nombre001] manejar la comunicación con los diversos grupos para que expusieran sus criterios técnicos, además de estar muy activo en las gestiones que se daban dentro y fuera de la institución, como por ejemplo ante la Contraloría General de la República.

Según lo estima el fallo condenatorio, [Nombre001] era una persona que carecía de experiencia en el tema de las telecomunicaciones, y le sorprende la decisión de don [Nombre052] de contratarlo, sin embargo, no pasa de señalar una eventual negligencia en su designación. Al respecto toma el criterio de doña [Nombre059] (folios 15896 a 15897 folios 1454 y 1455 de la sentencia Tomo XXXIII) quien alude a esa falta de experiencia técnica y jurídica, la que, sin embargo, fue superando con el tiempo. En general, la sentencia va concatenando elementos para considerar a [Nombre001] como una figura clave en el proceso de la definición del proyecto de las 400 mil celulares, actividad en la que se avocó con intensidad, como lo hicieron ver varios testigos que fueron indicados en el fallo, como fue el caso de los señores [Nombre060] y [Nombre061], quienes tuvieron contacto con él y lo conocieron por aquél tiempo, pero también lo ubican en estas tareas don [Nombre062], Director General Adjunto de Alcatel y [Nombre063], Director de la Unidad de Ejecución de Desarrollos y Proyectos del ICE (folios 1455 y 1456 de la sentencia).

De lo expuesto en el fallo, se deduce que en un momento dado, la actividad principal de don [Nombre001] consistió en apoyar y coordinar las actividades relacionadas con el proyecto de las 400 mil líneas celulares. La tesis del tribunal, consiste en imputar a [Nombre001] el haber aceptado una promesa de dádiva, entre finales del año 2000 e inicios de 2001. La promesa provino, supuestamente, de [Nombre015] y de [Nombre035], con el objetivo de que realizara acciones dentro del ámbito de sus funciones como asesor de la Presidencia Ejecutiva del ICE, y como encargado de la ejecución del proyecto de las 400 mil líneas, para favorecer en este tema a Alcatel. El voto de mayoría acepta que esta conclusión debe producirse de manera indirecta, pues se trata de actividades ilícitas, que se fraguan en la clandestinidad y que por ello una conclusión sobre ellas debe provenir de la concatenación de indicios.

Es así como se llega al primer elemento valorado por el Tribunal, esto es, el video de Repretel de las 3:59 hrs. del 29 de enero de 2004, donde [Nombre001] aceptó haber recibido dinero de Alcatel, que asumiría las consecuencias de su comportamiento ilícito y que todo obedeció a una debilidad espiritual de su parte (folio 1457 de la sentencia). La defensora Yamura Valenciano discute este indicio. Sostiene la tesis que su representado tan solo aceptó haber recibido una suma de dinero, pero que en modo alguno eso significa la aceptación de una concreta tipicidad, en concreto, un cohecho, y que más bien se trató de un enriquecimiento ilícito, que ya estaría prescrito. En efecto, la declaración espontánea de don [Nombre001] no da certeza de qué fue lo que cometió en términos de una figura penal, tan solo afirma haber recibido una suma de dinero que consideró un acto ilegítimo sobre el cual asumiría consecuencias.

Según la tesis del tribunal, no era necesario que [Nombre001] calificara su acción desde una perspectiva jurídico penal, que se trataba de una entrevista periodística que debe ser asumida e interpretada judicialmente. Es así que empieza a entrelazar esa declaración de [Nombre001] con la denominada prueba no. 396, que según parece tiene relación estrecha con la prueba no. 75 y la 686, así como con el documento 8, folios 17, 19 y 21, todos con el membrete de Servicios Notariales QC S.A. En lo que se refiere a las notas incluidas en la prueba numerada 396, identificada como documento 8, a folios 17, 19 y 21, prueba a la cual el tribunal dice darle plena credibilidad, la licenciada Valenciano reprocha que se ha violentado el derecho de defensa desde que se arguyó la dudosa autenticidad de los mismos desde que no ostentaban ningún elemento que permitiera saber si fueron enviados o recibidos, además de que estaban sin firma alguna y sin referencia a quién los confeccionó.

Esto se alegó, pero el reclamo fue rechazado por el Tribunal. Según la tesis de la defensa, de estos documentos no se desprende que [Nombre001] haya recibido alguna promesa de dádiva por parte de [Nombre015], y tan solo hace referencia a que el nombramiento de [Nombre001] fue hecho por [Nombre052], y que la intervención de [Nombre001] surge del mismo ICE para desentrabar la ejecución de proyectos. Lo que la nota hace ver, en realidad, es que se da un primer acercamiento con un funcionario de apellido [Nombre061], con quien no hay mucho avance, y que requieren un cambio de interlocutor. Quien suscribe la nota dice conocer a [Nombre001], persona recientemente designada por [Nombre052], y que esta persona podría ser el interlocutor de Alcatel en las negociaciones dirigidas a las nuevas ampliaciones celulares. De hecho la nota, alude a ciertas condiciones de [Nombre001], calificándolo de “más político” y que “no estará contaminado por las influencias que afectan a la administración central”.

De estas afirmaciones surge más bien la idea que se encuentran en él condiciones para mantener una comunicación más fluida. En una nota posterior, se agrega, que se logró que sea [Nombre001] quien “lleve la batuta” en la negociación, esperando ahora una “posición más flexible del grupo negociador”. La lectura de esta prueba no genera en esta Cámara la comprensión de que se haya prometido una dádiva a [Nombre001], sino que se da la idea de que se tiene una persona más proclive al diálogo y a flexibilizar posiciones frente a una necesidad que se entiende también política, debido a la gran presión del mercado de cara a un año electoral. De la misma manera, una nota del 29 de noviembre de 2000 denota entusiasmo, pues se ha avanzado en lograr que el ICE considere otras alternativas a las necesidades inmediatas. Aquí la posición de quien suscribe estas notas va en el sentido de mostrar una perspectiva positiva en cuanto al avance en las conversaciones sobre el tema de la apertura del ICE, pero también se alude a la eventual negativa de la Contraloría a aceptar la propuesta de don [Nombre052] de una eventual compra directa, y a que se avanzaba más bien hacia un proceso licitatorio (cfr. fls. 1458, 1459).

La compra directa, hay que decirlo, fue un objetivo trazado por don [Nombre052], y hacia allí dirigió sus esfuerzos, chocando, no obstante, con la negativa de la Contraloría, como se verá después. El suscriptor de las notas hacía un análisis del avance del proceso de apertura, los tropiezos, las dificultades, y del papel de [Nombre001] en el avance. Una derivación a partir de ello, por ejemplo, de que [Nombre001] había aceptado una dádiva no puede plantearse, tan solo que había alusión a informaciones positivas sobre el clima institucional proclive a la apertura celular. Es así como el tribunal procede a incluir en sus razonamientos una invitación a almorzar de [Nombre015] a [Nombre001], casualmente un día 29 de noviembre, mismo día de una de las notas a las que se ha aludido recién. Las juezas aceptan que un almuerzo no significa nada, pero lo unen a que estas invitaciones también son ofrecidas a [Nombre026] y a [Nombre021], como si ese fuera el modus operandi para el ofrecimiento de dádivas, cuando lo cierto es que hay prueba de que esos almuerzos eran ofrecidos también a otros funcionarios del ICE, que no han sido acusados de ningún delito.

Pero el tribunal de mayoría se concentra en [Nombre001], pero también en [Nombre004], y deduce de estas atenciones una cercanía ilícita, una ventaja institucional apoyada en una promesa remuneratoria, que a la postre beneficiaría a Alcatel en la adjudicación de las 400 mil líneas celulares. El discurso judicial pretende no ver estos elementos como circunstancias aisladas o por lo menos desconectadas de una voluntad de Alcatel de influir todo el proceso de apertura celular y asegurarse su preponderancia a la hora de intervenir en la adjudicación de las 400 mil líneas. Al llegar a este momento de la argumentación, proceden a estudiar la nota interna PE-010-P del 22 de febrero de 2002, remitida por la Presidencia Ejecutiva del ICE a las Unidades Estratégicas de Negocio (UEN´s), donde se informa que para el proceso de contratación abreviada de 400 mil líneas GSM se había nombrado una comisión coordinada por [Nombre001] quien tendría a su cargo el proceso de estudio y de adjudicación del proyecto.

En esa misma línea, se informa que el objetivo de la comisión es el estudio de ofertas, contestación de aclaraciones, evaluación en todos los aspectos, recomendación de la adjudicación, consulta y resolución de posibles apelaciones, todo con la meta de tener el contrato debidamente refrendado. La comisión dependería directamente de un órgano de alto nivel compuesto por [Nombre052], [Nombre061] y [Nombre027]. Debido a que esas notas son recibidas supuestamente por [Nombre015] y personeros de Alcatel Cit en Francia, infieren que [Nombre015] está al tanto de lo que sucedía a lo interno del ICE en torno al proyecto de las 400 mil líneas, y de su complacencia en la designación de [Nombre001] como coordinador de la comisión. Sin embargo, esa complacencia, en general o en específico, no se deriva de esa prueba, aun cuando puede admitirse que lógicamente podía estar satisfecho con el camino que estaba tomando todo el proceso, pero en el que no era responsable únicamente [Nombre001], sino que era una concatenación de otros factores coyunturales, institucionales y hasta de oportunidad, que no eran controlados por [Nombre001], aun cuando este hubiera querido controlarlos.

Es así, que puede concluirse, al menos preliminarmente, que la acusación parte de la idea que a [Nombre001] se le hace un ofrecimiento de dádiva como encargado del proceso de adjudicación de las 400 mil líneas, que lo es por lo menos a partir de febrero de 2001, y no hay claridad de cuáles actos eran esperables de [Nombre001], más allá de obtener alguna posición de ventaja en un proceso que no era controlado por [Nombre001], y que estaba bajo la supervisión tanto de control como de decisión de un órgano de nivel superior. En el voto de minoría se alude a esta circunstancia, en cuanto a la indeterminación de los actos esperados de [Nombre001], que pone en dificultades a la defensa y obstaculiza su trabajo, pues no se sabe qué hizo [Nombre001] que pudiera haber impactado positivamente las expectativas de Alcatel. En contraposición a la tesis del voto de minoría, las dos bases de sustentación principales de la argumentación del voto de mayoría van en la dirección de considerar a [Nombre001] una ficha de Alcatel que logran posicionar en el ICE, y que luego alcanza a convertirse en un artífice de las expectativas empresariales de esta multinacional, logrando, en definitiva la adjudicación de las cuatrocientas mil líneas.

Lo cierto es que la designación de [Nombre001] no proviene de gestiones de Alcatel. Su designación viene de un proceso decisorio en el que no intervino Alcatel, por más que pudiera estar complacida con la designación de una persona “más política” y menos “contaminada” por los vicios propios de la administración pública. De otra parte, tampoco dependía de [Nombre001] la efectiva adjudicación. Su labor de coordinación y de intercambio de comunicación iba dirigida a crear condiciones para tomar una decisión que al final no era de su resorte. Los documentos suscritos por “[Nombre091]”, o que al menos llevan esta indicación, tampoco manifiestan que [Nombre001] haya recibido instrucciones de Alcatel o que haya puesto sus servicios a favor de las expectativas de la multinacional. La verdad es que estos documentos, desamparados de su vinculación y suscripción, no permiten probar lo que el Tribunal quiere derivar de ellos, ni la concatenación con el video o las notas dirigidas a las UEN´s se puede pensar en que [Nombre001] haya recibido una específica promesa por parte de Alcatel.

El video puede permitir derivar la recepción de una dádiva por acto cumplido, luego de la efectiva adjudicación, si es que se quiere extraer una consecuencia jurídico penal de lo afirmado por el justiciable, o, al menos, la aceptación de un enriquecimiento ilícito, pero no es prueba indirecta de una promesa de dádiva, por más que así quiera pensarse dadas las condiciones, decididamente extraordinarias, de esa aceptación pública de una actuación ilegítima por parte de [Nombre001] a periodistas de Repretel. Decididamente estos dineros no fueron recibidos por actos legítimos, así lo aceptó [Nombre001], pero no se contextualizó en la información el por qué se recibieron, o a cambio de qué se recibieron. Sin esa promesa previa, el cohecho cae por su propio peso y solo deja subsistentes figuras subsidiarias que bien pudieron haber sido acusadas por el Ministerio Público. La queja de la defensora sobre el trabajo acusatorio de la fiscalía, y el esfuerzo del tribunal por concatenar indicios, la lleva a discutir los problemas lógicos del fallo, que impiden imputar una conducta de cohecho tanto a [Nombre001] como a [Nombre004], y el amplio margen existente para absolverlos por in dubio pro reo, al menos por no tener claridad de cuáles acciones ilícitas se les perseguía, y en concreto cuáles actos fueron desplegados en relación a las expectativas de Alcatel.

Las juezas del voto de mayoría aceptan que la decisión final del proceso de adjudicación no era de resorte de [Nombre001], pero insisten que para [Nombre015] y [Nombre035] era importante contar con una persona clave en la comisión de coordinación, pues ya tenían a [Nombre027], a [Nombre026] y a [Nombre004] en puestos clave. La condena de [Nombre027] y de [Nombre064] en sendos procedimientos abreviados daba al tribunal certeza de este juego de piezas de ajedrez que diseñó Alcatel para asegurarse el éxito en este proceso adjudicatorio. Suman a ello el documento preparado por el consultor externo don [Nombre058] (folio 1463 de la sentencia), denominado “propuesta de acción”, donde se alude a la necesidad de acercamiento a personas de distintos bandos, sea empresarial, religioso y, sobre todo, político, abarcando todo el espectro ideológico, además de diputados, ex presidentes de la República, precandidatos a la Presidencia de la República, directorio político de Liberación Nacional e incluso la asesoría de un expresidente.

Según el fallo de mayoría, esto habría influido en las consideraciones de [Nombre015], como representante de Alcatel Costa Rica, para llevar a cabo el plan de acercamiento a [Nombre001], [Nombre004], y al resto de implicados en la causa. No obstante, el documento del consultor no propiciaba la creación de una red de sobornos y corrupción, sino que daba consejos de cómo alcanzar un consenso favorable a una solución de apertura telefónica dirigida a la utilización de la red de GSM. El plan estratégico diseñado por este politólogo, encaminado a preparar la participación de Alcatel en el mercado celular de Costa Rica, no implicaba cometer delitos, tampoco se dice que haya que corromper funcionarios públicos con dádivas para lograr su participación y consentimiento. El documento de [Nombre058], como lo expone la defensora Yamura Valenciano, no es un elemento que permita justificar la conclusión de que es la base del plan delictivo corruptor, y mucho menos la fuente de sustentación de los eventuales comportamientos ilícitos de los directores de Alcatel.

En el Considerando “V” de la Sentencia, en algunos antecedentes del caso, se tomó en cuenta que Alcatel era una compañía que estaba ajena a las compras directas de servicios telefónicos que se hacían a Ericsson y Lucent Technologies, empresas ya posicionadas en el mercado nacional gracias a la distribución que hacían de redes TDMA, hasta ese momento dominantes. Según el tribunal de mayoría (folios 974 y 975 de los Hechos Probados-Considerando V-, Tomo XXXII), este estado de cosas no convenía a Alcatel, por lo que sus directivos, entre ellos [Nombre015], planificaron una estrategia de acercamientos para cambiar esa situación. El 26 de enero de 1998, mediante nota dirigida a la Presidencia Ejecutiva del ICE, don [Nombre015] manifestó la intención de Alcatel de donar 2000 líneas GSM-PCS para idéntico número de terminales. En marzo de 1998, se acordó aceptar la donación de Alcatel, con el compromiso que esas líneas no serían utilizadas para llenar las necesidades de la demanda, aspecto que se corrigió después en sesión del Consejo de abril de 1998.

En cuanto al tema de la apertura del ICE a líneas GSM (PCS), el Consejo directivo tomó la decisión de no incursionar en ellas hasta tanto no se incluyera ese tema en la Ley de Telecomunicaciones (Sesión No. 5042 de 2 de febrero de 1999). Ya acá hay visos de que se valoraba desde el año 1999 incursionar en este campo, con la reserva, claro está, que no se haría hasta tanto la ley del ramo no contemplara este nuevo campo de desarrollo. Mientras tanto, otras decisiones del Consejo Directivo del ICE se dirigieron a concertar compras directas de líneas celulares adicionales a Lucent Technologies y a Ericsson, en partes iguales, lo que significaba un movimiento natural, tomando en cuenta que era dicha tecnología TDMA la que dominaba el mercado de telefonía celular por aquella fecha. Luego, mediante otro acuerdo, se decidió aumentar en 10 mil líneas de ese tipo con Ericsson para el área metropolitana.

El movimiento era para aquella fecha, hay que subrayarlo. Fue así que se decidió, a continuación, una compra directa de 100 mil líneas celulares, a los dos proveedores existentes a la fecha (Lucent y Ericsson) al amparo del artículo 79.1 del Reglamento General de Contratación Administrativa (folio 976 y 977 de la sentencia). Según el reporte del fallo, Alcatel no estaba de acuerdo con este curso que habían tomado los acontecimientos, consideró que la compra directa no se justificaba, pues los artículos que se deseaba adquirir no eran exclusivos. El día 23 de mayo de 2000, durante la Sesión No. 5186, Alcatel Cit, hizo una presentación formal al Consejo Directivo del ICE sobre las bondades y ventajas de la tecnología GSM. A raíz de esta presentación, el Consejo pidió a ICETEL que en un plazo de tres meses calendario elaboraran y presentaran un estudio de factibilidad, incluyendo un plan de negocios, que le permitiera al órgano director tomar una decisión al respecto.

El día 30 de mayo de 2000, en la Sesión del Consejo Director No. 5187, luego de algunas manifestaciones de los miembros, se decidió que no era momento para hacer contrataciones directas con proveedores distintos a los ya establecidos o migrar a otra tecnología, pero se estableció un plazo de sesenta días naturales para realizar un estudio de factibilidad, un plan de negocios, y un borrador de cartel de licitación sobre tecnología GSM-PCS, para determinar la viabilidad del cambio de tecnología y la ampliación de proveedores de tecnología de telefonía para próximas contrataciones (número 24, folios 977 y 978 de la sentencia, Tomo XXXII). Hasta aquí no podría decirse que el ICE no estuviera interesado en la migración hacia otra tecnología, o que se desechó toda posibilidad de introducir a Alcatel dentro de los oferentes de tecnología celular en Costa Rica. Esta Cámara estima, como bien lo pondera la defensora Yamura Valenciano, que dichos pasos van dirigidos a crear condiciones decisorias que permitieran migrar hacia otra tecnología, con todos los estudios técnicos necesarios para tomar una decisión razonada al respecto.

Es así que el día 13 de junio de 2000, en sesión del Consejo Directivo No. 5191, se acordó dar un plazo de 45 días naturales a la Subgerencia de ICETEL para presentar un estudio comparativo para continuar conociendo de la contratación de líneas celulares de tipo GSM, dejándose en suspenso lo decidido en la Sesión No. 5182 de 9 de mayo, y se ordenó que el informe solicitado se presentase el día 30 de julio de 2000. Se nota la necesidad de una decisión del ICE sobre el tema de la demanda de líneas celulares que había en el país para aquella fecha, y del marco u horizonte de posibilidades que se abría en aquél momento, que casi se restringía a continuar con el crecimiento en líneas TDMA o migrar a la tecnología GSM, que prometía servicios agregados y precios más favorables. La decisión del ICE parecía estar definida por este factor de demanda, pero, además, por la situación que se presentaba con las tecnologías disponibles.

Es por ello que los estudios de benchmarking (para comparación de costos de instalación), de factibilidad y de propuesta de negocio eran elementos esenciales para una decisión correcta acorde a las necesidades del país atendiendo al interés público evidente en esta materia. Esto se lee de las decisiones del Consejo Directivo del ICE que se reseñan. No obstante, la sentencia interpreta que todo este panorama era adverso para Alcatel, que las decisiones no se tomaban con la suficiente celeridad, y que [Nombre015] y [Nombre035] necesitaban asegurar la preponderancia de Alcatel, pues las acciones de este Consejo no iban dirigidas a acelerar la toma de decisiones. De allí derivan las juezas la necesidad de estos encartados de corromper funcionarios públicos, ligados directa o indirectamente con la decisión, para alcanzar su objetivo de lograr que el ICE abra el proceso licitatorio en líneas celulares GSM y que el resultado final favoreciera a Alcatel (cfr. número 28 del folio 978 de la sentencia, Tomo XXXII).

El 11 de julio de 2000, en la Sesión del Consejo Directivo del ICE No. 5199, se logra comprobar que las decisiones que tomaba el ICE estaban inspiradas en la búsqueda de la mejor tecnología, al mejor precio, con el fin de atender la demanda creciente de líneas celulares que aquejaba al país, a través del sistema de contratación más idóneo conforme al ordenamiento jurídico costarricense. En virtud de estas líneas de orientación, es que se decide conformar una comisión integrada de [Nombre065] y [Nombre004], para que con el apoyo de un consultor externo, se analice la viabilidad jurídica de utilizar un procedimiento especial abreviado de contratación de las empresas proveedoras que permita la adquisición de los equipos de tecnología móvil, en el menor tiempo (número 29, del folio 979 de la sentencia, Tomo XXXII). Los acontecimientos empiezan, entonces, a enrumbarse hacia la adquisición de servicios de telefonía de tecnología GSM.

El Consejo Directivo del ICE, en la sesión No. 5249, de conformidad con las recomendaciones del área técnica, dispuso implementar esta tecnología en la banda de 1800 MHZ, y conforme lo indicó la UEN de telefonía móvil, la que había explorado la factibilidad técnica de 400 mil soluciones de telefonía móvil partiendo de centrales fijas existentes de Alcatel, Siemens, Nortel, Ericsson y Lucent. De aquí se puede derivar la idea que la decisión por la tecnología de GSM no surgió por las presiones de Alcatel, sino que fue un objetivo institucional, basado en decisiones técnicas y de recomendaciones de negocio que permitían observar a la tecnología de GSM como una oportunidad para satisfacer la demanda existente y el crecimiento esperable del mercado costarricense. La Asesoría Legal del ICE, mediante el documento T-15547 ALCO 1187 de 5 de diciembre de 2000, y tomando en cuenta la adaptabilidad, convergencia tecnológica e interés público, consideró idónea la contratación directa.

El Consejo Directivo del ICE razonó, a su vez, que la tecnología GSM, por ser de estándar abierto, permitía la participación de varios oferentes, lo que incidiría positivamente en la disminución de los costos de infraestructura y en el costo de las terminales finales para los consumidores. Sin duda, se trataba de consideraciones que iban en beneficio del país, de los consumidores, y en todo caso, de las expectativas de negocio y crecimiento del propio ICE. Había también un aval de una dependencia interna del ICE, como lo era la Asesoría Legal, la cual consideró adecuado el proceso de contratación directa. En la Sesión citada No. 5249 se decidió solicitar permiso a la Contraloría General de la República para ampliar las centrales mediante el procedimiento de contratación directa, y don [Nombre052] firmó las notas dirigidas al órgano contralor. Finalmente, la Contraloría no avalaría el sistema de contratación directa y se decantaría por un procedimiento concursal abreviado.

La nota suscrita por el Lic. Manuel Martínez Sequeira, Gerente de la División de Asesoría y Gestión Jurídica de la Contraloría General de la República, de fecha 23 de enero de 2001, se conoció por parte del Consejo Directivo del ICE en la Sesión No. 5260 del 25 de enero de 2001. En esa nota se califica el procedimiento de “contratación directa” como no viable, pero por los motivos de interés público esbozados, el ente contralor le autorizó al ICE implementar un “procedimiento concursal abreviado” (cfr. sentencia, folio 980, Tomo XXXII). En la propia sesión referida, la No. 5260, el Consejo Directivo acordó instruir a la Subgerencia de Telecomunicaciones, que de inmediato, se efectuara una publicación en todos los diarios de circulación nacional, con el objetivo de invitar a potenciales oferentes de estos equipos, lo que implicaba no sólo a los competidores existentes, algunas de ellas ya proveedoras del ICE, sino todas aquellas que se ajustaran fielmente a los protocolos de la tecnología GSM.

A folio 981 de la sentencia, se puede leer lo que se discutió y analizó en la Sesión Extraordinaria No. 5271. El espíritu de dicha sesión se orientaba por valorar los problemas para satisfacer la demanda existente en líneas de telefonía celular, donde con los movimientos previstos para adquirir más líneas se atendería apenas la demanda existente, quedando aun un faltante de más de dos mil seiscientas cincuenta solicitudes. El Consejo Directivo tomó en cuenta la donación hecha por Alcatel, que fue recibida desde el 5 de mayo de 1998, equipo de tecnología GSM que brindaba la oportunidad de atender la demanda existente y hacerlo con precios y condiciones de funcionamiento favorables y razonables para la institución (folio 981 del Tomo XXXII de la sentencia). Se observó que esta era una vía idónea para mitigar la demanda de líneas y se acordó aceptar la propuesta de la UEN de Servicios Móviles para la ampliación del sistema celular GSM en 160 mil líneas, mediante la aprobación de la contratación directa número 108792 con la empresa Alcatel CIT como fabricante de los equipos y la Arrendadora Interfin S.A. como la empresa arrendadora de los mismos (folio 981 de la sentencia, número 38, Tomo XXXII).

Curiosamente, el 20 de marzo de 2001, cuando se sometió a votación la aprobación del acta de la sesión No. 5271, el sentenciado [Nombre027] solicitó que se derogara en lo que respecta a la ampliación de las 160 mil líneas celulares por compra a la empresa Alcatel. La moción de [Nombre027] se sometió a discusión y fue rechazada. En contra de la propuesta de [Nombre027] votaron [Nombre052], [Nombre026], [Nombre066] y [Nombre004], mientras que los directores [Nombre027], [Nombre067] y [Nombre055] votaron a favor, por lo que el acta 5271 quedó firme. El camino quedaría abierto, entonces, para trabajar en la adquisición de líneas de tecnología GSM y se haría mediante el proceso abreviado sugerido por la Contraloría General de la República. Ahora bien, en cuanto al proceso abreviado 1-2001, la defensora Yamura Valenciano señala falencias en la valoración hecha por el Tribunal de Juicio, y subraya que una de ellas consiste en no haber estudiado a fondo el proceso de licitación.

A folio 1170 de la sentencia, se afirma que las defensas de los diversos imputados, consideran el procedimiento de adjudicación lícito en virtud que así lo determinó el perito [Nombre089], pues se cumplieron todos los pasos ordenados legalmente para lograrlo, además la propuesta de Ericsson presentaba incumplimientos y defectos que dieron lugar a su exclusión. Insisten, el favorecimiento a Alcatel no se produce, según las juezas, por la observancia o no del procedimiento descrito, sino en fases previas, como cuando indican que [Nombre001] despliega actos preparatorios o cuando se da la votación en la Junta Directiva, donde participan los directivos [Nombre027], [Nombre004] y [Nombre026] (folio 1171 de la sentencia). En una palabra, para el Tribunal de Mérito, aun cuando se hayan satisfecho las etapas de publicación del cartel, que Alcatel haya sido una oferente, que Ericsson haya sido descalificado, que la apelación de esta última empresa haya sido desestimada y que la Contraloría refrendase el contrato, no puede considerarse -según la sentencia de mérito- que no haya habido acciones corruptoras y corruptas (folio 1171 de la sentencia).

Según la defensora, las juezas hacen menciones al procedimiento 1-2001 pero no hay un estudio serio del mismo. Si se hubiera hecho, dice la licenciada Valenciano, sobre todo en la vista de los recursos de apelación presentados, se habría dado cuenta el Tribunal de mérito que el proceso de decisión estuvo acompañado de estudios técnicos que reflejaron que todos los aspectos de importancia se tomaron en el procedimiento seguido se describe así: “…El cartel se elaboró de manera pública, previa convocatoria a toda la industria de telecomunicaciones con presencia en el país o sus representantes debidamente acreditados. Se hicieron talleres de trabajo en el hotel San José Palacio donde se armó el cartel con sus requisitos técnicos, financieros, tecnológicos y jurídicos y el procedimiento de recepción de ofertas. Ello condujo a la articulación del cartel de licitación que se publicó finalmente.

El sentido de hacerlo de esta manera fue lograr una especie de consenso entre la industria y el ICE que permitiera una propuesta tecnológica de alto nivel y que a la vez cumpliera con los plazos impuestos por la Contraloría y las disposiciones de la Ley de Contratación Administrativa, ya que si el cartel se hacía de manera conjunta, la etapa de objeciones al cartel se reduciría de forma importante y con ello los tiempos del proceso en sí”. La testigo licenciada Mónica Valerio De Ford fue clara al señalar que: “…Las 400K fue un contrato muy grande de leasing, de GSM. Contrato complejo de obra civil y otra de arrendamiento de equipos, fue un proceso muy abierto desde el principio, que desde antes de publicar el cartel se invitó a todas las empresas. Reuniones por parte del ICE con equipos del ICE, todas las empresas llevaron a sus equipos para participar”. El cartel de licitación no llevaba el “ADN” de Alcatel, sino que fue fruto de un trabajo transparente, público y discutido ampliamente con empresas como Lucent y Ericsson que ya eran proveedoras del ICE, pero también participaron Nortel y Motorola aparte de Alcatel.

El proceso reflejaba, como lo planteó [Nombre056], un procedimiento abierto y con participación de todas las empresas interesadas. Doña [Nombre059], expresó el 14 de junio de 2010, además de lo planteado por [Nombre056], que en el proceso se tuvo en cuenta las restricciones presupuestarias del ICE, por lo que era un proceso donde hubo análisis de los diversos elementos involucrados, donde empresas como Alcatel, Nortel, Ericsson, Nokia, Siemens y Lucent hicieron sus contribuciones, en reuniones que tuvieron lugar en el auditorio del ICE, pero también en un Hotel capitalino, que ella no supo determinar si fue el Corobicí o el San José Palacio. A raíz de estas comprobaciones, es que la defensa sostiene que no era factible pensar que Alcatel hiciera un ofrecimiento al imputado [Nombre001] recién a finales del año 2000, pues la entrada de Alcatel a la tecnología de GSM ya estaba dada y la licitación misma no fue una idea del ICE, ni de [Nombre001], sino de la Contraloría.

Además, para ese momento tampoco podía hablarse del proyecto de las 400 mil líneas ni un proceso de contratación, pues esto fue algo que surgió de la propia Contraloría en fecha 23 de enero de 2001. Por ello no era posible que se le ofreciera una dádiva en el año 2000 para que realizara efectivas acciones para lograr una contratación exitosa que en ese momento no era conocida. De la prueba documental, según lo afirma la licenciada Valenciano, y del razonamiento judicial es posible construir una falacia lógica en la que incurren las juezas al determinar el hecho número 132. En él se establece que fue [Nombre001], junto a otros funcionarios el ICE, los que lograron que se abriera el concurso para la compra de telefonía celular y la adjudicación del contrato de las 400 mil líneas GSM a favor de Alcatel, y que fue precisamente por ello que se le entregó la dádiva. No obstante, y tal y como ella lo explica, no fue que [Nombre001] lo “logró”, ni que se abriera el concurso para la compra de telefonía celular, que fue una decisión de la Contraloría, sin participación del ICE, pues este último prefería proceder a la compra directa.

Tampoco se podría decir, subraya la apelante, que [Nombre001] haya logrado que se adjudicara la licitación a Alcatel, pues dicha recomendación de adjudicar fue producto de un amplio estudio de las ofertas que fueron presentadas únicamente por dos empresas: Alcatel y Ericsson, que fueron valoradas jurídica, técnica y financieramente por funcionarios de unidades especializadas del ICE, que no estaban bajo la influencia de [Nombre001], aspecto este último que resalta, especialmente, por las múltiples consideraciones técnicas, de oportunidad legal y financiera, que no eran de la experticia de [Nombre001], y donde él no podía ejercer influencia ni control. Es por ello, que las acotaciones de la sentencia sobre la base indiciaria para imputar estos hechos a [Nombre001] caen por su propio peso, y por el sólido contenido de la prueba habida sobre el procedimiento abreviado bajo análisis, que permite derivar la corrección jurídica y técnica para su adjudicación.

Si se hace el recorrido que esta Cámara ha hecho, siguiendo los puntos planteados en el Considerando “V” del fallo bajo examen, donde se expresa el contexto de toda la adjudicación de las líneas GSM, puede observarse, sin duda, que la decisión no fue fácil. Había muchas razones para continuar con el crecimiento de la plataforma TDMA, y continuar con sus limitaciones técnicas o abrir el mercado nacional a una tecnología que empezaba a utilizarse por doquier en el mundo, con grandes ventajas y servicios de valor agregado, que permitía, además, atender con prontitud las necesidades de nuevas líneas celulares que los costarricenses requerían. La sentencia de mérito trató de plantear un panorama donde Alcatel se sentía excluida de todos los procesos de compra directa y urgía de decisiones que permitieran la apertura a la nueva tecnología que ella podía suministrar. Se sostiene la idea que para agilizar el proceso de decisiones era necesario contar con figuras clave que apoyaran la orientación hacia este camino, y que, además, favorecieran a Alcatel.

En otras palabras, la sentencia de mérito intentó leer las diversas sesiones del Consejo Directivo encontrando en ellas el “síntoma” de una decisión corrupta, que terminaría por beneficiar a un oferente que no había actuado con transparencia, y que hizo uso de estrategias corruptoras para asegurarse el resultado exitoso del proceso. Sin embargo, la lectura de esas sesiones y sus acuerdos permite ver a un Consejo Directivo que quería satisfacer el interés público, atender la demanda existente y preparar al país para los retos que ya se avizoraban en el horizonte. Antes de tomar cualquier decisión, se piden estudios técnicos, estudios comparativos, diseños de estrategias de negocio y poder saber si era conveniente y conforme al interés público la decisión de encaminar al país hacia la tecnología GSM y desplazar la hasta ese momento dominante tecnología TDMA. Esta Cámara puede percibir que había interés en dicha migración y los estudios técnicos avalaban ese camino.

No se pierde de vista que Alcatel había donado equipo y algunas líneas de GSM que el ICE aceptó, todo bajo la condición de no utilizarlas para paliar la demanda de líneas telefónicas. Con todo, Alcatel presenta las ventajas de esta tecnología en una exposición al Consejo Directivo, y esta genera una reacción positiva. Se piden estudios técnicos y luego de benchmarking con el objetivo de analizar la oportunidad técnica y la necesidad del cambio tecnológico. Todo ello permite estimar que para el 9 de mayo de 2000 había, al menos en gestación, un interés por esta nueva tecnología. Todo desembocaría después en una propuesta de cartel de licitación que se inspiraba en la apertura a la nueva tecnología GSM, y con estudios técnicos y de marco legal que avalaban los pasos que estaba dando el ICE en esa dirección. El Tribunal de Mérito, en su voto de mayoría, no detectó dicha tendencia, y consideró que para el 23 de mayo de 2000 no había una declaración clara del ICE en ese sentido, cuando como se ha visto, el propio Consejo Directivo valoró el interés público de asumir una tecnología que satisficiera la demanda, que estuviera en capacidad de mantener un número amplio de oferentes y con ventajas también para el público consumidor.

Todo esto se decía ya en mayo de 2000, por lo que hay una contradicción importante en el fallo a folio 1117, donde el Tribunal de Mérito, en su voto de mayoría, considera que “…al margen de las ventajas económicas de la propuesta planteada por Alcatel en dicha sesión, o de las bondades de la tecnología GSM-, lo cierto es que el acuerdo descrito de la directiva de la institución permite establecer que aún para el 23 de mayo de 2000, no existía una determinación clara, ni certera de dicho órgano de incursionar en la tecnología GSM. Se observa que, por un lado, el órgano colegiado estaba ordenando un estudio de mercado con un plan de negocios para que el consejo pudiera tomar una decisión. Por otra parte, disponía que tal estudio se elaborará en el plazo de 3 meses calendario, y, finalmente, se establecía que dicho análisis debería acompañarse con una propuesta de cartel de licitación pública, lo cual resultaba contradictorio porque si todavía no se había tomado la decisión de optar por la tecnología GSM, no resultaba entendible cómo el consejo, simultáneamente, establecía que se debería acompañar del cartel para el concurso público.

(sentencia, folio 1117, tomo XXXII). Lo cierto es que había varios planos de decisión: por una parte, la satisfacción de la demanda existente de nuevas líneas de telefonía, y la decisión hacia una tecnología que permitiera atender de mejor manera el interés público en comunicaciones telefónicas de calidad. Las sesiones del Consejo Directivo muestran estos dos planos de una manera muy clara, y se observa como los pasos de la decisión se acompañaban de los estudios técnicos y de las opiniones de carácter negocial y de oportunidad que eran del caso. Dice el voto de mayoría que había una contradicción, pues aun cuando no se había tomado una decisión por optar por la tecnología GSM, no entienden por qué el Consejo solicita acompañar el cartel para el concurso público. Esto era líneas celulares, en cantidades iguales, a los dos proveedores existentes, dentro del marco de los equipos disponibles a la fecha.

Esto conllevaba, necesariamente, continuar con los procesos de compra directa que el ICE ya había realizado antes. La apertura de un cartel de licitación era precisamente para permitir la participación de varios oferentes, no solo de Alcatel, en dicho proceso. De hecho, intervendrían aquellos competidores que tuvieran experiencia en el suministro de servicios de tecnología celular que permitieran al ICE ofrecer calidad a un buen precio y con prontitud. Como bien lo postula la defensora Yamura Valenciano, en la defensa oral de su impugnación, lo que más convenía a Alcatel era la compra directa y no el procedimiento abreviado. En la compra directa se distribuiría, proporcionalmente, la adquisición de soluciones celulares para cada uno de los oferentes, y allí intervendría, con seguridad, Alcatel. Mientras tanto, el procedimiento abreviado tenía varias circunstancias incontrolables para Alcatel: el número de oferentes, las ofertas económicas y técnicas, y la posibilidad evidente de no salir victoriosos.

Mientras tanto, los movimientos del ICE, por vía de don [Nombre052], iban en dirección a la compra directa de tecnología a cinco competidores. Esta salida no sería avalada finalmente por la Contraloría, la que, haciendo un ponderación del interés público que había sido expuesto por el propio Consejo Directivo del ICE, indicaría la conveniencia del procedimiento abreviado. La propia sentencia subraya, con claridad, que a Alcatel se le negó la posibilidad de participar en la compra directa de las 100 mil líneas celulares originales, y que para la adquisición de la tecnología GSM se haría una licitación pública (folio 1119 de la sentencia, tomo XXXII). Se requirieron los estudios técnicos del caso con el objetivo de poder proceder a la licitación y se dejó un plazo de 60 días para obtener dichos estudios. Las jueces del voto de mayoría prefieren decantarse por ver el camino hacia la adquisición de tecnología GSM como incierto, o al menos poco claro, y no como una decisión inmediata.

Sin embargo, aceptan que estaba condicionada a la elaboración de estudios técnicos. Se cita la posición de [Nombre027] y de [Nombre004] en el sentido de que ellos insistían en la compra directa de más líneas celulares de tecnología TDMA, la cual tendría que ser realizada a los proveedores ya presentes en el ICE que eran Lucent y Ericsson. Aquí no estaba ni podía estar Alcatel. A folio 1122 de la sentencia se lee, con claridad, no sólo que las juezas desechaban la consistencia de la decisión de ir hacia la tecnología de GSM por parte del ICE, sino que también había un doble discurso en el Consejo, pues, mientras se valoraba las ventajas del multiproveedor que ofrecía tecnología de GSM, se continuaba con las contrataciones directas, desconociendo las juezas los dos planos decisiones que han sido planteados más atrás, y que se justifican por la dependencia del ICE de la infraestructura de TDMA que había sido dominante hasta la fecha en el país.

Las mismas juezas subrayan, también, que los estudios de benchmarking señalaron que había una caída de precios en las interconexiones celulares, por lo que el camino hacia una apertura de tecnología no era descabellada sino un paso natural que había que valorar, y en lo que estaban, claramente, los directivos del ICE. Ahora bien, subrayan las juezas la campaña realizada por Alcatel y otros proveedores en medios de comunicación y los movimientos para tratar que el Consejo tomara decisión en el tema de la apertura. De ahí deducen que [Nombre015] y [Nombre035] entendían que los intereses comerciales de Alcatel estaban en peligro y que sus posibilidades de comunicación con el ICE reducidas en virtud del ambiente tirante que se había desatado. A partir del folio 1123 analiza el tribunal de mayoría la adjudicación de las 400 mil líneas celulares. La defensora Yamura Valenciano discute que las juezas hayan podido ver actos preparatorios de [Nombre001] para favorecer a Alcatel en dicho procedimiento, pero que dichos actos nunca se describen.

No se sabe si le reprochan a [Nombre001] haber trasladado información confidencial a Alcatel o recibir propuestas fuera de tiempo o algún acto ilegítimo o antijurídico. Según la impugnante, de una lectura del procedimiento licitatorio, se puede derivar, con claridad, que el procedimiento fue transparente, con amplia participación de los oferentes, con aportes de todos, tanto de Siemens, Lucent, Ericsson y hasta de Alcatel. Siemens, luego, decide no participar, por condiciones propias de la licitación, pero hubo una idéntica oportunidad de contribuir al proceso. Pero discute la defensora que las juezas hayan visto en todo ello un dolo. El procedimiento se lleva a cabo siguiendo los procedimientos previstos en la ley. A este procedimiento se presentaron tan solo dos oferentes: Consorcio Ericsson II y la oferta conjunta entre Alcatel CIT y el Banco Centroamericano de Integración Económica (BCIE).

La oferta de Ericsson fue descalificada por defectos técnicos, mientras que la de Alcatel-BCIE cumplía con los requisitos establecidos en el cartel, por lo que se acordó, unánimemente, adjudicar el procedimiento concursal abreviado (sentencia, folio 1127, Tomo XXXII). Don [Nombre052] declaró en juicio, se subraya en el fallo, que las instancias técnicas del ICE recomendaban, todas, la adjudicación a Alcatel, agregando, además, que con la adjudicación de las 400 mil líneas se resolvió gran parte de la demanda de líneas móviles, y que la negociación fue positiva y justificó la necesidad de migrar a la tecnología GSM para brindar más y mejores servicios a los usuarios de nuevas tecnologías, extremo en el que también coincidieron los exdirectivos [Nombre055] y [Nombre067] (folio 1127, tomo XXXII de la sentencia). La apelación de Ericsson ante la Contraloría, por su descalificación, fue declarada sin lugar, según se puede ver en la prueba No. 640 que contiene copia certificada de todo el Procedimiento Concursal Abreviado No. 01-2001.

El contrato que se suscribió para la ejecución del arrendamiento con opción de compra de las 400 mil líneas de tecnología GSM en la banda de 1800 Mhz superó los 149 millones de dólares, y fue refrendado por la Contraloría General de la República (ver oficio No. 2543 DI-AA-698, folios 341 a 3446, Tomo IX (prueba 10), refrendo que se produjo a inicios del mes de marzo de 2002 (folio 1128 de la sentencia, Tomo XXXII). Es claro entonces que en estos dos pilares que la sentencia para encontrar culpable a [Nombre001] no tienen sustento: por una parte la promesa de dádiva se cae porque la migración se decide mucho antes de la fecha en que la acusación ubica la promesa de dádiva a [Nombre001], así como porque es fácilmente verificable, como lo ha hecho esta Cámara, que la decisión por el procedimiento abreviado es una recomendación de la Contraloría General de la República, que se aparta, directamente, de la voluntad de don [Nombre052], quien quería seguir un camino distinto mediante el procedimiento de compra directa, que hubiera beneficiado directamente a Alcatel por haberla incluido entre los proveedores que en cantidad proporcional habrían dado una cantidad específica de líneas celulares de tecnología GSM, sin la incertidumbre que creaba un proceso licitatorio en el que no había garantías de ganar.

Motivos de Inconformidad De [Nombre001] en cuanto al Cohecho. Conclusiones: En cuanto al hecho probado 28 y su comparación con el hecho probado número 35, indica la apelante que hay una contradicción que describe de la siguiente manera: “…puesto que en el primero el tribunal indicó que [Nombre015] y [Nombre035] determinaron que era necesario recurrir al ofrecimiento de dádivas para que el ICE iniciara el proceso licitatorio, pero en el hecho 35 tiene por probado que fue el ente contralor el que autorizó el procedimiento concursal abreviado, o sea, la licitación. Entonces, como puede haberse probado que Alcatel le ofreció a [Nombre001] dinero para que lograra abrir el concurso, si la misma sentencia indica que el concurso lo abrió la Contraloría…” Hace referencia la apelante a una serie de estudios, que se hallan en la copia del expediente de la licitación 1-2001:

• Estudio legal de las ofertas, folios 1939 a 1907. Es del 16 de agosto de 2 001.

• Estudio y recomendación de adjudicación procedimiento abreviado 1-2001, de la UEN Servicios móviles, folios 2037 a 2026.

• Estudio financiero, folios 2025 a 2006.

• Estudio técnico de grupo de infraestructura y energía planificación de red, de 10 agosto 2001, folios 1954 a 1953.

• Estudio técnico de grupo de generalidades, radio y servicios de 9 de agosto 2001, folios 1952 1950.

• Estudio técnico de grupo de conmutación, de 8 de agosto 2 001, folios 1949 a 1940.

Se subraya que la oferta de Ericsson fue declarada inviable por contener, al menos, 32 incumplimientos insubsanables al cartel. Fue entonces que se dio la apertura de la oferta económica de Alcatel, luego de lo cual se hicieron nuevos estudios ya con el precio de la oferta en mano e igual se determinó que era conveniente para el ICE contratar con Alcatel. La figura mediante la cual se tramitó el proyecto, fue la de arrendamiento con opción de compra. Esto fue financiado con el Banco Centroamericano de Integración Económica, quien era el propietario de los equipos a instalar, siendo Alcatel la encargada de la operación y mantenimiento de la red y de la capacitación de los funcionarios del ICE. Por ello, y aquí insiste la impugnante, fue el área encargada la que hizo la propuesta de adjudicación de la licitación de manera fundada, y el Concejo Directivo el día 28 de agosto del 2001, en la sesión N° 5326, adjudicó a Alcatel el contrato de las 400.000 líneas celulares.

La empresa Ericsson apeló dicha decisión ante la Contraloría, el 14 de octubre del 2 001, recurso que fue declarado sin lugar el 19 de diciembre del 2011, dándose el refrendo del contrato el 7 de marzo del 2002. Concluye así que el Tribunal llega a una conclusión incorrecta sobre la participación criminal de [Nombre001], no sólo porque no indica cuáles fueron las “acciones necesarias” que éste desplegó para lograr la apertura del concurso y la adjudicación del contrato a Alcatel, como porque dichos procesos se dieron, y hay prueba de ello, a través de procedimientos lícitos y plenamente refrendados por departamentos técnicos del ICE y de la propia Contraloría, siendo esta última la que tomó la determinación de realizar un procedimiento licitatorio como el que finalmente se produjo. Al respecto de las conductas de cohecho impropio, plantea la apelante lo siguiente: “…Los hechos acusados, como cohecho impropio, a [Nombre001] van del número 133 al 187, de los cuales sólo cinco intentan de manera imprecisa describir la conducta imputada.

El resto de numerales fueron dedicados por la fiscalía a describir el destino del dinero que [Nombre001] recibió. Lo que corresponde con el hecho de que una gran parte de la prueba testimonial llevada al debate lo fuera para determinar si [Nombre001] gastó el dinero en vacas, carros o motocicletas. El tribunal hizo lo mismo…” Según la defensa, su estrategia fue la de indicar que no debía prestarse tanto interés al dinero, pues su existencia y pago podría hacer que la conducta de [Nombre001] encuadrara en un hecho penal distinto, sino más bien a los defectos de la acusación, y a la imposibilidad de que los hechos que contenía pudieran sostenerse, y que más bien relataban una historia diferente, que hacía pensar que el dinero pudo haber sido hecho llegar a [Nombre001] por razones ajenas al tema de la adjudicación de las 400 mil líneas celulares GSM. Insiste en que hubo un forzamiento de las pruebas para que cuadrasen en los términos de la acusación, sin atender a los compromisos del principio de derivación, de la sana crítica y el debido proceso.

Plantea la recurrente que se tiene por probado que su representado aceptó una promesa de dádiva por parte de la empresa ALCATEL a cambio de realizar las acciones necesarias para que dicha empresa resultara adjudicataria del proceso abreviado 1-2001, en el marco de sus funciones como asesor de la presidencia y coordinador de la comisión interdisciplinaria encargada del proyecto llamado “400K”. Esta Cámara coincide con la defensora Valenciano, en el sentido que la participación de [Nombre001] en la adjudicación del procedimiento abreviado no fue ni importante ni transcendente. Todo indica que la adjudicación coincidió con elementos objetivos que contribuyeron a respaldar la propuesta técnica y económica de Alcatel, empresa esta última que recibió el aval de las instancias técnicas del ICE, además de ser la única empresa que terminó por ser considerada ante la descalificación de Ericsson por los defectos técnicos que afectaron su propuesta.

El procedimiento abreviado no tenía el ADN de Alcatel, lo que quiere decir que la configuración de los requisitos no fue hecha tomando en cuenta lo que Alcatel podía o quería ofrecer, sino que el proceso de confección fue abierto y participativo, con la colaboración de todos los potenciales oferentes, todo con el objetivo de configurar la mejor propuesta, tomando en cuenta las necesidades tecnológicas y financieras del ICE, institución esta última que quería atender, de la mejor manera posible, el interés público preponderante en obtener no sólo las líneas telefónicas para atender la demanda existente y futura, sino también a un costo razonable para el ICE y los ciudadanos. Es por ello que la vinculación de [Nombre001] por la vía de los indicios que apunta el Tribunal de Mayoría no permite tener como asentados los aspectos que integran el tipo penal de cohecho impropio, y permiten considerar que la fijación de los hechos en su contra no tiene la solidez y la consistencia que requiere una sentencia condenatoria, y esto daría sentido para anular el fallo. 2.

En cuanto al delito de fraude de simulación. En el tercer motivo del recurso de la licenciada Yamura Valenciano a favor de [Nombre001], se alega violación a las reglas de la sana crítica, específicamente las reglas de la lógica, principio de derivación, en cuanto al delito de fraude de simulación. Sostiene la recurrente, que el tribunal tuvo por probado que el imputado [Nombre001] traspasó de manera fraudulenta dos vehículos placas [Valor037] y [Valor038] a la Sociedad Anónima Dominical Antigua, con la finalidad de sustraerlos de las posibles consecuencias de un proceso penal en su contra, avisado de esto por las noticias que circulaban a nivel nacional. La acusación de sustentó en los siguientes hechos:

- La salida a la luz pública de noticias que mencionaban a Servicios Notariales QC como una de las empresas que depositaron dinero por parte de Alcatel y el conocimiento que [Nombre001].

- La obtención por parte de [Nombre029] y [Nombre001] de la sociedad anónima Dominical Antigua.

- La comparecencia de [Nombre029] y [Nombre001] ante el notario [Nombre028] el día 30 de septiembre de 2004, para la venta de tres vehículos a la sociedad Dominical Antigua.

Al respecto del delito de Fraude de Simulación parte la impugnante del aserto de que no todas las personas son asiduas a darse cuenta de sucesos y eventos de interés por vía de los periódicos y telenoticieros. No obstante, lo cierto es que en el caso de los hechos relacionados con el famoso caso “CAJA-FISCHEL”, la difusión de lo ahí acaecido, del curso de los dineros que pagaron dádivas y otras regalías a quienes intervinieron en los temas ahí investigados ocupó a todo el país por bastante tiempo, difundiéndose detalles que eran comentados por todos los ciudadanos. No es posible seguir el razonamiento de la defensa en el sentido de que la actuación de [Nombre001] fue descontextualizada de dichos eventos noticiosos y sin ningún dolo de simular contratos para ocultar beneficios patrimoniales que había obtenido de manera ilegítima. Es así como a partir de los hechos 183 y 184 se extrae que el Tribunal tiene por probado que fue a mediados de 2004 que se divulgó en medios de prensa acerca de negocios corruptos realizados por funcionarios de la Caja Costarricense del Seguro Social.

A raíz de ello, tanto [Nombre001] como [Nombre029], ambos de apellido [Nombre068], supieron de las pesquisas y del involucramiento de Servicios Notariales QC S.A. como parte de la trama criminal para pagar las dádivas en el caso CAJA-FISCHEL. Con el objetivo de mantener a buen recaudo de las eventuales investigaciones que se iniciarían, [Nombre001], se puso de acuerdo con su hermana para distraer estos bienes mediante actos jurídicos simulados. La defensa cuestiona esta derivación fáctica pues no se demostró, o al menos no existe argumentación que demuestre que [Nombre001] era una persona asidua a leer periódicos nacionales o bien a observar los telenoticiarios del país, pero lo cierto es que dicha circunstancia no es nuclear para impedir la inferencia judicial. No es necesario suponer que sólo los ciudadanos que leen periódicos y observan telenoticiarios conocían el detalle de las pesquisas periodísticas y luego del Ministerio Público sobre el tema CAJA-Fischel, la dimensión del caso, el tipo de personas involucradas, y la trascendencia nacional del tema tuvo que ser objeto de comentario en el círculo cercano e inmediato a [Nombre001], quien además estuvo presto a reconocer actos ilegítimos a los medios de prensa, a los cuales la licenciada Yamura Valenciano estima no era tan afecto don [Nombre001].

La idea que subyace al criterio del tribunal no es que todas las personas se enteran de eventos a través de las noticias, sino también a través de los comentarios que suscitaron estos eventos, en los círculos cercanos a don [Nombre001]. Por lo que, se podría entender que el tribunal elaboró una argumentación que incluyó a [Nombre001], no como un ciudadano que lee periódicos y ve telenoticiarios, sino como una persona que estaba informada de lo que acontecía, y que formaba parte de eventos que tenían al país entero a la Las publicaciones a las que se alude en la prueba número 682, en efecto, refieren detalles de las pesquisas efectuadas y que involucraban a los personajes supuestamente involucrados en los ilícitos de esa causa (pp. 1548 de la sentencia). Hay buenas posibilidades de que [Nombre001] conociera de estas noticias, no necesariamente por los noticieros y periódicos, pero si por el cotilleo y comentario general que estaban provocando, y que él sabía podía volverse en su contra en virtud del canal de pago de las sumas que él mismo aceptó, después, como ilegítimas ante un telenoticiero de la empresa Repretel.

Es muy posible que esto haya ocurrido de esta manera, y provocara que el justiciable se representara la posibilidad de que se descubriera su delincuencia y ello lo motivara a traspasar dos vehículos de manera fraudulenta. Por su parte, del Hecho 185, se establece lo siguiente: "185) Aproximadamente en fecha 20 de septiembre de 2004, la hermana del imputado, [Nombre029] localizó al señor [Nombre069], quien era su conocido y poseía un negocio de contabilidad, solicitándole que le consiguiera tres sociedades, haciéndole creer que era para hacer unos trámites familiares. El señor [Nombre069] le manifestó que contactaría al Lic. [Nombre071] quien poseía sociedades para vender." Al respecto sostiene la licenciada Valenciano: “…Este hecho tal y como lo tuvo por probado el tribunal no se deriva de la declaración de [Nombre069], el único que lo podría haber confirmado. A partir de la página 390 de la sentencia se consigna el testimonio de [Nombre069], rendido el 12 de agosto de 2010, quien en lo que interesa indicó: "Como en el año 2004 me llamaron a una entrevista, usted misma fue la que me preguntó si yo conocía a doña [Nombre029], que si [Nombre029] me había visitado y le dije que sí me visitó allá por el año 2004, me visitó para saludarme, además ella necesitaba los servicios de un bufete y le recomendé al Licenciado [Nombre071]. 1 ...] No recuerdo haber informado a la Fiscalía que [Nombre029] me solicito que le indicara quien vendía sociedades." Al leer este testimonio, puede corroborarse que el testigo nunca dijo que fue cerca del 20 de septiembre de 2004 que [Nombre029] lo visitó en su oficina, tampoco dijo que ella le había pedido tres sociedades para hacer un trámite familiar, sino más bien indicó que la señora [Nombre029] le pidió que le recomendara una oficina de abogados por lo que él le recomendó al Lic. [Nombre071].

Por lo que, es evidente, que del dicho del testigo no se deriva lo que el tribunal tuvo por probado. En la fundamentación intelectiva, el tribunal no señala tampoco otro medio de prueba del que hubiese obtenido la confirmación necesaria de este punto de la acusación, indispensable para haberlo dado por probado…” No obstante, esta Cámara sí deriva de este testimonio que [Nombre029] sí estaba tras la búsqueda de un bufete y de asesoría legal para trámites, que aun cuando no se dijera que eran de índole familiar, sí eran de su interés. Además, en efecto, doña [Nombre029] visitó el bufete del licenciado [Nombre071], quien tenía disponibles sociedades anónimas que se vieron, luego, involucradas en el acto o negocio jurídico que se investiga. En cuanto a los hechos 186 y 187 se establece lo siguiente en el fallo: "186) En fecha 30 de setiembre de ese año, el Licenciado [Nombre071] le entregó para la venta a [Nombre069] tres sociedades denominadas Terra Toscana S.A. cédula jurídíca 3-101-376929, Dominical Antigua S.A. cédula jurídíca 3-101- 381503 y Camino Medieval S.A. cédula jurídica 3-101-381113, cada una con libros número uno de Registro de Accionistas, Actas de Asamblea General, Actas de Junta Directiva, Diario, Mayor e inventarios y balances, escritura original de constitución, cédula jurídica y acciones debidamente endosadas. 187) Ese mismo día, [Nombre029], de común acuerdo con el coimputado [Nombre001], mandaron traer los documentos de las citadas sociedades a la oficina de [Nombre069], y una vez con ellos en su poder, de forma inmediata comparecieron ante el Licenciado [Nombre028] y en el acto simularon mediante escritura número [Valor020] el contrato de venta de tres vehículos, dos que se encontraban a nombre del encartado [Nombre001], el placa [Valor037], marca Volkswagen modelo 1999 por un monto de cuatro millones de colones (04.000.000) y el placa [Valor038], marca Toyota modelo 2002 por un monto de cinco millones de colones (05.000.000); y el otro a nombre de la sociedad MCS Moriah, placa [Valor033], marca Suzuki modelo 2003 por el monto de cuatro millones de colones (04.000.000), todos traspasados documentalmente a la señora [Nombre070] en su condición de representante de la sociedad Dominical Antigua S.A." Con respecto a estos hechos, la licenciada Valenciano discute la posibilidad de derivar que, en efecto, esto haya sucedido como lo describe el fallo.

Sin embargo, el propio [Nombre071] confirma que esa venta de las sociedades anónimas, en efecto, se da, y que se confeccionó un recibo que [Nombre069] había firmado. Sobre esta firma, dice la impugnante, que hay una situación que el tribunal no dilucida, sobre si en efecto la misma se extendió o no por parte de [Nombre069], pues este no reconoció su firma estampada en el documento de folio 89, proveniente de la prueba número 404. Sin embargo, la mencionada discordancia, que tanto preocupa a la defensora, puede ser valorada siguiendo las reglas de la sana crítica, y considerar que si bien no se confirma con una prueba de grafología, hay por lo menos un indicio que dicho documento existió y que confirma, por lo menos en principio, que las sociedades fueron entregadas a [Nombre069], y con ello se confirmaría el dicho de [Nombre071] sobre la entrega de las sociedades, las que luego protagonizarían los traspasos dudosos que se investigaron.

El testimonio de [Nombre069], como el propio tribunal de mérito lo reconoce, fue temeroso y poco fluido, pero sus falencias fueron llenadas con el testimonio de [Nombre071] y de [Nombre070]. El Bufete profesional de don [Nombre071], igual que otras oficinas legales, prepara e inscribe sociedades anónimas que se tienen a disposición para eventuales clientes que puedan necesitarlas, y se venden con los libros debidamente legalizados y con las acciones endosadas en blanco. La presunta “falta de memoria” del testigo [Nombre069], quien dijo no haber reconocido su firma en el recibo de folio 89, de la prueba 404, se le muestra a los otros testigos, quienes reconocen el documento con el logo de la oficina, el que se solía utilizar y que es la razón de recibido y la factura por cobrar, y reconocen la del testigo, pues es la misma que se acostumbra en otros documentos de la oficina. De hecho, don [Nombre071] recordó que a los días de la venta de las sociedades, conversó con [Nombre069] por teléfono, quien le indicó que un cliente iba a pasar a la oficina a recoger la firma de [Nombre070] para traspasar un vehículo o propiedades y que no había ningún problema que [Nombre070] firmara (folio 1550 de la sentencia).

Cuestiona, igualmente, calificándolas de “meras presunciones”, las derivaciones que hace el Tribunal de Juicio en el hecho número 187, donde se da por probado que [Nombre029] y [Nombre001] mandan a traer los documentos de las sociedades para llevarlos a la notaría del licenciado [Nombre028], para proceder a las ventas plasmadas en la escritura número [Valor020] del Protocolo del citado profesional. La licenciada Valenciano insiste que no hay prueba alguna que demuestre que [Nombre029] y [Nombre001] hayan adquirido las sociedades Terra Toscana, Camino Medieval o Dominical Antigua. Para la defensora, solo el testimonio del licenciado [Nombre028] habría podido dilucidar si los imputados tenían en su poder los libros de las sociedades antes indicadas. Reclama la falta de investigación del Ministerio Público en torno a si los vehículos placas [Valor037], [Valor039] y [Valor038] eran poseídos de facto por [Nombre001], lo que hubiera podido determinar si el traspaso fue real o simulado.

No obstante, sí hay elementos valorados por el tribunal de mérito que podrían dejar un indicio importante de dicha detentación de facto. Obsérvese que [Nombre070], según su testimonio, nunca ha tenido vehículo, y aun cuando ella era la representante de la sociedad adquirente de los vehículos, resulta sorprendente que los adquiera si nunca ha tenido un vehículo. Doña [Nombre070], además era la secretaria del despacho del licenciado [Nombre071], siguiendo la costumbre del bufete de integrar las juntas directivas de las sociedades a la venta con miembros del bufete, en este caso con [Nombre070], su asistente (folio 1546 de la sentencia). Es cierto que ella concurre al acto jurídico como representante de la persona jurídica “Dominical Antigua”, pero es lógico que si la sociedad adquirirá esos vehículos, sea doña [Nombre070] quien se encargue de controlar, mantener, y hasta manejar los citados automotores.

Cierto es que la adquisición de estos vehículos vía la sociedad anónima es un acto admitido por el ordenamiento jurídico, en principio, sin embargo, resulta extraño que la representante de la persona jurídica no vaya a disponer de esos bienes, a lo sumo para atender las necesidades de mantenimiento de los citados automotores, o trasladarlos hasta un lugar donde fueran debidamente estacionados. En esta conclusión no hay una confusión de términos jurídicos o una exigencia incompatible con la naturaleza jurídica del cargo de representante de la sociedad anónima, es tan solo una reflexión plausible sobre la participación de doña [Nombre070] en estos traspasos y la razón y sentido jurídico de la adquisición de los automotores. Cierto es que el testimonio de doña [Nombre070] no es la prueba que el traspaso fue amañado e ilícito, esto deriva de la valoración integral de los indicios disponibles, que el tribunal de mérito dividió en dos momentos para su estudio.

Por una parte la adquisición de las sociedades anónimas y, luego, el acto jurídico del traspaso, lo que demuestra que todo el entramado jurídico lo que oculta es un contrato simulado que no tenía el objetivo de traspasar nada sino más bien ocultar bienes adquiridos con dineros que el mismo [Nombre001] calificó de ilegítimos. Además, la actitud del propio justiciable, de adquirir la sociedad y apresurarse a hacer los traspasos, revela, como bien lo subraya el Tribunal, su objetivo de realizar un traspaso ficticio que proteja esos bienes de la acción de la justicia. Es por ello, también, que la falacia lógica que reclama la defensora no se produce. Según ella se produce una circunstancia cum hoc ergo propter hoc, según la cual habría una condición de causa-efecto que es inexistente. Sin embargo, en este caso sí hay una relación indiciaria importante, que permite derivar que ante los hechos acontecidos en la causa Caja-Fischel, llevó a [Nombre001] y su hermana a buscar la manera de evitar que se descubrieran bienes que habían sido adquiridos con dineros recibidos de parte de una empresa que sería vinculada, después, con actos corruptos.

No hay prueba directa, pero sí indiciaria de la conexión entre los dos eventos, y existe suficiente base fáctica para concluir como lo hace el tribunal de juicio en torno a los elementos que integran el delito de Fraude de Simulación. Es por lo anterior que no puede declararse con lugar el motivo planteado por la defensora en contra de la sentencia. Sobre el tema de la fijación del valor de los bienes transmitidos que constituyen el Fraude de simulación y la fundamentación de la pena del mencionado delito. El cuarto motivo planteado por la licenciada Valenciado a favor del encartado [Nombre001] tiene que ver con la fijación del valor superior a diez salarios base que hace el Tribunal de los bienes transmitidos y que constituyen el objeto del contrato de compraventa simulado que ha sido objeto de la acusación. La cuestión tiene que ver con el hecho número 187: "Ese mismo día, [Nombre029], de común acuerdo con el coimputado [Nombre001], mandaron traer los documentos de las citadas sociedades a la oficina de [Nombre069], y una vez con ellos en su poder, de forma inmediata comparecieron ante el Licenciado [Nombre028] y en el acto simularon mediante escritura número [Valor020] el contrato de venta de tres vehículos, dos que se encontraban a nombre del encartado [Nombre001], el placa [Valor037], marca Volkswagen modelo 1999 por un monto de cuatro millones de colones (44.000.000) y el placa [Valor038], marca Toyota modelo 2002 por un monto de cinco míllones de colones 05.000.000); y el otro a nombre de la sociedad MCS Moriah, placa [Valor033], marca Suzuki modelo 2003 por el monto de cuatro millones de colones (4.000.000), todos traspasados documentalmente a la señora [Nombre070] en su condición de representante de la sociedad Dominical Antigua S.A." La recurrente indica al respecto lo siguiente: “…El Código Penal establece, en el artículo 218, que se impondrá la pena indicada en al artículo 216, según sea la cuantía, a quien en perjuicio de otro para obtener beneficio indebido hiciere un contrato simulado.

El artículo 216 establece que la pena a imponer será de dos meses a tres años, si el monto de lo defraudado no excede de diez veces el salario base y de seis meses a diez años si excede dicho monto. De forma tal, que de la pena impuesta por el delito de fraude de simulación, diez años de prisión, se asume que el tribunal consideró que la conducta de [Nombre001] se adecua al segundo inciso del artículo 216, es decir, que el monto de lo defraudado excede de diez veces el salario base, pese a que la sentencia no lo analizó, explicó ni fundamentó en la fundamentación jurídica. La sentencia tuvo por probado que el imputado [Nombre001] simuló un contrato de venta de dos vehículos a la sociedad Dominical Antigua S.A., el placa [Valor037] marca Volkswagen y el placa [Valor038], marca Toyota. En la escritura se consignó que el valor de los vehículos era de cuatro millones y cinco millones de colones respectivamente”.

Lleva razón la recurrente en sus alegatos. El Tribunal no explica de dónde derivó el valor de los vehículos traspasados: por una parte si lo extrae del valor indicado en la escritura o si utilizó algún otro parámetro para estimar si lo defraudado excede el monto de diez salarios base. No hay peritaje al respecto o una fijación prudencial que haya podido servir de base para una discusión sobre este tema, de gran importancia para fijar los montos de pena a los que podría hacerse acreedor el encartado en caso de ser hallado culpable del ilícito de Fraude de Simulación. También debe dársele razón a la defensora Valenciano sobre el tema de la fijación de la pena por el ilícito de Fraude de Simulación al encartado [Nombre001], a lo que dedica el sexto motivo de su recurso. El Tribunal no dio razones suficientes para poder tener por proporcional, idóneo y necesario el monto de diez años de prisión que le impuso al justiciable, el extremo mayor de la pena prevista para esta criminalidad.

Luego de indicar lo relativo a la capacidad de culpabilidad y la conciencia de antijuridicidad, así como que los hechos son típicos, antijurídicos y culpables y recapitular los hechos demostrados, el tribunal se avoca, en un escaso párrafo, a intentar la motivación de la pena (cfr. folios 1553 y 1554 de la sentencia). La peculiaridad sobre la cual es interés de la defensa llamar la atención es que este párrafo es exactamente el mismo que el tribunal utilizó para la fundamentación de la pena de los imputados [Nombre001] y [Nombre004] para el caso de la corrupción agravada, lo cual revela el total desinterés del tribunal en plasmar los razonamientos que lo llevaron a imponer, se insiste, el extremo máximo de la pena prevista para el fraude de simulación…” Transcribe los pasajes de la sentencia donde se hace esta ponderación, y analiza que lo único que se cambió en la ponderación para ambos justiciables fue el nombre.

Como ya lo explicó, el tribunal prefiere razonamientos de prevención especial negativa, pero sin dar ninguna verdadera razón que conforme a los principios del Estado de Derecho permita tener por sustentado el juicio sobre la pena establecida por el injusto cometido. No hay forma de controlar, por la defensa del encartado y por esta Cámara, las razones verdaderas para la imposición de esta pena, y cuál fue el fundamento de una individualización del quantum de la sanción privativa de la libertad en su extremo mayor. Corresponde, entonces, anular la sentencia en cuanto al Fraude de Simulación por el que se condenó a [Nombre001], únicamente, en cuanto a la determinación del extremo a partir del cual sería fijada la pena en la relación existente entre el artículo 218 y 216 del Código Penal sobre el valor de lo defraudado, así como la pena impuesta. Se ordena el reenvío de la causa para que se discutan estos dos extremos: se fije la cuantía de lo defraudado conforme a las reglas procesales y según esta cuantía se establezca el extremo mínimo y máximo de la pena a imponer, y se proceda a hacer una fundamentación de la pena conforme a los requerimientos constitucionales y del artículo 71 del Código penal.

La sentencia sobre el Fraude de Simulación permanece incólume en todos los demás aspectos. 3. Sobre la violación al debido proceso por introducción de prueba ilegítima no admitida en debate. estableció, de manera acorde a las reglas de incorporación de la prueba al proceso, cuál era la fecha del video de REPRETEL, en el que supuestamente [Nombre001] había aceptado haber recibido dinero de ALCATEL. Hace un recuento de las normas de la legislación de rito que regulan la incorporación de prueba en el proceso penal costarricense, y establece que en lesión de lo allí estipulado, sutilmente, el Tribunal de Juicio establece una fecha y una hora del video que nunca se definió legalmente. De hecho, la defensa no ejerció control de este aspecto sino hasta esta sede de apelación. Según lo establece la defensa, esta actuación del Tribunal, la pone en un estado de indefensión, puesto no que tuvo conocimiento de la prueba, y no pudo ejercer control sobre ella ni pudo adversarla.

Transcribe el tramo de la sentencia donde se comete el vicio: "Ahora bien, como ya se ha mencionado, se ha tenido a la vista un vídeo de fecha 24 de septíembre de 2004 de Repretel en el cual el endilgado [Nombre001] de forma voluntaria acepta ante el periodista que lo entrevista haber recibido dineros de la empresa Alcatel, entre los días 28 y 30 de septiembre de 2004 se publica en los diarios nacionales las noticias acerca de este suceso." (página 1551). Al respecto de ello, agrega la impugnante: “…Según el texto de la sentencia recién señalado, hubo un video de la empresa Repretel que fue incorporado al debate. Sobre este punto no hay discusión alguna, en efecto, fue ofrecido por el Ministerio Público, aceptado por el tribunal e incorporado debidamente. El reclamo de la defensa recae en el hecho de que nunca se incorporó prueba al debate que permitiera definir la fecha en la que el video se realizó, lo que incluso fue alegado por la defensa en la fase de conclusiones puesto que, como parte de la estrategia de defensa, la omisión de ese dato por las fiscales, era vital, en tanto no podía el video ubicarse temporalmente y ello limitaba el valor probatorio del mismo.

Es inadmisible, en un Estado de Derecho, que un tribunal espere a que finalicen las conclusiones de las partes y de acuerdo con las debilidades de la investigación señaladas, en especial, por la defensa técnica, sustituya la labor del acusador y busque datos que no fueron incorporados debidamente al proceso y valore esos datos en perjuicio del imputado…” Hay una referencia sutil al dato, pero una clara omisión a la referencia del elemento de prueba lícito de donde se deriva dicha información, lo que provoca una referencia a partir de un elemento prueba inexistente, que bien sabe el Tribunal es la situación disponible en el caso. Encuentra la recurrente otras referencias en el fallo al video donde se hace indicación a otras fechas y otras horas de su supuesta emisión: “…Véase como, incluso, en otras parte de la sentencia, específicamente en la página 1457 el tribunal hace referencia al mismo video, pero dice que es un video de Repretel de las 3:59 horas del 29 de enero de 2004, con lo que deja la duda de cuál es la fecha, 29 de enero de 2004 o 24 de septiembre de 2004, datos sobre los que la defensa no ejerció control alguno en el debate sino hasta la sede de casación.

La incorporación en la sentencia de la supuesta fecha del video de Repretel en sentencia, deja al imputado en estado de indefensión, pues al no haber constado esto en debate como prueba ofrecida e incorporada, se le dejó en indefensión, no pudo la defensa técnica ni la material, controlar la veracidad o no del dato, no pudo contradecir la prueba de ninguna manera ni tampoco las conclusiones, que, en sentencia, obtiene el tribunal del dato que se recabó con posterioridad a la clausura del debate. No se trata de una simple fecha. Esta incorporación tiene una consecuencia trascendental en la decisión del tribunal, que es, darle un punto de referencia temporal que nunca fue proporcionado por la fiscalía, y que el tribunal utiliza para "probar" que al momento en que el imputado realiza la venta de los vehículos a la sociedad Dominical Antigua, 30 de septiembre de 2004, ya conocía que se le podría vincular a los hechos de corrupción de los que trata la sentencia…” "Para determinar cuál fue la intención del imputado a la hora de mencionados y así dispersar su patrimonio, simulandi, en el sentido de la se le sometiera a un proceso penal y como el tiempo en que se dan estos actos jurídicos y la necesidad que tenia (…) Ahora bien, como ya se ha mencionado se ha tenido a la vista un video de fecha 24 de septiembre de 2004 de Repretel en el cual el endilgado [Nombre001] de forma voluntaria acepta ante el periodista que lo entrevista haber recibido dineros de la empresa Alcatel, entre los días 28 y 30 de septiembre se publica en los diarios nacionales las noticias acerca de este suceso.

En dicha información se mencionan una serie de datos que revelan la magnitud de los hechos. Estima el Tribunal que son precisamente esas circunstancias las que llevan al imputado a realizar el traspaso de los vehículos de su propiedad a una sociedad anónima. Desde ese momento, aunado a las manifestaciones voluntarias que días antes había brindado, [Nombre001] afianza su conocimiento de que probablemente será sometido a proceso penal y de que sus bienes patrimoniales podrían ser perseguidos por las autoridades por lo que era necesario ponerlos a buen recaudo." (folio 1551). Al respecto reafirma la recurrente su crítica al fallo, no sólo por hacer una afirmación que no se asienta en una fundamentación con uso de la prueba oportunamente incorporada, como porque el conocimiento de la situación la deriva el tribunal de una fecha de un video del cuál se desconocía su fecha exacta hasta que se notificó la sentencia.

En sustento de su reclamo, cita una nota de la Magistrada Rosario Fernández Vindas al Voto No. 1329-2006, donde ella entendía que un tribunal no podía decir que se había actuado conforme a la sana crítica y la experiencia cuando una valoración que se hace de un elemento probatorio no se extrae de la prueba recibida en juicio sino de la apreciación generada por el propio Tribunal sin pasar por el análisis del contradictorio, dejando esa apreciación como parte del conocimiento privado del juez. La nota de la Magistrada Fernández tiene relevancia, según la recurrente, pues en este caso sí hay consecuencias, pues si se suprime el dato incorporado, no hay manera de demostrar que para el 30 de septiembre de 2004, el imputado tuviera noticia que había una investigación abierta donde se mencionaba a Servicios Notariales QC S.A., como para que sospechara que su nombre se vería envuelto en un escándalo y que a raíz de ello decidiera traspasar fraudulentamente sus vehículos.

Solicita se declare con lugar el motivo, y se anule la sentencia en cuanto a la condenatoria por el delito de Fraude de Simulación y, por economía procesal, se absuelva al imputado por no haber medios probatorios para demostrar la conducta acusada. Lleva razón la recurrente, sin embargo, la nulidad del dato de la fecha del video de Repretel no tiene la virtud de dejar sin prueba la determinación del hecho en el tema del fraude de simulación. La consideración que hace la defensora de [Nombre001] sobre el tema de la fecha y la hora del video de la empresa Repretel, donde supuestamente el justiciable reconoció haber recibido dinero de la empresa Alcatel, no fue establecida de manera que pudiera ser conocida y cuestionada por la defensa material y técnica del justiciable. De hecho, no hay una determinación en la sentencia que permita saber cómo es que se fija la fecha y la hora de dicho video con la certeza que el voto de mayoría le otorga.

La defensora logra determinar, adicionalmente, que en diversos tramos de la sentencia se fijan dos fechas diversas, en una parte de la sentencia, específicamente en la página 1457, el tribunal hace referencia al mismo video, pero dice que es un video de Repretel de las 3:59 horas del 29 de enero de 2004, con lo que deja la duda de cuál es la fecha, 29 de enero de 2004 o 24 de septiembre de 2004, datos sobre los que la defensa no ejerció control alguno en el debate sino hasta la sede de casación. La información sobre la fecha y la hora tiene, en efecto, una gran importancia para la estrategia de defensa del encartado, toda vez que fue en esa entrevista que él aceptó haber recibido dineros de forma ilegítima de parte de Alcatel, y que aceptaba las consecuencias de ello. De la misma forma, y a partir del video, se le vincula con toda una planeación criminal para sacar bienes muebles de su peculio y ponerlos a buen recaudo de la justicia.

Esto último, es parte importante de la derivación que hizo el tribunal en el caso del delito de Fraude de Simulación que se le atribuyó, pues afirma que esto es parte de los elementos que lo llevan a decidirse a simular un contrato de compraventa a una sociedad anónima. La defensora ofreció en la vista de los recursos de apelación interpuestos en la presente causa, una nota del 30 de octubre de 2012, suscrita por [Nombre072], Jefe de Información de Noticias Repretel, visible al folio 174382 del Tomo XLI, donde indica que no es posible certificar en qué fecha el periodista [Nombre073] le realizó la entrevista al señor [Nombre001], lo que sí se podía certificar es que el documento ingresó a su archivo el día 7 de octubre de 2004. televisora, que hoy es obsoleto pues hoy se utiliza el formato digital. Así las cosas, ni con la información procedente de la propia empresa de televisión se podría determinar, con la certeza horaria y de fecha que el tribunal da, la referencia que hoy ataca la defensa del encartado [Nombre001].

De la misma forma, debe analizarse que si esto es conocimiento privado del juez o una inferencia que hace de otros elementos, debe haber una fundamentación suficiente para que pueda ser analizada en esta sede de apelación y eventualmente en casación, y poder derivar qué elementos le permitieron a las juezas considerar que la fecha del video es una en concreto. Sin embargo, y aun cuando esto tornaría en ilícita la fijación de la fecha y la hora del video, no así al documento en sí mismo, pues este fue ofrecido e introducido al proceso de manera lícita, y puede ser valorado por el tribunal de mérito y por esta sede de apelación. De la misma manera, hay otros elementos de prueba, que han sido ponderados en el acápite anterior, que permiten tener como cierto y valedero que el justiciable intentó sustraer algunos bienes muebles de su peculio de la acción de la justicia mediante actos o contratos de compraventa simulados.

La prueba, por supuesto, fue cuestionada por la defensa, pero esta Cámara ya ha considerado que sí permite concluir como lo hace el tribunal de mérito, junto al hecho, que debe subrayarse, que no necesariamente fue el propio video de Repretel o las noticias de los telenoticieros o de los periódicos los que llevaron a [Nombre001] a tomar la determinación de sustraer estos bienes de su peculio, pues es claro que bien pudo tomar conocimiento de ello de los comentarios generales que se producían en su círculo cercano o de confianza o de los mismos compañeros de trabajo que comentaban dichas circunstancias que se iban entretejiendo con las pesquisas realizadas en torno al caso denominado Caja-Fischel, que tenía algunos elementos comunes con el tema en el que [Nombre001] se sabía involucrado. Es por lo expuesto, que aun excluida hipotéticamente la referencia a la fecha y la hora del video que le otorga el Tribunal de Mérito, subsisten otros elementos de prueba, correctamente introducidos y valorados en juicio que sostienen los indicios que permiten derivar la programación criminal de [Nombre001], en su intento por sustraer bienes de su peculio de las eventuales indagaciones que no tardarían de producirse en su contra.

VIII.SE RESUELVE EL RECURSO DE APELACIÓN DE [Nombre004] PLANTEADO POR LA LICENCIADA YAMURA VALENCIANO, DEFENSORA PÚBLICA.- 1. En cuanto al delito de cohecho impropio: De los temas propuestos por la licenciada Yamura Valenciano Jiménez, en representación del señor [Nombre004], ha expresado su disconformidad con la sentencia a través de un recurso de apelación por conversión que presentó al Tomo XXXIX. Esta Cámara procede a resolver los motivos que por sí solos implican la nulidad de la sentencia y la absolutoria del justiciable por el delito de cohecho impropio en la modalidad de corrupción agravada. Sección Primera.- Vicios que por sí solos implican la nulidad de todo lo resuelto. A. Prescripción de la causa. En el primer motivo de la licenciada Valenciano se alega violación al debido proceso por haber prescrito la causa. Indica que en diversas instancias planteó la excepción de prescripción, y fue rechazada.

La razón expuesta por el Tribunal de Mérito para desestimar la prescripción se hizo radicar en la declaratoria de tramitación compleja de la causa que se produjo el 3 de marzo de 2006, considerando los jueces que en virtud de ello no podría aplicar la reducción del término de la prescripción, en virtud de lo dispuesto por el párrafo tercero del artículo 376 de legislación de rito. Según lo expone la defensa, los actos procesales se rigen por la ley vigente en el momento en que ocurren y surten efectos según esta ley. Según la licenciada Valenciano, el artículo 376 CPP no le estaría dando ninguna posibilidad a la declaratoria de tramitación compleja la posibilidad de hacer retroactivos sus efectos ni tampoco la de interrumpir la prescripción. Lleva razón en su reclamo. En el presente asunto, se ha acusado a [Nombre004] por el delito de cohecho impropio en la modalidad de corrupción agravada, el cual, de acuerdo con lo establecido en los artículos 340 y 342 inciso 1, tiene una pena máxima de cinco años.

Por lo que, cinco años es el plazo completo de prescripción que debía contabilizarse, hasta que sucediera alguno de los actos que interrumpen la prescripción y reducen el termino a la mitad. El primer acto interruptor de la prescripción se dio el 10 de octubre de 2004, fecha en la que el imputado se presentó a rendir su declaración sobre los hechos, por lo que a partir de ese día, el plazo para computar la prescripción pasó de ser cinco años a dos años y medio, o lo que es igual, treinta meses (ver folio 146 Tomo I). Dichos treinta meses se cumplieron en abril de 2007, sin que en el transcurso se diera alguna de las causales de interrupción previstas por el artículo 33 del Código Procesal Penal o de suspensión de las establecidas en el artículo 34. Por lo cual, para el momento en que se señaló la audiencia preliminar por primera vez, sea, el 10 de septiembre de 2007, la acción penal contra [Nombre004] por el delito de cohecho impropio, ya había prescrito, y con ella, la facultad del Estado de perseguirle penalmente.

Los razonamientos que apoyan esta conclusión, ya han sido expresados al resolverse el recurso del Dr. [Nombre012], a los que se remite para evitar reiteraciones innecesarias. Corresponde, entonces, declarar la causa seguida contra [Nombre004] prescrita y absolverle del delito de delito de cohecho impropio en la modalidad de corrupción agravada que se le venía atribuyendo. B. Vicios en cuanto a la determinación del hecho y la valoración de la prueba para determinar los indicios que condujeron a la condena por el delito de cohecho impropio. A pesar de que la causa en contra de [Nombre004] ha sido declarada prescrita, y podría carecer de interés toda valoración posterior sobre los elementos que integran el criterio jurisdiccional de condena, corresponde ahora, analizar otros aspectos que podrían provocar la nulidad del fallo en virtud de falencias en el proceso argumentativo y en la generación de las inferencias del voto de mayoría del tribunal de mérito.

Es así que resulta de interés analizar el tercer motivo del recurso formulado a favor de [Nombre004], donde plantea la licenciada Yamura Valenciano afrentas a las reglas de la lógica, al principio de derivación en la fundamentación del fallo en cuanto atribuye el delito de cohecho impropio al justiciable. Comienza con una transcripción de los hechos 116 y 117 del fallo: "116) Que durante su gestión como directivo del I.C.E., el imputado [Nombre004] mantuvo una comunicación fluida y de extrema confianza, derivada de su posición, con el imputado [Nombre015] y con el indiciado [Nombre035]. 117) Sin precisarse fecha, pero en el período comprendido entre finales del año 2000 y principios de 2001, los imputados [Nombre015] y [Nombre035] solicitaron al imputado [Nombre004] que realizara las acciones necesarias dentro del ámbito de sus funciones como Directivo del I.C.E., en apoyo de los intereses de Alcatel, primordialmente, impulsar la migración de tecnología TDMA hacia tecnología GSM, promover las compras por medio de licitaciones y evitar que fueran abortadas.

Posteriormente, una vez que se autorizó el proceso de contratación abreviado de las 400.000, le solicitaron votar a favor de la adjudicación de dicha licitación a la empresa Alcatel, a cambio de todo lo anterior, le prometieron la entrega de una dádiva, la cual sería pagada en dinero. Dicha promesa fue aceptada por el imputado [Nombre004]…". Los argumentos que el tribunal utiliza para establecer como cierta dicha promesa son los siguientes: “En consecuencia es claro que el panorama descrito no favorecía en nada los intereses comerciales del señor [Nombre015] y de [Nombre035], representantes de la firma Alcatel CIT, circunstancia que los motiva para prometer y luego entregar una dádiva a [Nombre004] que como miembro de la Junta Directiva del ICE, tenía la facultad de impulsar el cambio de una tecnología TDMA a una GSM, de votar a favor de una licitación pública permitiendo así la participación de Alcatel Costa Rica y de votar afirmativamente la adjudicación del contrato "abreviado 1-2002 de arrendamiento de las 400.000 líneas celulares GSM" a favor de Alcatel.

Como en efecto sucedió. Un segundo elemento probatorio para considerar que esa "promesa de dádiva" efectivamente se dio, lo constituye la declaración del imputado colaborador [Nombre026], a quien el Tribunal por mayoría le ha dado plena credibilidad, sin que se encontrara hasta el momento motivo alguno para decir que éste ha venido a mentir al debate, cómo ya se ha indicado en consideraciones anteriores, aún y cuando pudiéramos encontrar algunas diferencias respecto de las declaraciones que fueran incorporadas por lectura al juicio, lo cierto es que en sus puntos relevantes, siempre ha mantenido una misma versión. Así es cómo señala que efectivamente se reunió con [Nombre015] y [Nombre035]. En dicha reunión según sus propias palabras, los antes mencionados le ofrecen un premio si les ayudaba en tres direcciones: 1) que ayudara a materializar la migración a tecnologías abiertas o GSM; 2) qué se materializara el proyecto o iniciativa de compra de material y equipo para esa técnicos o de las instancias técnicas los votara afirmativamente como director del ICE que era.

Un dato importante que no debemos dejar de lado, es que de acuerdo al testimonio de [Nombre026], los "oferentes" al inicio de esa reunión le manifestaron que ellos tenían gentilezas o premios para la gente que les ayudaba. [...] Un tercer elemento a considerar a los efectos de tener por demostrada la promesa de dádiva los constituye la denominada "propuesta de ruta de acción" preparada por [Nombre058], testigo que si bien se abstuvo de declarar en juicio, ello no impide que se utilice ese documento ya que fue incorporado por lectura al debate. Dicha propuesta que describe un esquema básico de acción para enfrentar los problemas de Alcatel con el ICE, lo que ya ha sido especificado, abarca por ejemplo al sector empresarial, a la iglesia católica, partidos minoritarios, pero también al sector político. Siendo muy claro el documento en advertir que se necesitaría el apoyo de al menos tres diputados, de un precandidato a la Presidencia de la República, de miembros del directorio político del Partido Liberación Nacional, de asesoría privada incluso de un ex presidente (prueba N° 686).

Este documento, sin duda alguna, evidencia la urgencia y necesidad que tenía Alcatel Costa Rica en la persona del coimputado [Nombre015], de agotar todas las instancias sociales y sobre todo políticas con el fin de que su oferta respecto de la tecnología GSM, fuera la aceptada por el ICE. Recordemos la inconformidad de dicha empresa con las políticas administrativas en el tema de las contrataciones que tenía el ICE. Lo anterior solamente nos viene a confirmar lo que ya ha descrito la acusación fiscal, respecto de que el coimputado [Nombre015] y [Nombre035] efectivamente contactaron no solamente a [Nombre026], sino también a [Nombre004] y a [Nombre001], a fin de prometerles una dádiva a cambio de que en atención a sus funciones ayudaran a salir airosa a la empresa Alcatel...". Es así que la defensa de [Nombre004] sostiene que tres son los elementos fundamentales para sostener esta conclusión de la sentencia en cuanto a la oferta de dádiva que recibió el ex directivo.

Por una parte, la declaración de [Nombre026], la hoja de ruta trazada por [Nombre058], así como el presunto panorama adverso que se presentaba para los intereses de Alcatel. Esta Cámara estima que le asiste razón a la licenciada Valenciano en su apreciación de los elementos argumentativos del fallo, y en su crítica a los mismos. Ya se ha analizado, con gran lujo de detalle, al resolver el recurso a favor de [Nombre001], que esta Cámara no comparte la visión del voto de mayoría del tribunal de mérito en el sentido que la “hoja de ruta” trazada por el señor [Nombre058], como asesor político de Alcatel, implique el diseño de un plan criminal para corromper funcionarios públicos. Se trata más bien, de un diseño de un plan estratégico para construir un consenso en cuanto a la necesidad de toma de decisiones en el tema de la apertura tecnológica en el campo celular, que implicaba llegar a diversos sectores y personas formadoras de opinión, con el objetivo de generar conocimiento sobre el tema técnico y las ventajas tecnológicas que dicha apertura podría traer.

Es posible que Alcatel sintiera rezago en cuanto a sus pretensiones de participar en el mercado celular costarricense, y es posible también que en algún momento se sintiera excluida de intervenir en compras directas que ya se hacía de los proveedores -hasta el momento dominantes del ICE: Lucent y Ericsson. Sin embargo, el panorama de rezago no significaba necesariamente que Alcatel decidiera acercarse a [Nombre004] para hacerle una promesa de dádiva, en concreto, para colaborar con los objetivos empresariales de la multinacional. De la misma manera, derivar de las declaraciones de [Nombre026] certezas sobre la intervención de [Nombre004] en alguna programación criminal corruptora resulta, como ya se ha estudiado con ocasión de la resolución del recurso de don [Nombre012], imposible, por las razones que ya se expresaron al analizar el tema de [Nombre026] y su papel en este proceso. La defensora apunta, correctamente, a la circunstancia que no se le puede apuntar la misma razón de imputación que pudiera corresponder a [Nombre026] a otro directivo del ICE como lo era [Nombre004].

El propio [Nombre026] dijo desconocer si otros directivos del ICE recibieron la misma propuesta de dádiva que él recibió. Esta proposición argumentativa del Tribunal de Juicio no puede ser respaldada por esta Cámara y cae por su propio peso. El Tribunal de Mérito intentó involucrar a [Nombre004] en la decisión de la concesión de las 400 mil líneas celulares a Alcatel, y rastrea su participación en las sesiones del Consejo Directivo donde se discute el tema y cita la Sesión Extraordinaria No. 5249 de 05 de diciembre de 2000 (folio 1395 de la sentencia, Tomo XXXII). Sin embargo, la propia cita de las juezas de esta Sesión no deja de lado la referencia a que había un proyecto de Plan Integral de Telecomunicaciones que necesitaba ser impulsado y que había que pedir autorización a la Contraloría General para ampliar las centrales y brindar soluciones con un sistema GSM. Ahí mismo se apuntó que la UEN de telefonía móvil justificó la “afabilidad técnica” para implementar 400 mil líneas celulares partiendo de las centrales fijas ya existentes.

Como se vio con ocasión del estudio del recurso planteado a favor de [Nombre001], dicho proceso hasta la decisión de plantear lo de las 400 mil líneas en un procedimiento abreviado no fue carente de problemas, dificultades y solicitudes de información y de estudios técnicos. La propia decisión de optar por un procedimiento abreviado no fue del ICE sino de la Contraloría General de la República. El ICE prefería continuar con el tema de compras directas. El propio procedimiento abreviado, y el núcleo de la solicitud de ofertas no llevaba en específico la orientación de Alcatel. La generación de dicha licitación surgió del trabajo conjunto de las autoridades del ICE, de los proveedores, y fue un proceso intensivo que buscaba la mejor oferta que permitiera al ICE llenar la demanda existente e incorporar servicios de interés para los usuarios costarricenses. Todos los aspectos relacionados con estos argumentos ya fueron discutidos y analizados antes, pero se repiten aquí para señalar la debilidad de las derivaciones hechas por el Tribunal de mayoría, así como la presunta oferta de dádiva que pudo haber recibido [Nombre004] para allanar el camino a la empresa Alcatel en un procedimiento abreviado que para la fecha en que se dio la supuesta dádiva no existía ni siquiera como posibilidad real.

Según el Tribunal, había una relación de confianza y amistad entre [Nombre004], [Nombre015] y [Nombre035] (folio 1401, Tomo XXXII), dicha cercanía le prometieron una dádiva a cambio de impulsar la migración de tecnología TDMA hacia la tecnología GSM que proveía Alcatel. Entre los favores y cercanías, menciona la sentencia las notas dirigidas a Alcatel Chile para atender a [Nombre004] cuando visitó ese país, o la reservación de Hoteles en España y Francia en el mes de marzo de 1996 (folio 1402 de la sentencia). Las atenciones al justiciable se dan en otras ocasiones, incluso pagándole un viaje a España en octubre de 1999. La sentencia entreteje esta relación de [Nombre004] con [Nombre015] y con Sapzisian y luego lo conecta a los planes de favorecimiento a la multinacional en su emprendimiento en Costa Rica. Es por ello que en la sentencia, el Tribunal une el pago de las sumas de dinero a [Nombre004] con el cumplimiento de las tareas que le fueron encomendadas en relación con las 400 mil líneas celulares.

Sin embargo, y cómo ya se expuso para el caso de [Nombre001], el plan de ofrecer dádivas en una época donde todavía no había claridad del camino que se seguiría y que finalmente se optó por un camino que no era del todo favorable a Alcatel como era el procedimiento abreviado, que no le aseguraba ninguna certeza de salir gananciosa del proceso de ofertas, deja sin sustento mucho de esta línea argumentativa del Tribunal. Cierto es que, finalmente, Alcatel sale victoriosa, pero según se pudo observar del camino decisorio previo, esto se produce precisamente por haber cumplido los requisitos de la oferta y por haber quedado descalificada la empresa Ericsson. Los indicios que construye la sentencia a este respecto resultan, entonces, exiguos y anfibológicos, como lo acusó la defensora Valenciano. Ya esta Cámara ha insistido en la necesidad que la ponderación de los indicios resulte en una conclusión a partir de su análisis global.

Es de allí que las reglas de la lógica y la experiencia exigen que los indicios conduzcan de manera racional a la conclusión que pretende sostenerse. Los tres elementos que pretende utilizar el fallo de mérito carecen de la solidez que pretende darle el Tribunal de Juicio, y sus conclusiones no pueden avalarse para sostener una sentencia condenatoria. Es por ello que también por esta razón debe declararse con lugar el motivo planteado por la defensa de [Nombre004], y por estas razones también habría que anular la sentencia por no existir sustento en la determinación del hecho atribuido al acusado [Nombre004].

IX.SE RESUELVE EL RECURSO DE APELACIÓN PLANTEADO POR LA DEFENSORA NAZIRA MERAYO ARIAS Y WILSON FLORES FALLAS A FAVOR DEL ACUSADO [Nombre007].- 1. En cuanto al delito de Enriquecimiento Ilícito: De los temas propuestos por los licenciados Nazira Merayo Arias y Wilson Flores Fallas, en representación del señor [Nombre007], se ha expresado su disconformidad con la sentencia a través de diversos escritos, el primero de ellos es un recurso de «casación» que presentó el defensor Flores el día 27 de abril de 2011 (cfr. Tomo XXXVI, a partir del folio 171102), y posteriormente en un recurso de apelación por conversión. Esta Cámara procede a resolver los motivos que por sí solos implican la nulidad de la sentencia y la absolutoria del justiciable por el delito Enriquecimiento Ilícito. Sección Primera.- Vicios que por sí solos implican la nulidad de todo lo resuelto. A. Prescripción de la causa. En el primer motivo por la forma del recurso del licenciado Wilson Flores y en el primero por la forma de la licenciada Nazira Merayo se alega violación al debido proceso por haber prescrito la causa.

Indican que en diversas instancias se planteó la excepción de prescripción, y fue rechazada. La razón expuesta por el Tribunal de Mérito para desestimar la prescripción se hizo radicar en la declaratoria de tramitación compleja de la causa que se produjo el 3 de marzo de 2006, considerando los jueces que en virtud de ello no podría aplicar la reducción del término de la prescripción, en virtud de lo dispuesto por el párrafo tercero del artículo 376 de legislación de rito. Según lo expone la defensa, los actos procesales se rigen por la ley vigente en el momento en que ocurren y surten efectos según esta ley. El artículo 376 CPP no le estaría dando ninguna posibilidad a la declaratoria de tramitación compleja de hacer retroactivos sus efectos ni tampoco la de interrumpir la prescripción. Llevan razón en su reclamo. Mencionan los recurrentes que la calificación dada a los hechos en contra de [Nombre007] quedó reducida al delito de enriquecimiento ilícito, que para la fecha de los hechos señalaba (10 de diciembre de 2001, artículo 346 inciso 3): “Será reprimido con prisión de seis meses a dos años, el funcionario público que sin incurrir en un delito más severamente penado: 3) Admitiere dádivas que le fueren presentadas u ofrecidas en consideración a su oficio, mientras permanezca en el ejercicio del cargo.” De ahí, que al coimputado [Nombre007] se le atribuyen 3 delitos de enriquecimiento ilícito, en concurso material, según lo previsto en el numeral 346 inciso 3 del Código Penal, sancionados con pena de prisión de 6 meses a 2 años, cuyo plazo de prescripción conforme al artículo 31 del Código Procesal Penal, sería de 3 años, por lo que reducido el plazo a la mitad, quedaría en 18 meses a partir de algunos de los supuestos de interrupción de la prescripción.

En concreto, el artículo 33 de la ley de rito establece que los plazos de prescripción se reducirán a la mitad en varios supuestos, el que interesa en el caso es cuando se haya rendido la declaración indagatoria. En el caso del señor [Nombre007], ésta tuvo lugar a las 14 horas 5 minutos, del 7 de marzo de 2005 (Folio 1984). Por ello, se debe computar un plazo de prescripción de 18 meses desde este momento y hasta la realización de la Audiencia Preliminar. El señalamiento a la Audiencia Preliminar fue hecho el 10 de septiembre de 2007, por lo que para la realización de dicho acto ya la causa habría prescrito desde el 7 de setiembre de 2006. No obstante, el Tribunal de Juicio, estima que la declaración de tramitación compleja declarada el 3 de marzo de 2006, produce un efecto de retroactivo, afectando la declaración como imputado que había iniciado con reglas de prescripción de tramitación ordinaria.

Ya esta Cámara se había pronunciado en contra de los efectos retroactivos que se le ha dado a la declaratoria de tramitación compleja de la causa. Los razonamientos que apoyan esta conclusión, ya han sido expresados al resolverse el recurso del Dr. [Nombre012], a los que se remite para evitar reiteraciones innecesarias. Corresponde, entonces, declarar la causa seguida contra [Nombre007] prescrita y absolverle del delito de Enriquecimiento Ilícito que se le venía atribuyendo. B. Prueba espuria. En el sexto motivo por la forma del recurso del licenciado Wilson Flores y también en el sexto motivo por la forma del recurso de la licenciada Nazira Merayo, a favor del encartado [Nombre007], se acusa la incorporación de prueba obtenida con lesión de derechos fundamentales. Señalan los recurrentes que la sentencia habría incurrido en lesión al debido proceso, al lesionar lo preceptuado por los artículos 24 de la Constitución Política, 175,176, 363 inciso b y 369 inciso d, ambos del Código Procesal Penal, 29 de la Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones aspecto que se sanciona con nulidad.

Con respecto a la prueba documental N° 588, que es copia certificada de la Asistencia Judicial de la República de Panamá, enviada mediante notas PGR- 030-2004, de fecha 10 de septiembre de 2004 y N° 316-DN-TALM-04 del 6 de septiembre de 2004, la cual consta de 420 folios, señalan los recurrentes que no basta con el consentimiento del representante legal de Marchwood Holding, titular de la cuenta, el señor [Nombre032], pues la diligencia se llevó a cabo, en su oportunidad, sin orden de juez como lo exige el ordenamiento costarricense. Argumentan al respecto, a partir de algunas consideraciones sobre el derecho fundamental a la intimidad derivado del artículo 24 constitucional, que es a su vez una garantía derivada del derecho internacional de los derechos (artículo 11 inciso 2 de la Convención Americana de Derechos Humanos, artículo 17 del Pacto Internacional de Derechos Civiles y Políticos).

La intervención en el ámbito íntimo de los ciudadanos sólo podrá ser acordada por la ley, y en las condiciones que esta fije, y en cuya aplicación e interpretación se contará siempre con la garantía jurisdiccional. En virtud de ello, un consentimiento como el externado por [Nombre032] no tendría la virtud de habilitar prescindir de las garantías derivadas de ese derecho constitucional a la intimidad. La actuación que consintió [Nombre032], además, incide en derechos fundamentales de otros actores, y por medio de ella se obtiene un elemento de prueba y se obtiene información que relaciona a Servicios Notariales Q. C. S. A. con el Cuscatlán International Bank y de transferencias internacionales de Servicios Notariales Q. C. S. A., a favor de imputados en esta causa y de Alcatel Cit a favor de Servicios Notariales Q. C. S. A., por lo que la prueba que se derivó, entre ella prueba contra [Nombre007], también resultaría ilícita, y así se solicita sea declarado.

Llevan razón en su reclamo. Los argumentos para analizar este problema jurídico ya han sido explicitados más atrás, al resolver el recurso planteado por el Dr. [Nombre012] (A-1). Así las cosas, corresponde aplicar al justiciable [Nombre007], los mismos efectos que esta determinación tuvo para el justiciable [Nombre012], se declara la nulidad de la prueba documental No. 588 y todos los elementos probatorios que de esta dependen, se declara la nulidad de la sentencia condenatoria penal dictada en contra de [Nombre007] y en su lugar se le absuelve directamente de toda pena y responsabilidad. La sentencia impugnada se mantiene incólume en cuanto lo absolvió por dos delitos de Enriquecimiento Ilícito. B. Vicios en cuanto a la determinación del hecho y la valoración de la prueba para determinar los indicios que condujeron a la condena por el delito de Enriquecimiento Ilícito. 1) En cuanto a los elementos de la tipicidad objetiva y subjetiva del delito de Enriquecimiento Ilícito que deben integrar la acusación y la prueba que debe ser valorada para la atribución jurídico penal del hecho al justiciable.

En el primer motivo del recurso del licenciado Wilson Flores, y en el cuarto motivo por la forma del recurso de la licenciada Nazira Merayo, se alega una errónea aplicación de la ley sustantiva, pues los hechos descritos en la acusación correspondientes a los hechos 203, 208 y 210 no describen los elementos objetivos y subjetivos del tipo penal del enriquecimiento ilícito que se acusa correspondiente al artículo 346, inciso 3 del Código Penal. Argumentan que la sentencia incurre en violación al principio de correlación entre acusación y sentencia, tal y como está establecido en los artículos 363, inciso b) y 369, inciso h), ambos del Código Procesal Penal. Según el licenciado Wilson Flores, los hechos que van del 199 al número 211 presentan problemas con respecto a la descripción típica del delito de enriquecimiento ilícito. Llevan razón en su reclamo. Esta Cámara ha leído con atención los hechos que se atribuyen al justiciable [Nombre007], y se observa que, en efecto, se atribuye que se le presentó diversas dádivas consistentes en dinero, que fueron admitidas por él, mientras permanecía en su cargo como funcionario del ICE en el Departamento de Conmutación, es así que el hecho 201 establece:

“…201) El encartado [Nombre015] y el indiciado [Nombre035], como representantes de la empresa Alcatel, le presentaron al acusado [Nombre007] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre007] mientras permanecía en el ejercicio de su cargo de funcionario público, propiamente de Subjefe de la Dirección del Departamento de Conmutación del I.C.E., situación que le generó un enriquecimiento ilícito.” El Enriquecimiento Ilícito que se acusa parte, tal y como lo podría estar planteando el Ministerio Público en su acusación, en primer lugar, por haber sido sujeto de un ofrecimiento de dádiva, que no es un elemento específico y especializante del delito acusado, sino de algunas otras figuras penales, como lo es, por ejemplo, el delito de Cohecho. Según lo postula la defensa, habría necesidad que la acusación contemplara los elementos especializantes del Enriquecimiento Ilícito cada vez que se describe el acto realizado por el encartado, en las diversas ocasiones en que dicha criminalidad haya podido tener lugar.

Esto es, cada vez que se dé un ofrecimiento de dádiva debería de haber también la imputación de la aceptación correlativa. En una palabra, para que las imputaciones penales sean completas deberían de estar descritas de esta manera cada vez que se le atribuye un nuevo hecho de Enriquecimiento Ilícito al justiciable. Además, el delito de Enriquecimiento Ilícito exige que se describa en la acusación que la presentación de la dádiva se da en consideración al oficio de la persona que es funcionario público, pues la dádiva por sí sola ya es un requisito objetivo del tipo penal de varias delincuencias como el cohecho impropio, el cohecho propio o la misma aceptación de dádivas por acto cumplido, por ejemplo. De allí, que no se clarifique, con la precisión requerida, el hecho acusado y la eventual tipicidad de la conducta que de allí podría derivar. En los hechos 203, 208 y 210 se vuelve a notar esta falencia:

“Sin precisar fecha, pero después del 10 de diciembre de 2001 y antes del 10 de enero de 2002, [Nombre015] y [Nombre035] le presentaron al imputado [Nombre007] una dádiva consistente en los certificados de inversión Nos. [Valor040], [Valor041], [Valor042] y [Valor043], todos emitidos al portador el 10 de diciembre de 2001, con fecha de vencimiento el 11 de enero de 2002, del Banco Cuscatlán de Costa Rica, cada uno por diez mil dólares ($10.000), para un total de cincuenta mil dólares ($50.000) y sus cupones de intereses por ciento ochenta y dos dólares con noventa y cinco centavos ($182.95)”.

En el hecho 208 se acusa:

“Sin precisar fecha, pero entre el 2 de julio de 2002 y el 5 de agosto de ese mismo año, [Nombre015] y [Nombre035] presentaron al imputado al imputado [Nombre007] una dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica N° [Valor044], [Valor045], [Valor046] por el monto respectivo de diez mil dólares ($10.000), cinco mil dólares ($5.000) y cinco mil dólares ($5.000) y sus correspondientes cupones de intereses por la suma total de $53.17.” En el hecho 210 se acusa:

“Sin precisar fecha, pero entre el 17 de diciembre de 2002 y el 21 de enero de 2003, los corruptores [Nombre015] y [Nombre035], presentaron al imputado al imputado [Nombre007] una tercera dádiva consistente en los certificados de inversión al portador del Banco Cuscatlán de Costa Rica N° [Valor047], [Valor048], [Valor049] y [Valor050] cada uno por el monto de diez mil dólares ($10.000) para un total de cuarenta mil dólares ($40.000) y sus respectivos cupones de interés para un total de $100.80., que fue aceptada por el imputado [Nombre007] y la dispuso de la siguiente manera:..”.

Al respecto indican los defensores del encartado [Nombre007] que la descripción anterior no contiene los requisitos necesarios a la tipicidad objetiva y subjetiva del ilícito acusado, por lo que, eventualmente, devendrían los hechos acusados en atípicos al no establecerse qué, cómo y de qué manera se ha realizado el comportamiento achacado al justiciable. Por una parte, teniendo en cuenta que estamos ante una conducta dolosa en donde quien presenta la dádiva la hace en consideración al oficio del funcionario que la recibe y la acepta, habría necesidad de describir las circunstancias en las que este conocimiento tiene un papel, más allá de admitir, que tal elemento deduciría de la posición que [Nombre007] ostentaba en el ICE. Esta segunda condición del hecho típico también es dolosa, y requiere que el sujeto activo conozca la razón que motiva la presentación de la dádiva. Como bien se expresa en el voto salvado del Juez Camacho, el tipo penal del Enriquecimiento Ilícito puede cumplirse a partir de dos conductas alternativas: i) la aceptación de dádiva ofrecida y ii) la aceptación de dádiva presentada.

Se trata, en efecto, de dos posibilidades para la tipicidad del hecho, que deben ser deslindadas para clarificar qué es lo que se atribuye al sujeto activo, quien es, en efecto un funcionario público, y es objeto de estos ofrecimientos en consideración a dicho cargo. Es por ello que determinando el ámbito de la prohibición, cumpliría el tipo penal el sujeto activo que entra en la tenencia material de la dádiva que es puesta en su presencia por otro sujeto; pero también sería punible el sujeto activo que acepta recibir en el futuro la dádiva que otro sujeto se ha comprometido a darle. Como puede verse, la figura penal es compleja, requiere la demostración de estas circunstancias alternativas, con el fin de fijar las condiciones del hecho atribuido. No obstante, como bien lo señala el Juez Camacho en su voto salvado, se trata de dos hechos que no tienen la misma significación jurídica (cfr.

Voto Salvado del Juez Camacho, folios 2013 a 2015). La recepción de la dádiva tiene consecuencias diferentes en estas conductas típicas alternativas: en el caso donde se consuma con la sola aceptación de la dádiva ofrecida, no es necesario que haya demostración de la recepción de la dádiva misma, pues la consumación se da con la “aceptación”. En el otro caso, precisamente la fase consumativa requiere que haya una demostración de la recepción de la dádiva. Sostiene al respecto el voto salvado las siguientes consideraciones, que esta Cámara avala:

“La recepción de una dádiva a partir de un ofrecimiento previamente aceptado y la aceptación de una dádiva presentada, no tienen el mismo significado jurídico. En el primer supuesto es un acto de agotamiento irrelevante y el segundo supuesto es el acto que consuma el delito. Todos los elementos del tipo penal deben estar presentes al momento de la consumación. Es al momento de la consumación que el sujeto activo debe ser funcionario público, que la dádiva debe serle presentada y ofrecida en consideración a su oficio y además, el funcionario debe permanecer para ese momento en el ejercicio del cargo. En el supuesto de la conducta típica de “aceptación de dádiva presentada”, todos los citados elementos típicos deben cumplirse cuando el sujeto activo entra en posesión de la dádiva. En el supuesto de la conducta típica de “aceptación de ofrecimiento de dádiva”, todos los elementos típicos deben estar presentes cuando se da la aceptación, pero no es necesario que todos los elementos típicos estén presentes para cuando el sujeto activo entra en posesión material de la dádiva, que como hemos visto, es un acto irrelevante, momento para el cual, podría haber dejado de ser funcionario público y ello en nada afectaría la tipicidad de la conducta al momento de la consumación (aceptación del ofrecimiento).

Es por lo anterior, que es imprescindible determinar en cada caso, la conducta concreta realizada por el sujeto activo a la luz del tipo penal del enriquecimiento ilícito” (Voto Salvado del Juez Jorge Camacho, folio 2015).

En el caso de los hechos atribuidos a [Nombre007] estaríamos, entonces, en presencia de una acusación por un hecho incompleto, que no satisface todos los elementos del tipo objetivo y deja sin substancia el elemento subjetivo del hecho, tanto de quien ofrece como de quien acepta la dádiva. Se tiene en cuenta, por supuesto, que el Enriquecimiento Ilícito es una figura penal subsidiaria, y que entra en consideración ante la dificultad o imposibilidad de demostrar otras figuras contra los deberes de la función pública, pero en este concreto caso de la criminalidad imputada a [Nombre007], esa subsidiariedad no puede ser encontrada, no sólo porque la acusación se queda en el mero hecho del ofrecimiento de la dádiva, y no elabora con prueba suficiente las otras consideraciones típicas del hecho punible. Más aun, la acusación deja a una elaboración judicial los requisitos de encuadramiento de la conducta punible que no están en la hipótesis fiscal y que deben surgir de un esfuerzo de elucubración que riñe con los límites del quehacer judicial que impone el artículo 39 de la Constitución Política.

Los defectos de la acusación llevan a impedir la atribución de una conducta criminosa a [Nombre007], por más prueba que haya disponible de las sumas de dinero ofrecidas o recibidas. Es por ello, que habría que anular la sentencia condenatoria en contra de [Nombre007] por un delito de Enriquecimiento Ilícito, por no haberse acusado y demostrado los elementos de la tipicidad objetiva y subjetiva alternativas que se le atribuyen; y corresponde, en tal caso, absolverle de toda pena y responsabilidad por el delito de Enriquecimiento Ilícito, recalificado, por el que se le condenó. 2) Afrenta al principio de in dubio pro reo, pues no es posible saber a cuál dádiva le concede el Tribunal la virtud de conferir la condición de ser una “aceptación de dádiva presentada” que tiene elementos caracterizantes específicos que debieron ser acusados y demostrados por el tribunal de mérito. En el cuarto motivo por la forma del recurso del licenciado Wilson Flores se acusa infracción al principio de in dubio pro reo, pues el tribunal, además de modificar sustancialmente los hechos acusados, condena al encartado por un Enriquecimiento Ilícito que incluye el pago de una dádiva dividida en un pago en tres tractos..

Lo planteado implica una lesión al principio de correlación entre acusación y sentencia, e implica una contravención a lo preceptuado en los artículos 9, 363 inciso b y 369 inciso d, todos del Código Procesal Penal, actuación judicial que se sanciona con nulidad. Según los recurrentes, no se sabe a ciencia cierta cuál de las tres dádivas que fueron ofrecidas al justiciable lo fue en consideración a su cargo como funcionario público, esto es, como Subjefe de la Dirección del Departamento de Conmutación del Instituto Costarricense de Electricidad y mientras se encontraba ejerciendo el mismo. Esto último, porque tal y como se expuso en el análisis precedente, cada aceptación de una dádiva constituiría un hecho independiente, y, a todas luces, el hecho contemplado como 201 no cobijaría a las tres dádivas que según lo acusado recibió el señor [Nombre007]. La tesis de fondo de los recursos de los licenciados Flores y Merayo conllevaría aceptar que si alguna de las dádivas descritas en el hecho 201 conserva su materialidad típica, resultaría que las otras dos serían atípicas y habría que absolver al justiciable por su comisión.

Las conducta subsistente, si es que ella mantiene los requisitos de tipicidad, tendría problemas probatorios, que impediría saber cuál de las dádivas, en concreto, fue recibida en condición de ser el encartado funcionario público. Junto a ello, hay un ámbito de duda importante, pues no se sabe qué tipo de comportamiento debería desplegar don [Nombre007]. Una primera hipótesis implicaría que se esperaba de él que realizara un acto propio de sus funciones. Una segunda hipótesis estaría constituida por la esperanza que [Nombre007] omitiera un acto propio de sus funciones. Si esto fuera así, la tipicidad aplicable al comportamiento de [Nombre007], en ambas hipótesis, correspondería a un tipo penal diverso al contenido en el artículo 346, inciso 3). Lo mismo sucedería si el acto esperable de [Nombre007] era que retardara un acto que correspondía a sus funciones o realizara uno contrario a ellas.

Es aceptable también, una hipótesis adicional, y es que la dádiva hubiese sido pensada como premio por un acto cumplido u omitido. No estaría fuera de panorama, tampoco, que se acusara a [Nombre007], en abuso de su cargo, de haber obligado a [Nombre015] o a [Nombre035] a dar o prometer una dádiva. Caso este último que también corresponde a una imputación diversa al Enriquecimiento Ilícito, propiamente dicho. La solución propuesta por el voto de mayoría procura, entonces, concentrar el enriquecimiento ilícito en una sola oferta con una dádiva en tres tractos. Esta circunstancia, en efecto, no fue incluida en la acusación. El Ministerio Público acusó tres delitos independientes sin elementos caracterizantes, y en el Considerando XII de la Sentencia, sobre “Descripción de la conducta del imputado [Nombre007]”, se señaló:

“190) El encartado [Nombre015] y el indiciado [Nombre035], como representantes de la empresa Alcatel, le presentaron al acusado [Nombre007] en consideración a su oficio una dádiva consistente en dinero, misma que fue admitida por parte de [Nombre007] mientras permanecía en el ejercicio de su cargo de funcionario público, propiamente de Subjefe de la Dirección del Departamento de Conmutación del I.C.E., situación que le generó un enriquecimiento ilícito. Dicha dádiva fue pagada en tres tractos.” Esto, sin duda alguna, transforma el hecho acusado, tratando de acomodar la circunstancia de las dádivas y la ausencia de elementos especializantes de cada una de ellas, para involucrar un hecho que sorprende a la defensa, en el sentido de que se condena por una dádiva en tractos que recibiría [Nombre007] por la realización de actividades u omisiones que no se clarifican, así como las condiciones dentro de las cuáles se último no se compadece de la circunstancia aceptada por el tribunal de mayoría que condena al justiciable por “aceptación de dádiva presentada”, que es un hecho diferente y que requiere la demostración de elementos caracterizantes diferentes que no han sido probados, y mucho menos atribuidos al justiciable.

Cierto es que el Tribunal, en aplicación del principio de favorabilidad, prefirió condenar por un solo hecho de Enriquecimiento Ilícito, sin embargo, a pesar de ello, la imputación de una sola oferta de dádiva no permite saber de cuál de ellas se trata, tal y como se explicó en el acápite anterior, y podría llevar a pensar en la tipicidad de diferentes hechos delictivos donde una dádiva es un elemento a tomar en consideración como es el caso del cohecho propio, del cohecho impropio, de la aceptación de dádivas por acto cumplido y de la misma penalidad del corruptor. Es por ello, que por esta razón tampoco habría base para condenar al encartado [Nombre007], y habría razón suficiente para declarar la nulidad de la sentencia, en cuanto tiene al justiciable como autor responsable de un delito de Enriquecimiento Ilícito, por recalificación. A) En cuanto a la condena sobre las costas personales impuesta al encartado [Nombre007].

Acusa el licenciado Wilson Flores que la sentencia incurre en el vicio de falta de fundamentación en torno a este aspecto, y con ello lesiona lo preceptuado en los artículos 142, 363 inciso b y 369 inciso d, ambos del Código Procesal Penal, aspecto que se sanciona con nulidad. En igual sentido se pronuncia el quinto motivo del recurso de la licenciada Nazira Merayo. Comienzan su argumentación con lo planteado en cuanto a las costas personales impuestas a [Nombre007], sin fundamento probatorio en cuanto a su solvencia. En cuanto al tema de las costas, indica la sentencia: “Dada la comprobada solvencia económica de los sentenciados [Nombre004], [Nombre001], [Nombre018] y [Nombre007], quienes optaron por la asesoría legal de abogados de la Defensa Pública del Poder Judicial, de conformidad con los artículos 152 de la Ley Orgánica del Poder Judicial y 265 del Código Procesal Penal, deberá cada uno cancelar los honorarios de los profesionales que los han asistido durante este proceso.

Rubro fijado en la suma de DIEZ MILLONES DE COLONES que cubre su desempeño profesional desde su apersonamiento y hasta el dictado de este fallo, no así los eventuales recursos y demás gestiones que con posterioridad a su emisión sean requeridos. Dicha suma deberá cancelarla cada uno de los imputados a favor del Poder Judicial dentro de los quince días siguientes computados a partir de la firmeza del fallo, con el consiguiente embargo y remate de sus bienes ante el incumplimiento de esta obligación.” Al respecto, indica que la sentencia no dice cómo llega a la conclusión de la efectiva solvencia económica de [Nombre007], lo que deja el fallo infundamentado al respecto, pues aunque no está afectada la libertad personal del justiciable, el fallo debe bastarse en sus razones en cuanto a la afectación al patrimonio del imputado. Este aspecto debe declararse con lugar. En efecto, la sentencia no tiene una fundamentación adecuada de la condición económica del justiciable y de las razones por las cuales debería de pagar la actuación judicial de los defensores públicos que lo han representado.

Este aspecto, de gran trascendencia para la causa requería una motivación detallada que permita entender por qué [Nombre007] ha de asumir estos costos del proceso en su contra. En virtud de ello, y por carecer la sentencia de razón suficiente a este respecto, corresponde declarar su nulidad en punto al tema de costas. B. Comiso del vehículo marca Suzuki Grand Vitara XL, placa N° [Valor032]. El justiciable fue condenado, como consecuencia derivada del hecho punible, al comiso de un vehículo, concretamente un Suzuki Grand Vitara XL, placa No. [Valor032], del que no hay en sentencia una determinación razonable que tal vehículo haya sido adquirido con dineros provenientes del ilícito investigado o sea producto directo de la actividad criminal emprendida. Llevan razón los recurrentes en relación al tema del comiso de este vehículo. Se aprecia que la resolución de este extremo es infundada lo que en principio amerita su nulidad para nueva sustanciación, no obstante, en virtud de la forma en que se han resuelto los otros temas planteados en relación con [Nombre007], no procede el reenvío y por el contrario, con fundamento en lo dispuesto en el párrafo tercero del artículo 465 del Código Procesal Penal, en esta sede de apelación procede enmendar la cuestión planteada.

El vehículo en cuestión no ha podido determinarse que haya sido adquirido con dineros provenientes de la presunta actividad ilícita de [Nombre007], la sola circunstancia que el justiciable ostentara la titularidad de este vehículo no es suficiente para acreditar que fue adquirido con dinero proveniente de actividades ilícitas. En consecuencia, procede declarar con lugar el motivo de impugnación, ordenar la nulidad del comiso y la devolución del vehículo a quien se le ha decomisado.

X.SE RESUELVE EL RECURSO DE APELACIÓN PLANTEADO POR EL DEFENSOR MARIO NAVARRO A FAVOR DEL ACUSADO [Nombre009].- El licenciado Mario Navarro formuló recurso de casación a favor de su representado [Nombre009], pero también a partir del folio 172091 y concluyendo en el folio 172271 del Tomo XXXVIII, con fundamento en los artículos 39 y 41 de la Constitución Política; 1, 142,184, 363, 367, 437, 438, 439,447, 458, 459 y 460 del Código Procesal Penal, Transitorio III de la Ley No. 8837 de Creación del Recurso de Apelación de la Sentencia y dentro del plazo de dos meses otorgado por la Sala Tercera de la Corte Suprema de Justicia, interpuso RECURSO DE APELACIÓN en contra de la sentencia 167-2011 dictada por el Tribunal Penal de la Hacienda y la Función Pública del Segundo Circuito Judicial de San José, a las quince horas del 27 de abril de 2011, que condenó a su defendido por tres delitos de Penalidad del Corruptor por Corrupción Agravada en la modalidad de Cohecho impropio, imponiéndole un total de 15 años de prisión.

En este recurso de apelación, el licenciado Mario Navarro Arias incluye dos motivos por la forma nuevos, sobre la presunta incorporación de prueba ilícita en el fallo, así como por inconformidad con la determinación de los hechos. De la misma manera agrega un motivo nuevo que dirige contra la escueta fundamentación de la pena impuesta a su representado, así como tres motivos en relación con el tema civil de la sentencia. De los temas propuestos por el licenciado Navarro, en representación justiciable, esta Cámara procede a resolver los motivos que por sí solos implican la nulidad de la sentencia y la absolutoria del señor [Nombre009] por tres delitos de Penalidad del Corruptor por Corrupción Agravada en la modalidad de Cohecho impropio. Sección Primera.- Vicios que por sí solos implican la nulidad de todo lo resuelto. A. Prueba espuria. En el primer motivo por la forma del recurso del licenciado Mario Navarro a favor de [Nombre009], se alega la incorporación de prueba ilícita y la consecuente violación al debido proceso.

Indica se ha insistido en la ilicitud de la prueba documental número 588, que es copia certificada de la Asistencia Judicial de la República de Panamá, enviada mediante notas PGR-030-2004 de fecha 10 de septiembre de 2004 y 316-DN-TALM-04 de fecha de septiembre de 2004, que consta de 420 folios. Esta prueba, que contiene información bancaria de la sociedad panameña Marchwood Holding, estaría viciada por varias razones: 1. Se hizo llegar al proceso por instancia del Ministerio Público y sin mediar orden judicial previa. 2.La documentación bancaria fue obtenida del así denominado caso “CAJA-Fischel” bancario, la Sala Tercera de la Corte Suprema de Justicia, por resolución número 2011-00499 de las 11:45 hrs. del 11 de mayo de 2011, por mayoría declaró con lugar el recurso interpuesto por la defensa, decretando la nulidad de la prueba recabada en Panamá, y todos los elementos probatorios que de ésta dependen. 3.

En virtud de que se violentó la cadena de la prueba, al haberse filtrado a la prensa el contenido de dicha prueba, mucho antes de que las partes intervinientes en el proceso tuvieran conocimiento de ella, tanto es así que en el periódico “La Nación” del día 8 de septiembre de 2004, visible a folios 2 y 3 del Tomo I, se informa al público de su contenido. En igual sentido, y para mayor claridad, refiere al hecho acusado número 190, donde “Telenoticias” de los primeros días del mes de septiembre de 2004, donde se indica que a raíz de la prueba recabada en Panamá se descubrió que la Sociedad Servicios Notariales Q.C. depositó fuertes sumas de dinero en la cuenta de Marchwood Holding Company. En cuanto a lo indicado sobre la ilicitud de la prueba 588 considera que no se ordenó el levantamiento del secreto bancario por orden de juez competente, y, por consiguiente, tampoco existió resolución fundada que valorara dicha diligencia, previo a su realización.

El Tribunal de Juicio rechazó la actividad procesal defectuosa interpuesta por la defensa, indicando que no era necesaria la orden de levantamiento de secreto bancario, toda vez que el propio [Nombre032], coacusado en el proceso Caja-Fischel, y testigo en el subjudice, había dado su consentimiento para que dicha prueba fuera recabada. Estima el recurrente, la autorización dada por [Nombre032], alcanzaría para los elementos de dicha prueba que afecten sus propios intereses, pero en modo alguno puede autorizar el menoscabo de derechos fundamentales de los restantes acusados. Según lo analiza el licenciado Navarro, la Ley No. 7425, Ley sobre Registro y Secuestro de Documentos Privados e Intervención de las Comunicaciones, en su artículo 29, claramente establece que “No existirá intromisión ilegítima cuando el titular del derecho otorgue su consentimiento deberá contarse con el consentimiento expreso de todos”.

Además, si hipotéticamente [Nombre032] estuviera legitimado para otorgar ese consentimiento, es claro, según su punto de vista, que dicho asentimiento debió ser previo y no posterior. Cita en sustento de su tesis la doctrina del Prof. Francisco Castillo, en su texto “Derecho Penal. Parte General, p. 366, citado, a su vez, por el voto de minoría. Con apoyo también en el Voto 111-1993 de la Sala Tercera, de las 8:40 hrs. del 26 de marzo de 1993 (la cual tiene referencias doctrinales a Bacigalupo, quien también refiere a Schmidthäuser), insiste en que el consentimiento debe ser anterior a la lesión del bien jurídico. A partir de este aserto doctrinal, dice que la prueba que se arguye de ilegítima fue obtenida en septiembre de 2004, y no es sino hasta mayo de 2010, según documento no. 759 que el señor [Nombre032] “convalida” con su consentimiento la obtención de la prueba ilegalmente obtenida en Panamá.

Este consentimiento, entonces, no puede disimular la lesión constitucional cometida con relación a los derechos de los demás coencartados. Si no se tenía el consentimiento de todos los afectados, debió solicitarse orden expresa de un juez competente, para disponer el levantamiento del secreto bancario, lo cual evidentemente no se produjo, y de ahí la irregular actuación del Ministerio Público. Como fue la prueba 588 la que permitió detectar la existencia de Servicios Notariales Q.C. S.A. tal y como se desprende de la lectura del hecho acusado número 190, y a partir de ello solicitar el levantamiento del secreto bancario en relación a esa sociedad anónima, según se desprende de las pruebas documentales números 86, 87, 90 y 91, reseñadas por el Ministerio Público en su acusación fiscal y utilizadas como fundamento esencial para el dictado de la sentencia. Tanto la solicitud, como las órdenes de levantamiento del secreto serían, tal y como lo postula el impugnante, carentes de validez probatoria.

Lo mismo sucede con la prueba obtenida a través del Banco Cuscatlán, así como toda aquella que está vinculada con la prueba documental número 588 y que se refiera a Servicios Notariales QC S.A. Sobre el tema de la prueba ilícita y su problemática citó varios precedentes jurisprudenciales de la Sala Tercera y de la Sala Constitucional, que subrayan la necesidad de obtener la averiguación de la verdad real a través de un juicio justo, basado en prueba legítima, que será valorada por los jueces. Revisa también el criterio de la Sala Tercera sobre la prueba bancaria obtenida en la causa Caja-Fischel, y deduce que se está en presencia de un defecto absoluto que ha sido soslayado por las autoridades intervinientes en la causa conocida como Caja-Fischel. Considera, pues, que la solicitud directa del Ministerio Público costarricense a la Procuraduría General de la República para que obtuviera la prueba, sin la intervención del Juez de Garantías, resulta inadmisible.

Consideró, al respecto, el énfasis hecho por el ordenamiento jurídico de Costa Rica de confiar al juez la decisión final cuando están en juego derechos fundamentales de los ciudadanos, especialmente, cuando se va a afectar el derecho a la intimidad, el secreto de las comunicaciones o la inviolabilidad de los documentos privados. La Sala subrayó la necesidad, de conformidad con la legislación ordinaria, que se revisase que la orden estuviera fundamentada, así como que se individualizara los documentos sobre los que recaería la orden, el nombre de la persona que los tuviera en su poder y lugar donde estos se encuentren. En cuanto a la actividad delictiva, sería indispensable valorar el indicio comprobado respecto a la comisión del hecho y la ponderación de los extremos del principio de proporcionalidad. La solicitud, tal y como fue formalizada por el Ministerio Público costarricense, incumplió con un requisito que no era un mero formalismo sino que era un elemento primordial para permitir, conforme al derecho interno, al intromisión en la esfera privada de una persona.

La Sala incluye un listado de una serie de normas del orden jurídico que exigirían dicha intervención jurisdiccional. Entre ellos, los artículos 24 de la Constitución Política; 12 de la Declaración Universal sobre Derechos Humanos y 17 del Pacto Internacional de Derechos Civiles y Políticos, principios y derechos recogidos en los artículos 2 y 3 de la Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de las Comunicaciones y 107 de la Ley Orgánica del Poder Judicial. Supone ello, lo afirma la Sala, que los artículos 226 y 290 párrafo final del Código Procesal Penal, establecer la posibilidad que el Ministerio Público requiera informes de personas particulares o de entidades públicas, de acuerdo a lo estipulado, mientras no se trate de información privada, protegida por el artículo 24 constitucional, de lo contrario se produciría , conforme al párrafo segundo del artículo 181 del Código Procesal Penal, una vulneración al derecho a la inviolabilidad de los documentos privados.

Insiste que el Tratado de Asistencia Legal Mutua es un instrumento para fortalecer y facilitar la cooperación de los órganos de justicia en la región, pero dicha cooperación debe realizarse en respeto pleno a la legislación interna de los países miembros. La agilización de procedimientos no podría ser, sostiene el fallo de la Sala Tercera, una forma de fomentar la arbitrariedad, la prepotencia o el irrespeto de las garantías constitucionales y el orden interno vigente. Asegura, no se puede alcanzar una condena a ultranza sino una que resulte de una correcta introducción de prueba al proceso, conforme a la Constitución y la ley vigente en el país, y, en su valoración, con apego estricto a las reglas de valoración de la sana crítica. Considera, finalmente, luego de hacer algunas acotaciones valorativas y doctrinales, que el Tratado de Asistencia no está por encima de la Constitución Política.

Por ello, la obtención de los elementos de prueba que se hicieron llegar al proceso penal seguido contra [Nombre032] y los otros coimputados, mediante las cartas rogatorias a Panamá y sus ampliaciones, sin observancia de las garantías constitucionales y legales que rigen para poder solicitar su obtención conforme al orden interno en Costa Rica, constituyen elementos de prueba espuria, ilegítimamente incorporados al proceso. Y mediante la actividad procesal defectuosa de carácter absoluto, se declara su ineficacia, así como los demás elementos de prueba que se derivan directamente de ella, concretamente: la prueba documental obtenida por medio de las Cartas Rogatorias a Panamá y sus ampliaciones, la declaración indagatoria de [Nombre032], en lo que se fundamente en la prueba de Panamá, entre otras consideraciones de interés. Solicita el impugnante, se declare con lugar el motivo de apelación y se decrete la nulidad, la ineficacia de la prueba recabada en Panamá por medio del Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá, así como todos los elementos probatorios que de ésta dependan directamente, y, en tal virtud por carecer de fundamento probatorio la acusación, se absuelva a su defendido [Nombre009], de toda pena y responsabilidad por los hechos que se le han atribuido y se disponga su inmediata libertad, dado que resulta innecesario reenviar el proceso a un nuevo juicio en los términos establecidos en la ley que regula el recurso de apelación de las sentencias.

Lleva razón en su reclamo. Los argumentos para analizar este problema jurídico ya han sido explicitados más atrás, al resolver el recurso planteado por el Dr. [Nombre012] (A-1). Así las cosas, corresponde aplicar al justiciable [Nombre009], los mismos efectos que esta determinación tuvo para el justiciable [Nombre012], se declara la nulidad de la prueba documental No. 588 y todos los elementos probatorios que de esta dependen, se declara la nulidad de la sentencia condenatoria penal dictada en contra de [Nombre009] y en su lugar se le absuelve directamente de toda pena y responsabilidad. B. Vicios en cuanto a la determinación del hecho y la valoración de la prueba para determinar los indicios que condujeron a la condena por tres delitos de Penalidad del Corruptor por Corrupción Agravada en la modalidad de Cohecho impropio. 1. Violación al principio de valoración de la prueba y a las reglas de la sana crítica a partir de la valoración que se da a la declaración de [Nombre026] sobre la promesa de que se pagaría a través de cuentas de Servicios Notariales Q.C.

S.A. El licenciado Navarro planteó este argumento tanto en el recurso de casación como en el de apelación por conversión. En el motivo séptimo por la forma cuestiona que el Tribunal en su voto de mayoría sostuviera la existencia de un plan previo donde participa [Nombre009] a partir de la versión de [Nombre026], pues según el fallo, este último afirmó que sabía desde un principio que se le cancelaría la promesa por medio de pagos o transferencias desde las cuentas de Servicios Notariales QC S.A. Remite al interrogatorio que la defensa realizó a [Nombre026] acerca de su conocimiento de [Nombre009], y la forma en que se interesó por esta sociedad anónima. Sobre este tema sostiene en su libelo lo siguiente: “…Cuando está declarando [Nombre026], este defensor le cuestiona si conoce o no a [Nombre009]. [Nombre026] responde afirmativamente y agrega que él conoció a mi cliente en la década de los noventa, en una reunión del partido Unidad Social Cristina, pues parecía que ambos eran militantes de ese partido político.

Al confrontar la defensa de [Nombre009] a [Nombre026] en torno a los hechos investigados y fecha de los mismos, le responde que NO, QUE CON RELACION A ESTOS HECHOS NUNCA TUVO CONTACTO CON [Nombre009]. Y agrega en resumen que, CONOCIENDO QUE LAS TRANSFERENCIAS DE DINERO PROVENIAN DE UNA CUENTA BANCARIA A NOMBRE DE LA SOCIEDAD SNQC, se avoco a la tarea de investigar quienes estaban atrás de esa cuenta, y así fue como LOGRA PERCATARSE, ENTERARSE IMPONERSE, TENER CONOCIMIENTO, ADVERTIR QUE QUIEN MANEJABA ESA CUENTA ERA mi representado [Nombre009]. Pero nunca dijo, afirmo o señalo que PREVIO A LAS TRANSFERENCIAS DE DINERO o entregas de los certificados a plazo, el tuviera conocimiento que se le iba a cancelar por intermedio de SNQC, como erróneamente lo afirma el Tribunal, violentando con ello las reglas de sana critica, particularmente los principios de razón suficiente y derivación en la valoración de los elementos probatorios.

Siendo esta circunstancia un pilar fundamental para atribuir mi representado su participación en un plan previo para la comisión de delitos, es evidente que el fallo presenta un vicio insalvable…”. Rechaza también la tesis del tribunal, agregando el detalle que tampoco hay prueba que relacione a su cliente con [Nombre004] o con [Nombre001], en el sentido de haberse encontrado en reuniones, conversaciones o de cualquier otra manera con ellos. No hay contacto entre ellos, menos antes de que se diera el proyecto de las 400 mil líneas celulares, o antes que se produjera el refrendo de la Contraloría o, incluso, antes de la conformación del contrato entre Alcatel y el I.C.E. Considera que la conclusión judicial lesiona las reglas de la sana crítica, no sólo porque no hay elementos para pensar en un posible actuar dentro de ese plan previo presuntamente conocido por él, como porque el resto de los indicios que utiliza el tribunal son anfibológicos al respecto, como lo es, por ejemplo, el parentesco entre [Nombre009] y [Nombre015].

Así las cosas, sugiere que si se suprime hipotéticamente la afirmación falsa sostenida por el Tribunal, la que afirma QUE [Nombre026] INDICO QUE DESDE EL INICIO EL SABIA QUE SE LE IBA A CANCELAR POR INTERMEDIO DE SNQC, no es posible mantener la condenatoria de su representado como parte de un plan previo establecido para la comisión de los delitos de Cohecho Impropio Agravado. Sugiere, entonces, que si su tesitura es admitida, lo que cabe, en aplicación del principio de economía procesal, es decir el contenido del numeral 9 del Código procesal Penal, es decir el principio de in dubio pro reo, y en tal sentido, estarse a lo que más favorezca a su representado, es decir, que él únicamente hizo la entrega de los dineros sin participar en el plan previo. Si esto es así, entonces su conducta es atípica por no constituir la criminalidad que se le reprocha o, al menos, actos de favorecimiento real que tendrían las consecuencias que esta Cámara decida darle.

En forma subsidiaria, solicita, el juicio de reenvío, posterior a la ineficacia del fallo en su totalidad y del debate celebrado. Lleva razón en su reclamo. Esta Cámara ha escuchado con atención la declaración de [Nombre026] y se observa que, en efecto, él no afirma que supiera que [Nombre009] manejaría los fondos que recibiría como pago de las dádivas que le fueron prometidas, como erróneamente valora el Tribunal en el fallo. Adicionalmente a ello, y como ya se ha sostenido en relación al análisis de la declaración de [Nombre026] con respecto al Dr. [Nombre012], la declaración de este “imputado colaborador” es poco confiable y debía ser sometida a un análisis crítico sobre sus consecuencias, no sólo por las variaciones constantes sobre el contenido de lo sucedido, sino también por las modificaciones trascendentes de los hechos en las que incurrió. Su declaración ya ha sido reconocida por esta Cámara como poco confiable, no sólo por las diversas versiones ofrecidas de los hechos, sino porque existe certeza que la suya fue una declaración interesada por alcanzar la impunidad, lo que debía someter al tribunal de mayoría a un deber más férreo de ser suspicaz y someter a una crítica sólida y profunda todos los elementos de prueba independientes que confirmaran o corroboraran que, en efecto, don [Nombre009] era parte de un plan previo para corromper funcionarios públicos del ICE.

La sentencia el folio 1130 y siguientes, sostiene que había un plan previo construido por [Nombre015], [Nombre035], [Nombre009] y [Nombre018], para canalizar recursos de Alcatel CIT, haciéndole creer a sus personeros que dichos dineros eran para el pago de consultorías suscritas con las empresas Servicios Notariales Q.C. S.A. e Intelmar S.A. El voto de mayoría ubica al señor [Nombre009] como una ficha clave para el pago de las dádivas, en virtud de su vinculación a la Sociedad Servicios Notariales Q.C. S.A. y por los vínculos profesionales y consanguíneos con personeros de esa sociedad, a pesar de no ser él el representante legal de esa persona jurídica. La sentencia logra ubicarlo para agosto de 2001 (folio 1142) como Vicepresidente de la Sociedad anónima y por ello involucrado en los pagos que se hicieron a partir de esa fecha. En concreto, en la época que su esposa, la señora [Nombre074], de profesión maestra, era la dueña del capital social de Servicios Notariales QC S.A., a todas luces una persona que no guardaba relación con el giro de actividades de la persona jurídica, y por ello una mera representante simbólica de la sociedad.

Se le vincula a [Nombre009] también con [Nombre015], pues la esposa de don [Nombre015] es hermana de [Nombre009] (folio 1143 de la sentencia). Es por ello que la sentencia ubica para septiembre de 2001 a [Nombre009] a cargo de las actividades de la sociedad anónima, de hecho se le ubica girando instrucciones al Departamento de Banca Privada, dejando a la señora [Nombre074] como un simple testaferro sin mayor control de las actividades realizadas. Es por ello que esta Cámara estima que junto a la declaración de [Nombre026], todas estas circunstancias fueron decisivas para ubicar a [Nombre009] en el centro de los planes ejecutivos de corrupción de funcionarios, haciéndolo una pieza clave para hacer llegar los pagos a los funcionarios ímprobos. Sin embargo, no hay prueba que [Nombre009] haya participado directamente de ese plan común, más allá de la continuación de las actividades de consultoría que ya prestaba la Sociedad Anónima para Alcatel desde el año 1990.

Actividades de consultoría que también abarcaban el manejo de dineros, que por supuesto involucraban los pagos hechos en la época en que se investiga la intervención de esta sociedad anónima para el pago de dádivas, pero también para otros contratos y actividades de la empresa que no han sido argüidos de ilícitos. La sentencia ubica estos contratos de consultoría como un mecanismo para ocultar la causa real por la cual se recibían estos dineros, pero lo cierto es que dichos contratos se firman a principios de 2001 (hecho 55 de la acusación) cerca de la supuesta ideación del plan corruptor. Sin embargo, hay una prolongación de la actividad que ya se prestaba para Alcatel, y no se encuentra en la sentencia cómo la continuación de dicho giro de actividades de la empresa, que ya manejaba millones de dólares de Alcatel, no pudiera haber recibido órdenes, descontextualizadas del plan general corruptor para honrar contratos de consultoría, que parecían ser práctica normal de Alcatel según lo hicieron ver algunos testigos funcionarios de Alcatel en el juicio como la señora [Nombre075].

En todo caso, la sentencia no es convincente sobre la tesis alternativa que ofrece ahora la defensa, de que la actividad de [Nombre009] haya estado descontextualizada del plan corruptor y que pudiera haber sido, al menos, un favorecimiento material que no fue acusado. La falta de fundamentación al respecto, y el sostén del plan común corruptor, que no se basa más allá de una visión de conjunto que el tribunal en su voto de mayoría construyó, no se sostiene con los elementos que se han valorado, muy en concreto con la declaración de [Nombre026], por lo que, en aplicación del principio de in dubio pro reo habría que absolver de toda pena y responsabilidad a [Nombre009] de los tres ilícitos de Penalidad del Corruptor por Corrupción Agravada en la modalidad de Cohecho impropio que se le han reprochado. 2. Rechazo de prueba importante para la defensa técnica del justiciable [Nombre009]. En el octavo motivo por la forma del recurso de casación y en el décimo motivo del recurso de apelación planteados por el licenciado Mario Navarro a favor de [Nombre009], se alega VIOLACIÓN DEL DEBIDO PROCESO Y DERECHO DE DEFENSA AL RECHAZARSE PRUEBA IMPORTANTE PARA LA DEFENSA.

Argumenta que durante el periodo de debate, la empresa Alcatel y el Gobierno de los Estados Unidos de Norte América, concretamente la Corte de Distrito de los Estados Unidos para el Distrito Sur de Florida, según caso 1:10:CV=24620,DLG siendo La Comisión de Valores y Bolsa la Demandante en tanto que Alcatel Lucent S. A. la demandada. Negocian que desde diciembre de 2001 hasta octubre de 2004, agentes y o Subsidiarias de Alcatel S. A, violaron la Ley de Prácticas Corruptas en el Extranjero de 1977 y pagaron al menos siete millones de dólares en sobornos a oficiales del gobierno de costa rica para obtener o retener tres contratos de servicios de telefonía en costa rica por un monto aproximado a los trescientos tres millones de dólares. Ese acuerdo entre Gobierno y Empresa, fue puesto en conocimiento de las partes por parte del Instituto Costarricense de Electricidad en el mes de enero de dos mil once, posterior al receso de vacaciones.

Esta prueba, dice el defensor, era trascendente para las posiciones jurídicas que se venían sosteniendo en relación con el señor [Nombre009]. En primer lugar, porque se desenmascara a la empresa Alcatel como una empresa vinculada a actividades corruptoras para lograr y mantener contratos públicos en el campo de la telefonía. En segundo lugar, se ubica la actividad de Alcatel con los hechos investigados entre inicios del dos mil uno a octubre del dos mil cuatro. En tercer lugar, y esta es una tesis que se repite a lo largo del recurso de apelación, que las sumas recibidas por Servicios Notariales QC S.A. no solo provenían del contrato de las 400 mil líneas, sino también de otros contratos, estos lícitos y que no guardaban relación con el contrato “400K”. Dice que este documento de arreglo entre Alcatel y el gobierno de los EEUU demuestra lo que la defensa sostuvo en juicio. Sostiene que los otros defensores se opusieron a este documento excepto la defensa de [Nombre009].

El Tribunal, sin embargo, la rechaza por extemporánea y por no estar traducida. Los representantes del ICE intentan hacerla valer, más tarde, ya traducida, sin embargo, el Tribunal la rechaza por extemporánea. Considera, finalmente, que con esa prueba se logra sostener la tesis defensiva que había sido expuesta en debate, que desnaturaliza la versión que había dado [Nombre075], quien defendió a la empresa Alcatel en todo momento, y que fue una prueba esencial para la condena de su cliente. Esa prueba, en una palabra, según lo sostiene el recurrente, pondría en entredicho los entretelones fácticos de la sentencia y ya no se podría sostener que “…SNQC había recibido más de catorce millones de dólares por la tramitación de las cuatrocientas mil líneas celulares y para pagar sobornos por ese contrato…” Es por ello, y por las lesiones que alega en contra del debido proceso y el derecho de defensa, al rechazarse una prueba trascendental, solicita se declare la ineficacia de todo el fallo y se decrete el juicio de reenvío.

Considera que el vicio alegado es absoluto y no requería protesta previa. Este aspecto planteado por la defensa es, en efecto, un vicio absoluto, y corresponde declararlo así, por las lesiones que implica al derecho de defensa en juicio y al debido proceso. La prueba mencionada, en efecto, es importante para discutir la condición de Alcatel de empresa engañada por sus representantes, a un conglomerado multinacional que utilizaba mecanismos corruptores para alcanzar sus objetivos empresariales. El arreglo con el Gobierno de los EEUU tenía interés tanto para fijar los hechos en relación con la intervención de Servicios Notariales QC S.A. y el manejo de dineros que se hizo en la época de los hechos investigados, pero también sobre la posibilidad de que la visión fáctica planteada por la defensa tuviera solidez. Esto es, que hubo contratos lícitos, tramitados con antelación y que se justificaban en el giro de representación, asesoría, consultoría y administración que realizaba esta sociedad anónima para Alcatel, que trae elementos a discutir de gran relevancia y que debieron ser analizados en detalle por el fallo en cuestión.

La no admisión de esta prueba para mejor proveer, debidamente traducida, y no conocida anteriormente, pues la misma se generó en una etapa del proceso que las partes no podían controlar, tenía relevancia para los intereses de la defensa y debió haber sido admitida por el tribunal de mérito. Es en razón de lo cual, que por este motivo también debe anularse el fallo condenatorio en relación a [Nombre009]. 3. Errónea aplicación de la Ley Sustantiva. Violación al Principio de Legalidad. En el décimo segundo motivo de apelación del licenciado Mario Navarro, se plantea una incorrecta aplicación de la ley sustantiva en relación a la presunta criminalidad realizada por [Nombre009] en relación al coimputado [Nombre001]. Comienza su argumentación transcribiendo los hechos número 128,129, 130 y 131.

“ 128) El acusado [Nombre001] ingresó a laborar a finales del años 2000 para el I.C.E., en calidad de Asistente Ejecutivo de Administración Superior en la Presidencia Ejecutiva, designación que se formalizó a partir del 01 de enero de 2001.

129) Dentro de sus funciones le correspondía atender asuntos específicos de la Presidencia Ejecutiva tales como, analizar documentos sometidos a conocimiento y aprobación del Presidente Ejecutivo, brindar asesoría y recomendaciones sobre éstos, coordinar con las diferentes dependencias del Instituto lo relacionado con la ejecución de proyectos y directrices, coordinar y participar en las comisiones especiales conformadas, colaborar en la elaboración e implementación de programas y proyectos impulsados por la Presidencia, y representar al I.C.E en diferentes organismos gubernamentales y no gubernamentales, relacionados con el campo de la electricidad y las telecomunicaciones. Asimismo dentro de los proyectos que tuvo a cargo, se destacó el proceso abreviado 1-2002 de arrendamiento de las 400.000 líneas celulares GSM.

130) Desde su ingreso a la institución, el imputado [Nombre001], como asistente de la Presidencia Ejecutiva, pasó a ser el encargado de acelerar lo relacionado al tema de las telecomunicaciones. Posteriormente el imputado [Nombre001] fue nombrado para presidir una comisión de alto nivel integrada por un grupo interdisciplinario de profesionales que tuvo bajo su responsabilidad el estudio y ejecución del proyecto de las 400.000 mil líneas, en conjunto con [Nombre027], miembro del Consejo Directivo y los funcionarios [Nombre061], gerente de la UEN de Servicios Móviles, y [Nombre052] en su calidad de Presidente Ejecutivo.

131) Sin precisarse fecha, pero en el período comprendido entre finales del año 2000 e inicios de 2001, los encartados [Nombre015] y [Nombre035] le solicitaron al imputado [Nombre001] que realizara las acciones necesarias dentro del ámbito de sus funciones como asesor de la Presidencia Ejecutiva del I.C.E., y encargado de la ejecución del proyecto de las 400.000 líneas, para hacer efectiva dicha contratación favoreciendo a Alcatel; a cambio de lo anterior, [Nombre035] y [Nombre015] le prometieron a [Nombre001] la entrega de una dádiva consistente en dinero, cuyo monto exacto no se fijó en ese momento. Dicha promesa fue aceptada por el imputado [Nombre001], se acordó asimismo que la entrega estaría condicionada a la efectiva adjudicación de la oferta que presentaría Alcatel al I.C.E.

132) Por haber cumplido el encartado [Nombre001] con las acciones acordadas, una vez que logró junto con otros funcionarios del I.C.E., que se abriera el concurso para la compra de la telefonía celular y la adjudicación del contrato de las 400.000 líneas GSM a favor de Alcatel, conforme lo pactado con anterioridad con el encartado [Nombre015] y el indiciado [Nombre035], recibió la dádiva prometida correspondiente a un porcentaje del contrato que obtuvo Alcatel con el I.C.E. , pago que fue realizado en forma segmentada por intermediación del coencartado [Nombre009] con el dinero provenientes de Alcatel Cit".

Es a partir de estos hechos que se han tenido por demostrados, que se le atribuye a [Nombre009] la comisión de un delito de penalidad del corruptor por corrupción agravada en la modalidad de cohecho impropio, en relación con [Nombre001]. Como ya se analizó al conocer de los recursos a favor de [Nombre001], no se sabe a ciencia cierta cuáles fueron las supuestas acciones que se le pidieron a [Nombre001] que desplegara con el objetivo de alcanzar los objetivos de Alcatel en el contrato de las 400 mil líneas celulares, por lo que la participación criminal de [Nombre009] en el hecho imputado a [Nombre001] resulta, por lo menos, incierto e improbable. Debe declararse con lugar este motivo. Como se analizó con profusión al conocer de dicho recurso a favor de [Nombre001], el procedimiento de adjudicación fue prístino y conforme a la ley, y la intervención de [Nombre001], por su campo de jurídicos que pudieran tener incidencia final en la concesión de las 400 mil líneas a Alcatel.

De hecho, y como esta Cámara lo analiza con anterioridad, no se sabe qué papel se esperaba desplegara [Nombre001] en relación con el procedimiento de toma de decisión a lo interno del ICE, como tampoco sobre la forma y contenido de un procedimiento abreviado que, en esencia, no era favorable ni brindaba certidumbre a Alcatel. A esta empresa le convenía más, en términos de la certeza de su participación, el procedimiento de compras directas. [Nombre001] tenía a su cargo las funciones de coordinación que no tenían que ver con el proceso de compras directas, y cómo se observó en la sucesión de decisiones del Consejo Directivo del ICE, el camino hacia un procedimiento abreviado vino definido por la Contraloría General de la República y no por el ICE. La aceptación que hizo [Nombre001] de haber recibido dineros de Alcatel no permite determinar, tampoco, si dichas sumas fueron entregadas más bien como pago por un acto propio y concreto de sus funciones.

La incertidumbre al respecto abre una gran cantidad de posibilidades de tipicidad penal que van desde la recepción de dádivas por acto cumplido hasta el propio Enriquecimiento Ilícito, pero no necesariamente a un cohecho impropio. Ese acto concreto que se le pidió a [Nombre001], según lo interpreta el recurrente, no fue señalado de manera clara, precisa y concreta por el tribunal. Si esto es así, y no hay precisión sobre el hecho, también habría duda si [Nombre009] fue responsable del delito de penalidad del corruptor, pues ambos hechos están íntimamente relacionados, y es por ello que por esta razón que se le debe absolver de toda pena y responsabilidad por los hechos que se le atribuyen en relación a [Nombre009]. 4. Comiso a favor del Estado de diversas propiedades. En el tercer motivo por la forma del recurso de casación del licenciado Mario Navarro a favor del imputado [Nombre009], se alega ERRÓNEA E INADECUADA FUNDAMENTACIÓN. VIOLACIÓN AL DEBIDO PROCESO Y AL DERECHO DE DEFENSA POR ERRÓNEA APLICACIÓN DEL ARTÍCULO 110 DEL CÓDIGO PENAL. En la sentencia se decreta comiso de las siguientes propiedades:

A.4) Partido de Heredia inscrita bajo el sistema de Folio Real, Matrícula N° [Valor025], Submatrícula [Valor018] a nombre de la sociedad Punto de Negocios LQC Sociedad Anónima. Sociedad perteneciente al imputado [Nombre009] quien procedió a nutrirla con los dineros ilícitos provenientes de Alcatel Cit, siendo que con esos dineros realizó diversas transacciones bancaria y negocios diferente índole, como la compra de la finca descrita.

• 4)De las acciones de [Nombre009] en la sociedad La Selva de La Marina S.A. propietaria, entre otros, de los inmuebles inscritos en el Registro Público bajo el sistema de Folio Real Matrícula N° [Valor030], Submatrícula [Valor018] y Matrícula N° [Valor031], Submatrícula [Valor018]. Bienes inmuebles que fueron adquiridos con dineros ilícitos que provenían de Alcatel Cit.

Según el recurrente, el tribunal omitió fundamentar y razonar por qué consideraba que estos bienes provenían de la actividad ilícita supuestamente achacada al justiciable. En una palabra, no se demuestra el nexo de causalidad entre la comisión del hecho y los bienes sobre los que recaerá el comiso. De la misma manera, debe haber certeza que sobre dichos bienes no hay algún tercero o el mismo imputado con derechos. Según el impugnante, de los estudios económicos realizados puede desprenderse que sobre los mencionados bienes habría derechos de otras personas:

“…Y es que según indica en su punto 4.4 el informe Pericial N° 202-DEF-445-05/06 (Prueba N° 619) la sociedad Punto de Negocios LQC S.A fue constituida el 08 de abril de 2002 por el imputado [Nombre009] y [Nombre076], ante el Notario [Nombre077]. El capital social se conformó por la suma de un millón de colones representado por cien acciones comunes y nominativas de diez mil colones cada una, de las cuales [Nombre009] suscribió 99 acciones y la socia [Nombre076] una acción. Según certificación notarial de 14:00 horas del 27 de enero de 2003 [Nombre009] ocupa el cargo de Presidente con la representación Judicial y extrajudicial de la sociedad Punto de Negocios LQC, S.A. Sociedad que se encuentra inscrita en la Sección Mercantil del Registro Público al folio 196 del tomo 1497, asiento 98. Ver anexo 13 del informe 202 folio 170.

Y en el punto 4.3.1 del mismo informe, se indica por parte de los peritos de la Sección de Delitos Económicos y Financieros que se corroboró que la Sociedad Selva de La Marina, cédula jurídica N° 3-101- 345347 fue constituida el 5 de mayo de 2003 por [Nombre078] e [Nombre079] ante la Notaría de [Nombre077]. El capital social se estableció en la suma de 50.000.000.00 millones de colones representado por 50.000 acciones de un mil colones cada una, de las cuales el señor [Nombre078] suscribió 4 9.999 acciones de mil colones cada una e [Nombre079] una acción de un mil colones.

Es de la misma prueba incorporada al contradictorio, que fácilmente se desprende que los bienes cuyo comiso está ordenando el Tribunal, se encuentran debidamente inscritos a nombre de sociedades anónimas en las cuales, aparte de mi defendido existen otros "socios" con interés en las mismas. La jurisprudencia y la doctrina han determinado que el Tribunal que disponga el comiso, debe ser "muy cauto y celoso al momento de adoptar tal decisión" con el fin de no afectar los derechos y garantías, no solo del acusado, sino también los de terceras personas ajenas al proceso. Igualmente que, "a fin de no afectar los derechos de todas aquellas personas que no tienen ninguna relación con el ilícito" no basta la mera probabilidad o presunción, sino que "se requiere certeza absoluta, a fin de no violentar los principios que informan el debido proceso, como lo son: el principio de legalidad, de inocencia, de defensa, de juicio justo, de culpabilidad, etc.", según lo ha dispuesto la Sala Tercera de la Corte Suprema de Justicia en sentencia 865-97 de las 10 horas 20 minutos del 22 de algosto de 1997…” En apoyo de su tesis, cita un precedente del Tribunal de Casación, el Voto No. 00377 de las 13 horas 45 minutos del 16 de noviembre de 2010, que sostiene la necesidad de establecer el nexo causal existente entre los bienes sobre los que recae el comiso y la comisión del hecho punible.

En igual sentido, estima, se pronuncia la Sala Tercera de la Corte Suprema de Justicia, cuando en su Voto No. 00121 de 2010, luego de entrar en algunas consideraciones sobre el comiso y su naturaleza jurídica, que su dictado requiere una sólida fundamentación conforme los artículos 142, 143, 363 inciso b) y 369 inciso d) del Código Procesal Penal. Puntualiza que no hay tal solidez en la fundamentación del fallo bajo examen, no se observa cuál fue la argumentación seguida por el Tribunal para decretar el comiso que tanto afecta a los intereses del justiciable como también de terceras personas, que el propio fallo reconoce que las había. El motivo debe declararse con lugar. El Tribunal no explícita la conexión de los bienes que decreta en comiso con la actividad ilícita de [Nombre009], como tampoco si sobre los mismos había derechos de terceras personas. Tampoco hay certeza si con dineros de Alcatel fueron adquiridas dichas propiedades, o si el curso de su adquisición se hizo con otros bienes provenientes de la actividad o giro profesional del justiciable.

Esto último, pues la fuente u origen de la adquisición de estos inmuebles y bienes en general puede provenir de fuentes independientes a las investigadas en la causa. Hay elementos que permiten suponer que había una relación entre Alcatel CIT y Servicios Notariales QC S.A. desde el año 1997, que procedía del desarrollo de actividades contractuales de consultoría que no han sido cuestionados. Las fuentes de adquisición de esos bienes podrían ser, entonces, parte de las actividades lícitas que se desarrollaron en años anteriores al periodo investigado en esta causa. En otras palabras, para poder decretar el comiso, debería de haber una fundamentación adecuada en la sentencia que demuestre que la fuente de adquisición de estos bienes procede de la actividad corruptora que el voto de mayoría achaca a Alcatel y que procede, presuntamente, del plan delictivo desarrollado por [Nombre015] y [Nombre035].

De la misma manera, debe demostrarse que todo el flujo del dinero, o parte de él proviene de delito, y si es así, si esos flujos económicos sirvieron para comprar esos bienes que ahora se comisan. De la misma manera, que tal decreto no afecta los derechos de aquellas personas que no tienen relación con la actividad ilícita. Al respecto, y con razón, apunta el impugnante que había movimientos económicos que llegaron al patrimonio del Bufete Valerio Casafont, y dichos movimientos no fueron calificados de ilícitos, y su fuente fue Servicios Notariales QC S.A. En otras palabras, que lo pagado a este bufete debería reputarse, entonces, una actividad lícita que tiene como fuente de pago, los dineros que administraba Servicios Notariales QC para Alcatel CIT. Además, citar el artículo 110 del Código Penal no es fundamentación suficiente para un comiso de tales proporciones, sin dejar si quiera constancia de la certeza de la procedencia de estos bienes del quehacer delictuoso del justiciable.

La tesis del defensor se sostiene también, con la demostración que se hace de pagos de cuantiosas sumas a Macro Investment o a Tele Investment que proceden también de las cuentas administradas por Servicios Notariales QC S.A., como según se demostró en el juicio con la ayuda de la PRUEBA 619,Informe pericial N° 202-DEF-445-05/06 de la Sección de Delitos Económicos y Financieros del Departamento de Investigaciones Criminales del O.I.J, y sus anexos. Consta de 178 folios y 7 legajos de evidencia: N°1 con 40 folios, N°2 con 437 folios, N°3 con 368 folios, N° 4 con 232 folios, N°5 con 113 folios, N°6 con 192 folios, N°7 con 251 folios. Según el recurrente, con estos elementos se comprueba la totalidad del origen y destino del dinero de Alcatel Cit y entregado por [Nombre009] a favor de los encartados en la causa, pero el Tribunal no se tomó el cuidado de analizar esta prueba, y, obviando que se trataba de dineros privados manejados por la Sociedad Servicios Notariales Q.C. , decretó el comiso de dos bienes, concretamente del PORCENTAJE EN UNA SOCIEDAD DENOMINADA LA SELVA DE LA MARINA y una vivienda perteneciente a PUNTO DE NEGOCIOS LQC S.A., adquirida con dineros que no tienen que ver con EL OBJETO DEL DELITO COHECHO IMPROPIO.

Es por lo anterior, que procede revocar el comiso sobre los bienes descritos y corresponde al respecto ordenar al tribunal competente la devolución de las propiedades y acciones comisadas. 5. Los cuestionamientos sobre los temas derivados de las acciones civiles planteadas en contra del justiciable. El recurrente actuando además en condición de Apoderado Especial Judicial, de LOS DEMANDADOS CIVILES: Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A.; La Selva de la Marina S.A; Servicios Notariales QC S.A., y [Nombre009] en su condición personal, con fundamento en la normativa citada, dentro del mismo plazo legal READECUÓ LA ADHESION YA INTERPUESTA EN SU MOMENTO PROCESAL, a un recurso de apelación, y agregó varios motivos en torno al tema civil de la sentencia. Un primer argumento tiene que ver con la ausencia de motivación en torno al rechazo de la condenatoria en costas en los siguientes términos.

PRIMER MOTIVO DE APELACIÓN SOBRE EL TEMA CIVIL. Ausencia de motivación en torno al rechazo de la condenatoria en costas. Se lesiona lo preceptuado en los numerales 39 y 41 de la Constitución Política, 363 y 369 del Código Procesal Penal. Plantea un segundo motivo, que tiene que ver con que sus representados han tenido que soportar un proceso de siete años, con demandas civiles y embargo de bienes. Así las cosas, no es que no haya habido vencidos ni vencedores, sino que por el contrario hay personas que han tenido que soportar la condición de demandados por un largo periodo de tiempo. Es por ello que exige que debió tener consecuencias el comportamiento de los actores civiles. Rechaza que se pueda hablar de razón plausible para litigar, si nunca se pudo establecer el nexo causal entre los hechos acusados y esas demandas civiles. Se logró comprobar que sus representados no recibieron dineros del ICE o de alguna otra institución pública.

Se trató de dineros privados. Es por ello que solicita se condene a los actores civiles: Instituto Costarricense de Electricidad y Estado a pagar las costas del proceso que llevó a los demandados civiles hasta esta etapa, incluyendo el recurso de apelación. En un tercer motivo, reclama errónea interpretación del numeral 277 del Código Procesal Civil, en torno a la indemnización de daños y perjuicios. Postula sus razones de la siguiente manera:

“…Es criterio de esta representación que la interpretación que le hace el Tribunal de sentencia al numeral 277 del Código Procesal Civil es errónea, y la cita jurisprudencial en la que apoya su tesis resulta indudablemente inadecuada.

Argumenta en esencia la sentencia que por haberse omitido pronunciamiento de fondo en cuanto a las acciones civiles, proceden el levantamiento de los embargos decretados y el rechazo de la condenatoria en daños y perjuicios. Considerando al respecto la posibilidad de las partes de acudir a la vía civil a dirimir sus conflictos. Resultando imposible extender los alcances del numeral 277 citado por vía interpretativa, dado que sería extensiva de una norma punitiva.

En primer término, resulta desafortunada la decisión del Tribunal al brindarle a los actores la probabilidad de acudir a la vía ordinaria, suponemos, en procura de sus intereses. Esa decisión es admisible en tanto la parte actora no haya soportado todo lo que conllevo el proceso civil dentro del proceso penal. El principio procesal de "elección de vía" lo desconoce el Tribunal de sentencia. Los actores decidieron elegir la vía de la acción civil dentro del proceso penal en procura de sus intereses. Tanto es así, que incluso hay recursos de casación pendientes de los actores civiles. Que el Tribunal desechara sus demandas por defectos en las PRETENSIONES, no pueden ser el sustento para remitir a las partes a un reclamo civil posterior. Los actores agotaron la vía del proceso penal para la probable indemnización, que no lo supieran hacer, nos les da derecho a mantenerse legitimados para hacerlo en la vía de ordinaria civil.

Esa interpretación que realiza el Tribunal, verdaderamente si lesiona el numeral 2 del Código Procesal Penal. El Juez conoce el derecho, y bajo esa tesitura, es evidente que el Tribunal está beneficiando a una de las partes del proceso, de forma errónea, por una mala actuación de ellos…” Insiste, la demanda fue DESECHADA DEFINITIVAMENTE EN SENTENCIA y es por ello que se ordenó el levantamiento de los embargos y, en tal caso, procedería la consignación del dinero en efectivo a de los demandados a título de daños y perjuicios, como indemnización fija: ese es el contenido de la norma en cuestión y el espíritu de la misma. Subraya que sus representados han soportado siete años de proceso, con embargos incluidos. Un proceso tortuoso que hubo de esperar al final para conocer en conclusiones las pretensiones de los actores civiles, sobre personas jurídicas y físicas que no tuvieron que ver nada con dineros de carácter público.

Tampoco se pudo establecer el nexo causal entre los demandados civiles y la actuación de los condenados. Cuestiona igualmente que se les abra la puerta a los actores civiles para que acudan a la vía civil a plantear nuevamente sus demandas, a pesar de que ya habían elegido vía para discutir dichos puntos. La demanda civil fue rechazada, salvo lo que resuelva esta cámara al analizar los motivos de casación planteados por los actores civiles. Por lo anterior, solicita que se acoja la apelación por las razones señaladas, se revoque el fallo en tanto RECHAZA la indemnización fija a titulo de daños y perjuicios que regula el numeral 277 del Código Procesal Civil, y que se ordene la devolución al Tribunal Penal de Juicio para que haga los embolsos a los demandados civiles en la proporción que les corresponda conforme a las demandas planteadas. El tema de la condenatoria en costas y el tema de las acciones civiles debe ser dilucidado en un nuevo juicio a este respecto.

Esta Cámara ya se pronunció sobre el tema de las acciones civiles resarcitorias, la ausencia de condenatoria en costas y la interpretación que hace el tribunal de mayoría en torno a este tema, al momento de resolver el recurso de Christian Arguedas a favor del Dr. [Nombre012]. Se consideró que lo resuelto sobre el tema fue una clarísima denegación de acceso a la justicia basado e formalismos que no tienen asidero en el artículo 112 inciso d) del Código Procesal Penal, error que habrá de enmendarse. También habrá de enmendarse la falta de resolución sobre el fondo de las acciones civiles incoadas por el Instituto Costarricense de Electricidad y la Procuraduría General de la República. De igual manera, en un juicio de reenvío habrá de decidirse sobre el tema de costas, y sobre si había o no razón plausible para litigar: el no decidir sobre el fondo de las acciones civiles provocó un error que incide en la definición sobre el tema de costas, lo que sin duda causa agravio a las partes.

Es por ello, que al resolver sobre el recurso del licenciado Arguedas, se consideró que los efectos de su impugnación favorece a los demás codemandados civiles, ya que no se basa en motivos exclusivamente personales. Es por ello que ya se ha anulado la sentencia en su aspecto civil, en cuanto dispuso omitir pronunciamiento en cuanto al derecho de fondo discutido en relación a las acciones civiles interpuestas, así como lo resuelto sobre costas y se ordena el reenvío del proceso al competente para la nueva substanciación de esos extremos.

XI.SE RESUELVE EL RECURSO DE APELACIÓN PLANTEADO POR LOS LICENCIADO ERICK RAMOS Y FEDERICO MORALES A FAVOR DEL ACUSADO [Nombre015].- 1. En cuanto a los cuatro delitos de Penalidad del Corruptor: De los temas propuestos por los licenciados Erick Ramos y Federico Morales, en representación del señor [Nombre015], se ha expresado su disconformidad con la sentencia a través de diversos escritos, el primero de ellos es un recurso de «casación» que se presentó y posteriormente en un recurso de apelación por conversión. Esta Cámara procede a resolver los motivos que por sí solos implican la nulidad de la sentencia y la absolutoria del justiciable por cuatro delitos de PENALIDAD DEL CORRUPTOR, cometidos en perjuicio de la Probidad en el Ejercicio de la Función Pública. Sección Primera.- Vicios que por sí solos implican la nulidad de todo lo resuelto. A. Prescripción de la causa. En el primer motivo por la forma del recurso los licenciados Erick Ramos y Federico Morales alegan violación al debido proceso por haber prescrito la causa.

Indican que en diversas instancias se planteó la excepción de prescripción, y fue rechazada. La razón expuesta por el Tribunal de Mérito para desestimar la prescripción se hizo radicar en la declaratoria de tramitación compleja de la causa que se produjo el 3 de marzo de 2006, considerando los jueces que en virtud de ello no podría aplicar la reducción del término de la prescripción, en virtud de lo dispuesto por el párrafo tercero del artículo 376 de legislación de rito. Según lo expone la defensa, los actos procesales se rigen por la ley vigente en el momento en que ocurren y surten efectos según esta ley. El artículo 376 CPP no le estaría dando ninguna posibilidad a la declaratoria de tramitación compleja de hacer retroactivos sus efectos ni tampoco la de interrumpir la prescripción. Así las cosas, la prescripción de los hechos endilgados a [Nombre080] habría transcurrido en el día 14 del mes de abril del 2007; sin que para ese momento se haya producido alguno de los actos interruptores que establece la ley procesal penal.

Solicitan se acoja el presente Recurso de Casación con base en este motivo y se declare que la acción penal se extinguió por la prescripción el día 14 de abril del 2007. Llevan razón en su reclamo. Plantean los abogados defensores que debió declararse la prescripción de la causa desde que se alegó el tema en el proceso, por haber transcurrido el plazo fatal que hace fenecer la acción penal. A pesar de que en principio resulta claro que la acción penal pública se extinguió en el subjúdice a favor de [Nombre015] y como consecuencia de su prescripción, el Tribunal sentenciador razonó oportunamente y con base en lo que establece el artículo 376 del Código Procesal Penal, el que a grosso modo establece que cuando se ordena la tramitación de la causa como compleja en la etapa de investigación e intermedia no rige la reducción del término de la prescripción a la mitad, según lo que establece el artículo 33 del Código Procesal Penal, en el sentido de que en la especie la declaración de tramitación compleja de la causa evitó que se pudiera resolver favorablemente la pretensión sobre la extinción de la acción penal.

El argumento principal de los recurrentes es que la declaración de tramitación compleja de la causa no viene a modificar los efectos reductores del plazo de prescripción que ya habían operado en su momento a favor de don [Nombre015] en el año 2004. Consta de los autos, sostienen los impugnantes, que [Nombre015] fue indagado por los hechos objeto del presente proceso a las 14:30 horas del día 14 de octubre del año 2004. Por lo anterior el plazo de fenecimiento de la acción penal vencería el 14 de abril del año 2007, dado que el siguiente acto que conforme a la aplicación estricta de la ley suspende la prescripción es el señalamiento de Audiencia Preliminar; el cual en este caso no fue dictado sino hasta el 10 de septiembre del año 2007. Según este punto de partida, con la declaración indagatoria del imputado se habría reducido el plazo de prescripción a la mitad, tal y como lo ordena el Código Procesal Penal.

La declaratoria de tramitación compleja del proceso no podría, entonces, venir a afectar lo que ya se había producido de conformidad con las reglas generales impuestas por la legislación adjetiva. Citan en su favor la doctrina del Prof. Javier Llobet en su obra “Código Procesal Penal Comentado”, quien sostiene que si ya ha operado la reducción del plazo de prescripción a la mitad, esta debería de regir para el resto del proceso, y no que después se diga que dicha reducción no ha operado, pues sería como una especie de “manipulación” del plazo de prescripción, con la aplicación retroactiva de la declaración de complejidad. Ya esta Cámara se había pronunciado en contra de los efectos retroactivos que se le ha dado a la declaratoria de tramitación compleja de la causa. Los razonamientos que apoyan esta conclusión, ya han sido expresados al resolverse el recurso del Dr. [Nombre012], a los que se remite para evitar reiteraciones innecesarias.

Corresponde, entonces, declarar la causa seguida contra [Nombre015] prescrita y absolverle de cuatro delitos de penalidad del corruptor que se le venían atribuyendo. B. Prueba inutilizable (ilícita). El Tribunal utilizó información obtenida de la declaración del coimputado [Nombre026], quien proveyó esa información para la condena al amparo de una ventaja procesal indebida. En el segundo motivo del recurso de la defensa de [Nombre015] se alega la inobservancia y errónea aplicación de la ley procesal, pues se ha utilizado prueba ilícita para condenar a su representado. Consideran que la información proveniente de [Nombre026] se ha generado a partir de un acuerdo con el Ministerio Público que fue construido de manera contraria al debido proceso, pues se aceptó el criterio de oportunidad que lo favoreció irrespetando normativa procesal. Se citan pasajes de la sentencia donde se hace evidente que la información suministrada por [Nombre026] fue eficiente para sostener la convicción:

“… en todo caso, aquí [Nombre009] sí estuvo presente desde su planeación porque debía conocerse previo a las promesas corruptas cómo se pagarían las dádivas y esa era su tarea. Recuérdese que [Nombre026] mencionó que en una de las ocasiones en que él le preguntó sobre Servicios Notariales QC S.A., [Nombre015] le dijo que esa había sido la forma que habían ideado para que todos estuvieran protegidos; es decir que con anticipación a la puesta en marcha del plan ya se conocía la formula para lograr esa protección.” (p. 1157) “Ante este cuadro cabe preguntarse: ¿Si el equipo había sido donado por Alcatel desde 1998 y ello significaba que para el año 1999 y 2000 ya estaba funcionando, por qué no se le autorizó participar en las contrataciones directas donde se tuvo como proveedor a Lucent y Ericsson? ¿Por qué si se contaba con dicho equipo en operación no se había autorizado la participación de Alcatel en la última contratación de las 100.000 líneas celulares?

¿Por qué si se adujo que se requería equipo genuino, compatible con el sistema celular del ICE, entre otras razones, para excluir a Alcatel como oferente ahora sí se le consideraba como adjudicataria directa por contar con equipo genuino, sin sucedáneos, etc.? ¿Por qué ahora si contaba con el respaldo legal y técnico? ¿Qué motivaba ahora a la junta directiva a variar la posición que mantuvo durante años? La única respuesta plausible que encuentra esta integración es porque respecto de los directivos [Nombre004] y [Nombre026] ya se había hecho la promesa remuneratoria, el último así lo indicó y el primero no sólo interviene anteriormente en las citadas sesiones en que se negó la participación de Alcatel, sino que en esta sesión 5271 se manifiesta expresamente apoyando la contratación y justificando su dicho en notas suscritas por [Nombre061] y la Asesoría Legal.” (1164) “La declaración de [Nombre026] es totalmente congruente con la prueba evacuada y aquí resulta relevante (aunque esta referencia ha sido esporádica para las valoraciones hechas en este considerando) para señalar como al momento en que a él se le plantea la propuesta remuneratoria ilegal por parte de [Nombre035] y [Nombre015] (a principios de diciembre de 2001) son tres las peticiones formuladas a cambio de la dádiva: su ayuda para la migración tecnológica, el concurso público y la adjudicación en el supuesto de que dicho concurso se diera.

Las distintas defensas técnicas de los imputados, entre ellas la Licda. Valenciano, el Lic. Navarro, el Lic. Gairaud, el Lic. Ramos, el Lic. Morales y el Lic. Villalobos afirman que tales manifestaciones de [Nombre026] son inverosímiles porque la migración de tecnología se produce en mayo de 2000, aunque el Lic. Navarro asegura que data del año 1998 -sin abundar en explicaciones- y el Lic. Ramos se remonta más atrás en el tiempo, lo cierto es que -en lo fundamental- coinciden al señalar que si la decisión descrita fue anterior a la promesa, carecía de todo sentido lógico que el ofrecimiento tuviera como sostén ese propósito.

No obstante, las aseveraciones de [Nombre026] han sido totalmente ratificadas por este tribunal con base en los elementos de prueba que se especificaran.” (1167) “Por eso es muy revelador el hecho de que cuando existe la amenaza de que se cuestione ese acuerdo [Nombre015] transmite su preocupación a la directiva y le solicita a [Nombre026] que al quererse echar atrás la licitación debe asistir a la sesión 5277. Es decir, [Nombre015] no sólo sabía con antelación que se iba a cuestionar el acuerdo (prueba Nº 630, “carta CD-ICE”, del 8 de marzo de 2001), sino que solicita la intervención de [Nombre026] para evitarlo, conforme éste lo manifestó y se corrobora su participación en el acta de la respectiva sesión donde [Nombre026] habla a favor de mantener la propuesta y donde, de hecho, votan a favor de mantener la contratación [Nombre026], [Nombre052], [Nombre066] y [Nombre004], en tanto [Nombre027] es apoyado por [Nombre067] y [Nombre055], sea que la decisión se toma por una ajustada mayoría.

Esta carta del 8 de marzo de 2001 también refleja que a ese momento la situación para Alcatel en el ICE seguía siendo compleja. [Nombre026] declara que él no fue a la primera sesión del consejo director, pero que ya se había reunido con [Nombre015] y [Nombre035] para ese momento, por eso él habla a favor de compra directa, porque era parte del compromiso asumido para migrar y en efecto así se corrobora que lo hace en la sesión 5277.” (1172) “- Antes de la recepción del dinero, el acusado [Nombre015] comunicaba dicha situación, de manera que la lógica determina que existía comunicación previa y fluida entre [Nombre015] y [Nombre009] para coordinar lo pertinente al extremo que, efectivamente, luego se producía el traslado de fondos, lo cual ocurrió de modo semejante durante reiteradas ocasiones, según lo narró [Nombre026]. En consonancia con lo relatado por [Nombre026] en torno a dicha práctica de [Nombre015], la deponente [Nombre081] explicó que…” (1185) “En cuanto a la intervención de [Nombre035] y [Nombre015], nótese que el propio [Nombre026] señaló que en todas las siete ocasiones en que le fueron transferidos fondos o entregados certificados, [Nombre015] le preguntó sobre la circunstancias para su entrega y en los casos en que fue por transferencia y él le suministro el número de cuenta ahí efectivamente llegó, lo cual revela que [Nombre015] le comunicaba tal información a [Nombre009] como encargado de dicha cuenta, También manifestó [Nombre026] que cuando le preguntó a [Nombre015] quién era SNQC S.A. le respondió que era el sistema que habían ideado para que todos estuvieran protegidos, es decir denotando una participación planeada y conjunta.” (1258) Además, insisten los recurrentes en su libelo, hay un “Considerando” expreso de la sentencia (cfr.

Considerando XI, punto A.) donde los jueces, justifican la utilización de la información introducida por [Nombre026]. Acompañan su alegato con una descripción de circunstancias y momentos procesales que demuestran su aserto:

“…Descripción de Actuaciones Procesales PRIMERO: En fecha 31 de enero del 2006, quien figuró como coimputado colaborador dentro del debate, el señor [Nombre026], su defensor de confianza EWALD ACUÑA BLANCO, los fiscales auxiliares CRISS GONZÁLEZ UGALDE y CARLOS MORALES CHINCHILLA, así como el Fiscal Adjunto WARNER MOLINA RUÍZ, suscribieron un acuerdo para la aplicación de un criterio de oportunidad, según lo que establece la disposición del artículo 22 inciso b) del Código Procesal Penal (así consta de la prueba 776, legítimamente incorporada en su oportunidad al Debate) En igual sentido véase lo que se consigna en el fallo objetado al folio 1653.

SEGUNDO: En correspondencia con dicho acuerdo, el Ministerio Público se comprometió a solicitar a favor del imputado colaborador [Nombre026] que se prescinda totalmente de su persecución en la causa 04-006835-647-PE. Lo anterior condicionado a que el imputado colaborador [Nombre026] rindiera en juicio -tal y como ocurrió efectivamente- una declaración similar a la vertida oportunamente ante el Ministerio Público y que constituye el ANEXO del criterio de oportunidad mencionado. Asimismo, a que dicha declaración no sea desvirtuada por otros elementos probatorios que la hagan parecer falsa. Y se condicionó también la gestión fiscal a que la información que suministre [Nombre026] permita acreditar en juicio la participación -entre otros- de los imputados en esta misma causa [Nombre015], [Nombre035], [Nombre012] y [Nombre018].

TERCERO: Para la materialización del referido acuerdo el Ministerio Público, representado en ese acto por las Fiscalas Marcela Morera Molina y Amelia Robinson Molina, gestionó en memorial de fecha 30 de mayo del 2007, ante el Juzgado Penal de la Etapa Intermedia del Segundo Circuito Judicial de San José, la aplicación de criterio de oportunidad por colaboración. En dicho memorial (que entendemos también forma parte de la prueba 776) la Fiscalía incluye en el apartado denominado Relación de los Hechos, siguiendo la enumeración del 1 hasta el 116, una serie de hechos y actuaciones que constituyen, supuestamente, el objeto de la investigación. Lo anterior así lo afirmamos porque en el folio 1 del referido memorial la Fiscalía consigna: “Producto de esa investigación se tienen por establecidos los hechos que se describen de seguido.” De donde se desprende que son tales los hechos que se investigan en la causa 04-6835-647-PE.

CUARTO: De igual manera, consta también en el Legajo de Aplicación del Criterio de Oportunidad el memorial de fecha 1 de febrero del 2006, en el que el Licenciado Warner Molina Ruiz, en condición de Fiscal Adjunto, autoriza la aplicación del criterio de oportunidad conforme al inciso b) del artículo 22 del Código Procesal Penal a favor del imputado [Nombre026]. En dicho documento el señor Fiscal Adjunto hace referencia de manera sintética a los hechos objeto de la investigación en dicha causa (concretamente a los folios 2 y 3 -folios 33 y 34 del Legajo- y al folio 8 -39 del Legajo) QUINTO: Las gestiones referidas determinaron el dictado de la resolución de las 9:51 horas del 1º de junio del 2007, suscrita por la Licenciada Ana Gabriela Sánchez Arroyo, en condición de Jueza Penal del Segundo Circuito Judicial de San José. Dicha resolución hace referencia a los datos generales de identificación de la causa y, de seguido, establece en un Considerando I, denominado Relación de Hechos, exactamente lo mismo que la Fiscalía describe en el apartado con el mismo nombre, del punto 1) al punto 116) En el Considerando II se indica que la gestión promovida por las Fiscalas Marcela Morera Molina y Amelia Robinson Molina cuenta con el visto bueno del Fiscal Adjunto.

Posteriormente se incluye un Considerando III denominado Sobre el Fondo, en el que la Juzgadora señala cuál es la naturaleza del criterio de oportunidad solicitado y hace un examen de los requisitos legales para su procedencia. Como la resolución carece prácticamente por completo de fundamentación debida, basta con señalar que la misma refiere, como hechos o conductas apreciadas y valoradas para la determinación de la mayor reprochabilidad, la conducta de [Nombre026] y la conducta de [Nombre012]. Adicionalmente, hace referencia la decisión jurisdiccional a los hechos investigados en esta causa con relación a [Nombre015], [Nombre035], [Nombre018] y [Nombre012], los cuales están claramente vinculados con la contratación de las 400 mil líneas de telefonía celular de la que se conoció ampliamente en el juicio oral y público que precedió al dictado de la Sentencia que ahora se impugna…”. Según la tesis de los impugnantes, la información que debe recibir la autoridad jurisdiccional debe ser completa, en especial, sobre los temas objeto de la investigación, para que pueda ejercer de manera efectiva su contralor sobre la actividad del Ministerio Público.

Esto último, especialmente, en la ponderación de la menor reprochabilidad del colaborador eficaz. Dicha ponderación de la “menor reprochabilidad”, sugieren los defensores, se ha escogido realizar a partir de la comparación de las conductas acusadas. Según ello, el marco fáctico proporcionado por la representación fiscal a la Licenciada Ana Gabriela Sánchez Arroyo en el memorial de fecha 30 de mayo del 2007, por medio del cual solicitó la aplicación del criterio de oportunidad por colaboración a favor del imputado colaborador [Nombre026], no correspondía completamente al que efectivamente estaba siendo investigado en ese momento. Por ello, la conducta de [Nombre026] no pudo ser valorada con toda la información disponible en la Fiscalía. En consecuencia, la conducta del colaborador que pudo ser evaluada por la autoridad jurisdiccional a partir de la información que surge de la relación de hechos que le proporcionara la Fiscalía, no es la misma conducta que podía determinarse con base en toda la información con la que verdaderamente a ese momento se contaba como consecuencia de la investigación en manos de la Fiscalía.

Había información de parte de [Nombre026] de su involucramiento en otros actos y contratos del ICE relacionados con el tema de las líneas telefónicas y la recepción de pagos indebidos por actos propios de sus funciones como funcionario público. Informan los recurrentes lo siguiente: “…En efecto, para ese momento de la investigación ya se habían agregado al legajo respectivo sendas declaraciones vertidas por el coimputado [Nombre026], así como varias Investigación Judicial; entre otras, el Informe 297-DEF-540-04/05 en el cual, en el punto identificado como 4.8 punto 12., se establece lo siguiente:

“Por último, se refirió el cheque No 49-1 por U.S. $46.000.00, girado por Holding de Valores y Capitales, S. A., el 26 de mayo del 2003, a nombre de la señora [Nombre082], el cual dijo haber recibido de [Nombre018], supuestamente, por gestiones de cobro que había realizado ante ALCATEL, a solicitud tanto de este último, como de [Nombre012].

En este punto valga comentar, que en otras de sus declaraciones, [Nombre026] se había referido brevemente a otras sumas de dinero recibidas de [Nombre018]: un cheque por U.S.$4,000.00 y un certificado por U.S.$9.062.50. Asimismo, mencionó otras regalías por U.S.$110.207.00 y U.S.$29,833.95, recibidas de CIBERTC, S. A., y Empaques Asépticos, S. A., a través de [Nombre027].” Asimismo, el mencionado informe señala en el punto 5.11 que, aunque [Nombre026] sostuvo que el premio que recibiría oscilaría entre 1.5% y el 2% del total del contrato de las 400.000 líneas para celulares, menos los gastos, se concluye en la experticia que parte de las sumas trasladadas por Servicios Notariales Q.C., S. A., a [Nombre026] se relacionaba también con otros contratos suscritos por el ICE, para la compra de centrales fijas ALCATEL.

Es importante destacar -siguiendo esta misma línea de exposición- que [Nombre026] habría declarado en el mes de setiembre del 2004 que recibió pagos indebidos por su participación como Directivo del ICE en la aprobación de la concesión del Proyecto Hidroeléctrico La Joya. También en el mes de octubre del 2004, [Nombre026] confiesa ante la Fiscalía haber recibido dineros o pagos indebidos con relación a la empresa Teletec y Empaques Asépticos. En el mes de noviembre del 2004 declaró también sobre la recepción de ciertos dineros indebidos. Asimismo, en mayo del 2005 manifestó haber recibido dineros de Holding y Valores correspondientes a pagos por actos indebidos ligados con el ejercicio del cargo de funcionario público.

Es claro, entonces, que para la fecha en que se gestiona por la Fiscalía ante el Juzgado Penal de la Etapa Intermedia del Segundo Circuito Judicial de San José, la aplicación a favor de [Nombre026] del criterio de oportunidad por colaboración la representación del Ministerio Público tenía información suficiente que le permitía conocer cabalmente acerca de la posible participación del imputado colaborador [Nombre026] en otros hechos delictivos diferentes a los vinculados con el contrato de las 400 mil líneas celulares No obstante, esta información, referida a hechos distintos a los directamente vinculados con el contrato de las 400 mil líneas, se ocultó a la Juzgadora. Esta aseveración encuentra su respaldo en la lectura de la relación de hechos contenida en la solicitud promovida por la Fiscalía para que se apruebe el criterio de oportunidad negociado con [Nombre026], así como en la propia relación de hechos que contiene la resolución dictada el 1º de junio del 2007, que aprueba el mencionado instituto.

Consideramos legítimo afirmar que los otros hechos mencionados en los que participa [Nombre026] distintos a los relacionados con el mencionado contrato del ICE no fueron informados como correspondía a la autoridad jurisdiccional…” Además, en el propio debate, y con informaciones que se hicieron públicas a los medios de prensa, pudieron los impugnantes darse cuenta que el objeto del convenio con el Ministerio Público y el coimputado [Nombre026] lo sería sobre hechos diversos al contrato de adjudicación de las 400 mil líneas celulares a la Empresa ALCATEL. Citan en sustento de lo afirmado, las palabras expresadas por la Fiscal Maribel Bustillo en el memorial de fecha 25 de julio del 2008, el cual, junto con la resolución de las 13:40 horas del 18 de mayo del 2009 aparecen agregados al expediente 08-000032-615-PE, que solicitan ad effectum videndi, quien indicó:

“En el acuerdo en mención puede observarse, el Ministerio Público en el ejercicio de sus facultades conferidas, se compromete a solicitar a favor de [Nombre026], se prescinda de la persecución penal, no solo del hecho referido al dinero indebidamente recibido por parte de la empresa Alcatel con ocasión de la contratación por parte del Instituto Costarricense de Electricidad de las cuatrocientas mil líneas móviles de tecnología GSM, sino de la totalidad de la persecución penal por la causa No. 04-006835-647-PE que abarca este y los otros hechos que el denunciante menciona, pues todos forman parte de la investigación con el número único indicado, tan es así, que el imputado fue indagado por todos esos hechos y mucho antes de la aplicación de este acuerdo, en fecha 30 de setiembre del 2004.” Insisten los recurrentes, que de este documento se desprende que el objeto de negociación entre el Ministerio Público y [Nombre026] lo fue la prescindencia del ejercicio de la acción penal con relación a TODOS los hechos conocidos e investigados por la Fiscalía al momento de esa negociación, es decir al 31 de enero de 2004.

No obstante, cuando se solicita la autorización jurisdiccional para la aplicación del criterio de oportunidad se omite informar acerca de los hechos bajo investigación en el Los licenciados Ramos y Morales subrayan que, entonces, la gestión fiscal incluía otros hechos adicionales a los que se describieron en la relación de hechos originalmente proporcionada por la representación fiscal. Esta actuación sería contraria a los requisitos constitucionales y legales, pues debió informar al órgano judicial sobre cuáles hechos realmente estaba llegando a un convenio con el justiciable [Nombre026]. Así las cosas, la información incompleta provocaría una actividad procesal defectuosa que fue la base para aprobar el criterio de oportunidad que favoreció a este imputado, y que fue contrario a lo expresamente indicado por el artículo 96 del Código Procesal Penal. De la misma manera, la decisión jurisdiccional contenida en la resolución de las 13:30 horas del 2 de setiembre del 2010 emitida interlocutoriamente durante el Debate que causó la Sentencia que se impugna, la cual legitimó por decisión de mayoría de introducir la declaración en juicio del encartado [Nombre026], resultaría también insostenible. Transcriben un tramo de la sentencia donde se justifica la introducción de lo depuesto por este coimputado:

“El acuerdo ha sido cuestionado por las defensas técnicas de los encartados porque permite la impunidad a [Nombre026] por otros delitos cometidos; no obstante, en el acuerdo descrito literalmente se expresa que el Ministerio Público se compromete a solicitar a favor del imputado [Nombre026]: "se prescinda en forma total de la persecución penal en la causa arriba indicada" y en el encabezado del documento menciona "Enriquecimiento ilícito y otros", prueba Nº 776. En la solicitud de aplicación del criterio de oportunidad se incluye una relación de hechos sobre la adjudicación de las 400.000 líneas celulares a la empresa Alcatel y al folio 28 consta que la calificación legal dada a los hechos descritos es un delito de cohecho propio y un delito de corrupción agravada por cohecho impropio en contra de [Nombre026]. En la resolución de la jueza penal de las 9:51 hora del 1º de junio de 2007 que autoriza la aplicación del criterio de oportunidad, previa transcripción de la relación de hechos descrita y otras valoraciones, se indica que es por el delito de Enriquecimiento ilícito en perjuicio del Instituto Costarricense de Electricidad.

No obstante, independientemente de las señaladas denominaciones jurídicas, lo que realmente interesa para efectos de la decisión definitiva de esa gestión por parte del órgano jurisdiccional competente y según el artículo 23 párrafo segundo del Código Procesal Penal, es el fundamento fáctico contenido en la solicitud y la resolución.

De ahí que no le asista razón a las defensas técnicas de los encartados cuando aducen que la Fiscalía engañó a la jueza penal al favorecer con la impunidad a [Nombre026] por delitos no comprendidos en la gestión. El tema de otros presuntos delitos atribuidos a [Nombre026] es totalmente ajeno a este tribunal porque, amén de asistirle el principio de inocencia en cuanto a ellos -al igual que a cualquier otra persona sospechosa de la comisión de un delito-, este proceso no es para juzgar a [Nombre026], ni tampoco para valorar otras eventuales conductas ilícitas atribuidas a él. En esta causa lo único que interesa es la intervención de [Nombre026] en hechos relacionados con cada uno de imputados respecto de quienes versa su colaboración y quienes son acusados en este proceso. Con todo, ¿Cómo podría el Ministerio Público engañar a la jueza penal si los delitos por los cuales gestiona el criterio de oportunidad son los relacionados con los hechos de la solicitud?

¿Si el artículo 23 párrafo segundo del Código Procesal Penal señala que la prescindencia de la persecución deberá valorarla el juzgado penal "en relación con los hechos o las personas en cuyo favor se aplicó el criterio de oportunidad", cómo podrían comprenderse otras delincuencias? También objeta el Lic. Gairaud el criterio de oportunidad argumentando que la acción penal de los delitos no incluidos en tal gestión habría alcanzado la prescripción y, aunque este razonamiento resulta contradictorio o confuso respecto del sostenido anteriormente, en todo caso, se reitera que en este proceso exclusivamente interesa el aporte probatorio de [Nombre026] en el juzgamiento de los imputados [Nombre012], [Nombre015] y [Nombre018].

También ha sostenido [Nombre026] que desde su primera declaración estuvo anuente a que investigaran sus cuentas bancarias, sus tarjetas, llamadas telefónicas y ofreció lo que estaba a su alcance para la investigación, mostrando similar actitud tanto su esposa como su madre, apreciándose que a folio 434 del Tomo II consta su autorización del 5 de octubre de 2004 para que se entregara copia de todos los documentos relacionados con sus cuentas corrientes a los representantes de la Fiscalía, procediendo en similar sentido la señora [Nombre082], según consta al folio 432 del Tomo II. Igualmente desde el 12 de octubre de 2004, procede a la entrega del certificado Nº [Valor051] por la suma de $1.401.241.36, según se infiere de los documentos de folios 462 a 465…” …examen riguroso del contenido de su versión y eventual incidencia de las señaladas circunstancias Aunque el particular y riguroso examen de las manifestaciones de [Nombre026] se hará en cada ocasión que se utilice su versión como soporte probatorio, de antemano cabe señalar que el recuento de circunstancias antes efectuado permite establecer que:

• i)La primera declaración de [Nombre026] ocurre el 30 de setiembre de 2004, folios 127 a 136, Tomo I, y ya para el 5 de octubre de 2004 (folio 434) el imputado colaborador estaba autorizando la apertura de sus cuentas corrientes y obtención de documentación bancaria, por lo que es evidente su finalidad de colaborar con la Administración de Justicia.
• ii)El 12 de octubre de 2004 [Nombre026] da muestras de su intencionalidad de compensar parte del daño causado cuando procede a la entrega al Juzgado Penal de este Circuito Judicial del certificado Nº [Valor051] por la suma de $1.401.241.36.
• iii)El 9 de mayo del año 2005, 8 meses después de iniciada la causa, [Nombre026] conviene con el Ministerio Público la aplicación de un procedimiento abreviado comprometiéndose a aceptar su responsabilidad por los hechos, descontar una sanción de 4 años de prisión sin beneficio alguno y rendir su declaración en juicio, así como el pago de las sumas indicadas a la Procuraduría General de la República y al Instituto Costarricense de Electricidad y la entrega de dos carros. Y contrario a lo dicho por la defensa de [Nombre012], se advierte que a ese momento no se cumplían las condiciones para que [Nombre026] se hiciera acreedor al beneficio del artículo 55 del Código Penal, aparte de que tal posibilidad tampoco fue negociada con el Ministerio Público, ni está en el ámbito de sus competencias autorización de ese carácter. Además, por el quantum de la pena, de conformidad con el artículo 59 del Código Penal, [Nombre026] efectivamente hubiera tenido que descontar dicha sanción pues no cabría el beneficio de ejecución condicional de la sanción.

Y por último, si el acuerdo para la suscripción del procedimiento abreviado implicaba la imposición de la pena descrita y comparecer al debate a rendir su declaración, asumiendo hipotéticamente que dicho procedimiento hubiera sido autorizado por el tribunal competente ¿Que hubiera motivado a [Nombre026] a comparecer a juicio a rendir su declaración si debía descontar la pena de 4 años de prisión? Es decir, si su propósito al venir al debate, según la defensa, ha sido quedar impune ¿Por qué en aquel primer momento [Nombre026] aceptó esta misma condición a cambio de descontar una sanción de 4 años de prisión? Definitivamente la argumentación descrita carece de toda lógica.

• iv)El citado procedimiento abreviado no se pudo concretar ante la negativa de los querellantes [Nombre083] y [Nombre084], quienes no sólo generaron suspicacias en la jueza de apelación sobre su interés legítimo para querellar, sino para querellar contra uno de los declarantes respecto de la acción delictiva de [Nombre012], último que había otorgado autorización a [Nombre083] para estar presente en una audiencia privada donde él compareció, así como por constar las visitas de [Nombre083] durante el arresto domiciliario de [Nombre012]. Situación que aparte de generar sospechas sobre los verdaderos fundamentos del ejercicio de la acción penal por parte de [Nombre083] y [Nombre084], dada la vinculación del primero con el encartado [Nombre012], en todo caso y -para lo que aquí más interesa- lo cierto es que, paradójicamente, fue en virtud de la negativa de tales querellantes a que se pactara y concretara el abreviado que, finalmente, [Nombre026] legalmente se vio imposibilitado para aceptar los cargos y hacerse acreedor de la pena privativa de 4 años de prisión que había acordado con la Fiscalía.

De ahí lo falaz del argumento de las defensas técnicas de los imputados, de que [Nombre026] fue beneficiado por la Fiscalía con el criterio de oportunidad para que, a cambio de su impunidad, "hundiera" a los acusados pues si quedó impune, entendiendo esto como la falta de sanción penal, ello se debió a las gestiones efectuadas por los allegados a [Nombre012]. Es decir, si los hechos cuya responsabilidad ha admitido [Nombre026] quedan impunes es por la negativa de [Nombre083] y [Nombre084] de admitir la aplicación del abreviado, no porque la Fiscalía, de buenas a primeras, "chantajeara" a [Nombre026] con el criterio de oportunidad para que compareciera a declarar a este debate, aparte de que esta condición ya la había aceptado sin que se le ofreciera el señalado instituto. Hay otro aspecto que merece ser tratado y es el sugerido favoritismo que el Ministerio Público mostró respecto de [Nombre026], observándose que otros imputados en esta causa se sometieron a similares procedimientos y concretamente el ex-director del I.C.E. [Nombre027] y [Nombre064], a cargo de Intelmar S.A., convinieron con la Fiscalía la imposición de penas de 3 años de prisión, otorgándose a cada uno el beneficio de ejecución condicional.

En consecuencia, ¿qué trato preferencial existe cuando, de acceder al abreviado, a [Nombre026] se le aplicaría una pena de 4 años de prisión sin ejecución condicional? Además, cuestiona el voto de minoría que se le hubiera permitido a [Nombre026] un provecho económico de 2 millones y medio de dólares supuestamente procedente de dádivas recibidas y que conservara un millón de dólares todo a cambio de su declaración, sin que entienda esta integración mayoritaria a partir de qué elemento probatorio o cuál inferencia le permite a la posición minoritaria hacer esa afirmación. Pero, dejándola de lado, lo que sí revela el elenco probatorio es que con abreviado, o sin abreviado, con criterio de oportunidad, o sin criterio de oportunidad, desde el 12 de octubre de 2004 [Nombre026] entregó al Juzgado Penal de este Circuito Judicial el certificado Nº [Valor051] por la suma de $1.401.241.36. Las reglas de la lógica señalan a este tribunal que si [Nombre026] quería dejarse algún dinero a cambio de su impunidad, no hubiera entregado la suma descrita cuando ni siquiera había negociado esa posibilidad y que si el Ministerio Público -según la dinámica insinuada- quería compensarlo con la suma que no entregó para que declarara, entonces igual hubiera querido "compensarlo" cuando, por esa misma suma, convino con él la aplicación del procedimiento abreviado y la imposición de una pena de 4 años de prisión.

Y entonces habría que afirmar, también, que el Ministerio Público quiso "compensar" a [Nombre064] cuando éste sólo devolvió $100.000, a pesar de que se comprobó que recibió más de $1.000.000; pero seguramente no quiso el Ministerio Público "compensar" a [Nombre027] cuando negoció con él el abreviado y la devolución de más de $1.000.000. Por el contrario, todo lo anterior refleja que la representación de la Fiscalía no sujetó la negociación con los imputados descritos, ni tampoco con el colaborador, a la devolución exacta del monto del cual se beneficiaron.

• v)El acuerdo entre [Nombre026] y los representantes del Ministerio Público para la aplicación del criterio de oportunidad ocurre el 31 de enero de 2006 y mediante su suscripción, un año y varios meses después de iniciado este proceso penal, nuevamente (porque ya había asumido similar compromiso con el abreviado) [Nombre026] se obliga a comparecer a juicio a declarar.

Es por todo lo anterior que, en resumen, se puede afirmar que no fue como consecuencia del criterio de oportunidad, ni a cambio de su impunidad, que [Nombre026] concurrió a este debate a rendir su declaración; y que cuando a [Nombre026] se le pregunta por qué acepta comparecer a rendir su declaración y éste responde que quiere asumir públicamente la responsabilidad por sus actos, este tribunal considera que sus manifestaciones son totalmente creíbles y desinteresadas pues no fue al amparo del criterio de oportunidad que gestó tal iniciativa, sino que ello ocurrió muchos meses antes del otorgamiento de ese mecanismo, e, incluso, cuando primero agotó otra posibilidad más gravosa para su persona.

Ya se ha dicho que la valoración específica de las aseveraciones de [Nombre026] se hará en los supuestos en que se produzca dicho aporte; no obstante, debido a que las defensas técnicas de [Nombre001], [Nombre004], [Nombre012], [Nombre015] y [Nombre018], objetan su credibilidad con alusión a aspectos comunes y generales, merece referirse a ellos. Alegan que el hecho de que [Nombre026] se abstuviera de responder a cuestionamientos formulados por los abogados de los encartados [Nombre012], [Nombre015] y [Nombre021], resta credibilidad a su relato. No obstante, en consideración de este tribunal el citado comportamiento de [Nombre026] no incide en la credibilidad otorgada a su narración pues, en esos supuestos en que omitió responder a las preguntas, lo hizo por varias razones pero con un único basamento, ya sea porque se le interrogó sobre hechos auto incriminatorios en los cuales le asistía el derecho de abstención, o porque se le preguntó por hechos ajenos a los acusados. En uno u otro caso tal proceder derivó del apercibimiento que le hiciera el tribunal antes de rendir su declaración en la primera audiencia del 8 de setiembre de 2010. Tanto en ese momento como mediante resolución de las 13:30 horas del 2 de setiembre de 2010, se indicó:

"...se mantiene la decisión de este órgano para que, en condición de imputado colaborador, se presente a rendir declaración [Nombre026], a quien se le informará: i) de sus derechos a no declarar en su contra y de abstenerse de rendir declaración sobre los hechos, sin que su silencio lo afecte; ii) de su derecho a contar con la asistencia de abogado de su elección y comunicarse libre y privadamente con él; y iii) en el caso de que opte por declarar, se le apercibirá de que todo cuanto diga podría eventualmente utilizarse en su contra, así como de su derecho de expresar lo que considere conveniente y esté relacionado con los hechos acusados, pudiendo las partes y el tribunal formularle preguntas sin limitaciones temáticas, salvo por la forma, pertinencia y utilidad, y quedando a su decisión responder a ellas." (la negrilla es suplida) La referida prevención, para lo que interesa, la realizó el tribunal con fundamento en el numeral 326 en relación con el principio de correlación previsto por el articulo 365 ambos del Código Procesal Penal.

El primero establece que el juicio aparte de ser la fase esencial del proceso, se realiza sobre la base de la acusación, la cual -conforme al señalado principio- determina el contenido del fallo. Con otras palabras, en razón de que el tribunal estaba legalmente impedido para escuchar hechos ilícitos diversos de los acusados, se le indicó, expresamente que, en caso de que optara por declarar, tendría derecho de expresar lo que considerara conveniente siempre que estuviera relacionado con éstos. De manera que su negativa para referirse a circunstancias no contenidas en la acusación y eventualmente auto incriminatorias en nada mina su credibilidad.

En consecuencia, tampoco podría aducirse que opera acá una colisión de derechos de defensa del imputado colaborador y de los encartados dado que lo que tiene prevalencia acá es la delimitación del debate y la actividad probatoria sobre la base de la acusación. No hay violación al derecho de defensa de los encartados porque no es con base en hechos presuntamente cometidos por un tercero que se les responsabiliza, sino por los propios, sobre los cuales tuvieron amplia posibilidad de interrogar y de obtener respuesta por parte del colaborador; aparte de que tampoco era lo fundamental la tutela del derecho de abstención de [Nombre026] cuando de por sí, sobre tales eventos, no tendría competencia este tribunal para condenarlo aunque los reconociera o para absolverlo si los negara. Simplemente eran situaciones fácticas que no motivaron su comparecencia al juicio, que no interesaban en este proceso, por más que estos sí interesaran a las partes.” (Ver Considerando XI, p.1654 a 1660) Se plantea, entonces, que el Tribunal de Juicio decidió actuar de conformidad con su criterio, no declarar la actividad procesal defectuosa generada por el actuar omiso del Ministerio Público, y permitir que [Nombre026] depusiera considerando innecesario determinar si efectivamente la acción penal pública que debió ejercitarse con relación a todos los hechos delictivos cometidos y atribuibles a [Nombre026] fue ilegítimamente abandonada por la Fiscalía a partir de los efectos propios del criterio de oportunidad indebidamente otorgado en el subjúdice.

La condena de [Nombre015] resultó esencialmente de la información brindada por este elemento probatorio contrario a derecho (la declaración de [Nombre026]). Agregan, el voto de minoría sostenido por el Juez Camacho Morales en la Sentencia que se impugna, sería un elemento adicional que da sostén a estos argumentos, resumen los aspectos principales derivados de los razonamientos del voto disidente de la siguiente forma:

“…1. Solicitud incompleta formulada por la Fiscalía para que la Jueza aprobara la aplicación del criterio de oportunidad en el caso concreto y en los términos que señala el artículo 22 inciso b) del Código Procesal Penal; 2. Resolución jurisdiccional carente de fundamento debido que aprueba la aplicación del criterio de oportunidad y justifica la declaración en juicio de [Nombre026]; 3. Declaración rendida en juicio por el coimputado [Nombre026] indebidamente amparada en la promesa de una ventaja procesal jurídicamente imposible de prohijar.

4. Utilización de información proveniente exclusivamente de prueba ilícita para fundar esencialmente el marco fáctico utilizado para condenar -entre otros- a [Nombre015].

Estima esta representación que a partir de lo anterior se impone:

1. Declarar con lugar el presente Recurso de Casación con base en este primer motivo de casación; 2. Declarar que la solicitud de aplicación del criterio de oportunidad contenida en el memorial de folio 1 y siguientes del Legajo respectivo (prueba 776) constituye una actuación procesal defectuosa; 3. Declarar ilegítima, por sostenerse esencialmente en actos procesales defectuosamente verificados, la resolución de las 9:51 horas del 1º de junio del 2007, dictada por el Juzgado Penal de la Etapa Intermedia del Segundo Circuito Judicial de San José, suscrita por la Licenciada Ana Gabriela Sánchez Arroyo; 4. Dimensionar los efectos de tales declaraciones y disponer también que la resolución de las 13:30 horas del 2 de setiembre del 2010 dictada por este Tribunal es ilegítima, en cuanto ordenó la producción de la declaración de [Nombre026] en juicio (la que se materializó en días posteriores) toda vez que la misma se basó esencialmente en el supuesto consistente en que la resolución jurisdiccional mencionada en el punto anterior era legítima; 5.

Deberá declararse que no formaba parte del material utilizable para fundar la Sentencia objetada la información proveniente de la declaración rendida en el juicio por el coimputado colaborador [Nombre026]…” Con base en los razonamientos dichos, solicitan que la sentencia recurrida mediante este motivo de apelación se anule por ser fruto de una actividad procesal defectuosa, medida que debe adoptarse inmediatamente, estiman los impugnantes, para sanear el proceso y eliminar los efectos nocivos provenientes de esa actividad ilícita. Llevan razón en su reclamo y el motivo debe declararse con lugar. Esta Cámara ha expresado una serie de argumentos que avalan la tesis de la defensa, al resolver el recurso planteado por el Dr. [Nombre012], no sólo desde el punto de vista del criterio de oportunidad reglado aplicado en la especie, como de las consecuencias procesales y fácticas implícitas en la utilización de la declaración de un “imputado colaborador”, quien en su declaración hace un cálculo a partir de las ventajas procesales y punitivas que se le han ofrecido y la información que proveerá para obtenerlas.

Se refiere a este acápite de la resolución para evitar reiteraciones innecesarias. No obstante, cabe señalar que abundante material bibliográfico, demuestra el escepticismo y reserva que genera en la doctrina nacional e internacional la utilización de este tipo de testimonios en el proceso, y la necesidad sentida de que los jueces analicen críticamente su deposición con las reglas del correcto entendimiento humano, de la lógica y de la psicología, en esencia, con suspicacia, con el fin de que la información que provee no se convierta en el único elemento para la condena de un justiciable. Esta Cámara también analizó, con detalle, que el voto disidente del Juez Camacho valoró ampliamente las inconveniencias de utilizar su testimonio, no sólo por los vicios que se habían observado ante la inexistencia de un efectivo control jurisdiccional en la aplicación del instituto producto de la omisión de información que ha sido alegada por los recurrentes y que tuvo como consecuencia final: la admisión de la utilización del criterio de oportunidad a favor de [Nombre026].

En esencia, los detalles de lo declarado por [Nombre026], y que se han incluido en los hechos número 84 a 94, involucran no sólo a [Nombre012] sino también a [Nombre015], no sólo por la conversación en el restaurante “[...]” donde supuestamente se le ofrecieron dádivas a [Nombre026] para que interviniera en las decisiones sobre la licitación de las cuatrocientas mil líneas telefónicas, sino también porque se ubica a [Nombre015] en una actuación idónea para lograr que [Nombre026] se convirtiera en una ficha eficaz a favor de los intereses de la multinacional Alcatel. Junto a ello, en el folio 1157 del fallo, se introduce lo mencionado por [Nombre026] sobre el supuesto medio en que se pagarían las dádivas, y que [Nombre015] le había informado que se haría a través de Servicios Notariales QC S.A. como un medio para estar más protegidos. De la misma manera, la convicción del tribunal sobre la forma en que se cambió el punto de vista sobre la tecnología GSM se hace recaer en que tanto [Nombre026] como [Nombre004] ya habían recibido promesas remuneratorias, tal y como lo expresó [Nombre026] (folio 1164).

El Tribunal de mayoría encontró, adicionalmente, que todo lo expuesto por [Nombre026] era confiable y, además, congruente con la prueba evacuada. En cuanto a lo que a [Nombre015] interesa, entiende el tribunal que [Nombre035] y [Nombre015] le piden a [Nombre026] que les ayude para alcanzar la migración tecnológica, se logre el concurso público y que en él se alcance la adjudicación a Alcatel, en el caso de que dicho concurso público tuviera lugar (folio 1167). Al respecto de ello, el tribunal de mayoría considera que hay una sucesión lógica de eventos: primero, alcanzar la migración tecnológica, luego el concurso público y, finalmente, la adjudicación última, que implicaba la satisfacción total de los intereses comerciales de Alcatel. Por ello, conecta lo dicho por [Nombre026] con los emprendimientos de [Nombre015], sobre todo ante el ofrecimiento de este último al ICE de una propuesta comercial que implica la donación de equipo en el año 1998 y la compra directa.

La propuesta se presentó en sesión del Consejo Directivo No. 5268 del 2 de febrero de 2001. Incluso el tribunal considera que a [Nombre015] no le bastaba con haber “comprado” a dos funcionarios, pues este ya sabía que había suspicacias del ente contralor para aprobar la compra directa de 160 mil líneas, en virtud de la sospecha de que mediaban intereses distintos a los de la Administración (folio 1168). Y es por ello, que el tribunal supone, teoriza, que Alcatel solo debía cumplir en apariencia los requisitos del cartel para tener una garantía de éxito (folio 1168). Sin embargo, y como ya se analizó más atrás, en relación a las impugnaciones a favor de [Nombre001], es más que evidente que el proceso que concluyó con la adjudicación fue prístino, y que solo dos competidores, por diversas razones, no atinentes a Alcatel, terminaron por participar en el procedimiento abreviado, quedando excluido por razones técnicas y de la oferta, Ericsson.

De hecho, las valoraciones de diversas instancias del ICE coincidieron que la oferta técnica que mejor cumplía los requisitos exigidos era la de Alcatel, y avalaron la adjudicación, tal y como se analizó con detalle por parte de esta Cámara. Es por ello, que puede derivarse de la argumentación del voto de mayoría, que había una hipótesis de condena que había sido construida a partir de la declaración de [Nombre026], y los detalles que este dio sobre las ofertas remuneratorias recibidas y del papel que debía cumplir a la hora de participar en las sesiones del Consejo Directivo como miembro del mismo. Pero lo cierto, es que el proceso hacia la migración estaba decidido desde antes de que tales ofertas tuvieran lugar, y el camino no fue fácil pues la infraestructura tecnológica de base TDMA convertía a Costa Rica en dependiente de los proveedores de la mencionada tecnología, oferta en la que, por supuesto, Alcatel estaba excluida, pues su base de desarrollo era la tecnología GSM.

Sin embargo, ni la oferta comercial, ni la entrega de las 2000 líneas GSM fueron definitivas para convencer al Consejo Directivo de la conveniencia de seguir el camino de la apertura, pues dichas decisiones ya venían tomándose con criterios técnicos, y estudios de benchmarking y de otra naturaleza. Todo el proceso, finalmente, produjo el interés de don [Nombre052] y del Consejo Directivo del ICE de orientarse por el procedimiento de compra directa. Ya esta Cámara ha considerado que este camino beneficiaba más Alcatel en virtud de que proporcionalmente participaría de las compras que haría el ICE de líneas telefónicas. El procedimiento abreviado, por su parte, no le garantizaba esa seguridad, no sólo ante la incertidumbre de quiénes serían sus competidores, cuál sería la naturaleza de las ofertas económicas, y en qué condiciones se produciría todo el proceso de evaluación de dichas ofertas.

Finalmente, se adjudicó el contrato a Alcatel, pero no en virtud de una oferta amañada. Todo parece indicar que la oferta llenaba satisfactoriamente los intereses públicos, y las posibilidades de crecimiento que tenía el ICE para esas fechas, frente a la demanda pendiente y el pronóstico de evolución futura del mercado. El cambio tecnológico, además, se adecuaba a las necesidades del mercado celular, que esperaba mejores servicios de comunicación de valor agregado, que la plataforma TDMA no podía satisfacer. Todo esto ha sido analizado ya con ocasión de analizar la participación de [Nombre001] como coordinador de la comisión encargada de todo este procedimiento, y donde esta Cámara puso especial énfasis en el análisis del procedimiento licitatorio. La defensa de los encartados, pero especialmente el licenciado Erick Ramos, insistieron siempre en que era ilógico que la propuesta remuneratoria, tal y como la relata [Nombre026], tuviera esos objetivos que sostiene el tribunal de mérito en su voto de mayoría.

A pesar de ello, las juezas insisten en que las aseveraciones de [Nombre026] fueron ratificadas por ellas, aun cuando chocan, como se ha demostrado, con la realidad propia de un procedimiento que expertos han calificado de prístino. De folio 1172 a 1175, se explora en la sentencia la relación de parentesco que existe entre [Nombre015] y [Nombre009], la que, a pesar de los requisitos del código de ética de Alcatel, se produce y facilita el canal o flujo de dineros a los funcionarios ímprobos que terminan por decidir el proceso de adjudicación de las 400 mil líneas. La sentencia ubica a [Nombre015] utilizando un mecanismo “seguro” de pago de las dádivas, que ya había sido explicado, supuestamente, a [Nombre026]. La conexión causal, entonces, entre [Nombre015] y Servicios Notariales Q.C. S.A. y todo el mecanismo ideado para pagar las dádivas, se sostiene de una inferencia a partir de la declaración de [Nombre026], por más que las conexiones y pagos a través de la indagación bancaria (también cuestionada) tuvieran su efecto en la convicción judicial.

Al respecto, [Nombre026] explicó en cada una de las siete ocasiones en que se le transfirieron fondos, [Nombre015] se comunicaba previamente con él y le preguntaba de la forma en que se pagaría. [Nombre026] le daba números de cuenta y los fondos fluían hacia allí. De esto deriva el Tribunal de mayoría, además, la conexión entre [Nombre015] y [Nombre009] que hacía los pagos desde las cuentas controladas por Servicios Notariales QC S.A. Lo dicho por [Nombre026], sobre su papel en las decisiones del procedimiento abreviado y en la adjudicación del proyecto “400K” resultan abiertamente ilógicas, y no se compadecen del análisis del proceso de toma de decisión que demuestra que el ICE ya avanzaba hacia la apertura tecnológica, mediante los caminos legales y con los obstáculos propios de la Administración Pública para tomar decisiones. Sin embargo, el camino estaba abierto desde antes de que [Nombre026] recibiera promesas remuneratorias (según su dicho) para incidir en el procedimiento.

La mendacidad del testigo [Nombre026], y la sospecha bien afianzada de que actuó de forma egoísta para obtener beneficios de su declaración, no puede ser obviada por esta Cámara y procede considerar el uso de su testimonio otra razón para declarar con lugar el recurso de los licenciados Ramos y Morales, y decretar la nulidad de la sentencia bajo examen que encontró culpable a [Nombre015] de cuatro delitos de penalidad del corruptor. No resultó necesario, para afianzar esta convicción de esta Cámara de Apelación, valorar el expediente 08-000032-615-PE, seguido contra don Francisco Dall´Anesse Ruíz, en cuanto al tema de que el acuerdo con el coencartado [Nombre026] abarcó otros temas diversos además de lo relacionado con la contratación de las 400 mil líneas celulares, pues, como ya se analizó con ocasión del recurso del Dr. [Nombre012], se ha logrado determinar con claridad que la concesión del criterio de oportunidad tiene falencias, que afectan su directo uso en esta causa.

Es por lo anterior, que se declara con lugar el motivo y procede anular el fallo bajo examen, sin disponerse el reenvío pues no hay otros elementos independientes que contribuyan al efectivo análisis de la participación criminal del justiciable en los hechos que se le endilgan. Por lo que en aplicación del principio de economía procesal, corresponde absolverle de toda pena y responsabilidad por dichos hechos. C. Prueba Espuria (Nulidad de la prueba no. 588). Los justiciables [Nombre001], [Nombre009], [Nombre015] y [Nombre021]. (Recurso visible a folios 17264 a 17278 del Tomo XXXVI), plantean en su libelo, autenticado por el licenciado José Miguel Villalobos Umaña, que se ha infringido el artículo 369, inciso j) al dictarse la sentencia con violación al debido proceso, al fundamentarse sustancialmente las condenas en prueba ilegalmente obtenida e ilegalmente introducida al debate y por ende se violenta también el inciso c) al incorporarse ilegalmente un elemento probatorio al proceso, con lo que se contrarían las disposiciones constitucionales referidas al debido proceso y al derecho de defensa que consagran los numerales 39 y 41 constitucionales y la doctrina que inspira el Artículo 8 de la Convención Americana de Derechos Humanos.

Citan, adicionalmente, la resolución de la Sala Constitucional No. 1739-92 de las 11:45 horas del 1 de julio de 1992, que con redacción del entonces Magistrado Piza Escalante y por votación unánime, determinó los elementos que comprenden el concepto del debido proceso, entre ellos el principio de legitimidad de la prueba (inciso g) sub-inciso b)). Junto a este principio, invocan el derecho general a la legalidad, que convierten violaciones de mera legalidad en violaciones al debido proceso, con el objetivo de alcanzar plena garantía y eficacia material. Señalan, además, que los artículos 180 a 184 de la legislación de rito contemplan esta misma consecuencia por derivar del principio de legalidad constitucional del artículo 11 de la Carta Magna, que obliga a los funcionarios públicos a respetar las normas jurídicas para tener autoridad moral para juzgar y sancionar a quienes las infringen.

Pero este requisito, dicen, no tendría sentido, si no se exige también que los medios probatorios sean obtenidos lícitamente, lo que acarrea, constitucionalmente, que no solo los medios deben tener valor en sí en cuanto a su obtención pero también en la forma en que son incorporados al proceso penal. No tendría sentido, entonces, obtener prueba ilícitamente que luego es legítimamente introducida al proceso, pues en tal circunstancia ya se habrían afectados garantías fundamentales que los jueces están llamados a cumplir. que probatorios que fueron utilizados para su condena, con el objetivo de estudiar su ilegítima obtención e incorporación al proceso. Comienzan con un análisis de la prueba 588 que contiene la información bancaria de Panamá de las cuentas de la Sociedad Marchwood Holding. Según los impugnantes, la prueba es obtenida de manera ilegal, sin orden judicial. Además, se trata de una copia certificada de un expediente judicial diferente.

El criterio expuesto por las juzgadoras es oscilante, sosteniendo incluso, que no está en la esfera de sus competencias determinar si la prueba fue obtenida ilícitamente, lo que resulta contradictorio pues ya que casi desde el inicio de este juicio se pronunciaron al respecto, reconocieron que esa prueba se obtuvo mediante un levantamiento del secreto bancario sin orden de Juez e inclusive se anuló un material probatorio traído al debate con idéntico procedimiento, mediante la resolución unánime en ese aspecto y con redacción de la Jueza García Aguilar de las 8:00 horas del 14 de mayo del 2010. Allí se indica que esa prueba venida de Panamá es NULA: a partir del Folio 34 al 70 de esa resolución se reseñan los argumentos por los cuales no se puede permitir que prueba venida de Panamá que consiste en evidencia bancaria recabada sin orden judicial sea válida y por ello se mantiene la decisión del Juez de la audiencia preliminar de excluirla.

En todo caso, sostienen los impugnantes, ya las juezas habían exteriorizado criterio al decir que la PRUEBA 588 SE RECABÓ SIN ORDEN JUDICIAL QUE LEVANTARA LA PRIVACIDAD DE LOS DATOS. (Ver Folio 894, línea 2 y siguientes). En un segundo punto se refieren a la información bancaria de Panamá que deriva de la prueba 588, que alude, por primera vez, a la Sociedad Servicios Notariales QC S.A. sin que exista prueba alguna independiente a este respecto. Parten en su apreciación que la prueba 588 es copia certificada de la Asistencia Judicial que contiene la Causa CAJA-FISCHEL que se tramitó en expediente separado, por lo que fue revisada para obtener información para esta otra causa. Es así, dicen, que el Informe Pericial 428-DEF-443-05-05 del Organismo de Investigación Judicial, prueba No. 618, incluye la información venida de Panamá, así se ve en los folios 59, 70, 81 y 88, que contienen indicaciones a las transferencias de una empresa denominada Servicios Notariales, ajena a la causa CCSS-Fischel, hacia la empresa Marchwood Holding, que sí se investigaba en aquella.

Es de esa forma que la Fiscalía toma conocimiento de la empresa Servicios Notariales QC S.A., de otra manera no habría tomado conocimiento de su intervención si no hubiera sido por el uso de esta prueba espuria. Establecen que esta información ilegal llega a Costa Rica desde Panamá a inicios de septiembre del 2004 y se recibe finalmente en la Fiscalía el 10 de septiembre del 2004, a las 14:00 horas, según consta al Folio 895 de la sentencia. Se solicitó la información sobre Marchwood Holding, no sobre Servicios Notariales QC desde el 25 de mayo de ese año y a partir del 10 de septiembre la Fiscalía se entera de la existencia de una sociedad denominada como QC y sobre ella inicia una investigación a partir de ese momento. En otras palabras, insisten, no hay ninguna referencia previa a Servicios Notariales QC antes de esta fecha del 10 de septiembre, por lo que la investigación del caso ICE-ALCATEL comienza, formalmente, con la información obtenida a partir de la prueba 588 de Panamá, la que es nula, subrayan, por haber sido obtenida sin orden judicial, por lo que debe excluirse su conocimiento en aplicación de la regla de exclusión que establecen los votos de la Sala Constitucional y los numerales 180 y siguientes del Código Procesal Penal, afectando todo elemento que derive de ella.

Reclaman, no hay prueba independiente y autónoma de esa prueba ilícita que permita sanear la ilegalidad de esa información obtenida de la prueba 588. Según las juezas del Voto de Mayoría, habría pruebas independientes a la prueba 588, que no resultan afectadas por la presunta ilegalidad, y que de eliminarse la prueba 588 podría sostener los asertos de la acusación fiscal en contra de los justiciables. Citan, para ello, fuentes periodísticas: la evidencia 592.9 denominada MONITOREO DE PRENSA ESCRITA DEL 9 AL 31 DE DICIEMBRE DEL 2004, en referencia a publicaciones del 21 y 27 de abril de ese año, las cuales no hacen referencia alguna al tema en discusión, según lo establecen los justiciables. Esto por cuanto de las notas de prensa a las que aluden las Juezas no se desprende la existencia de una empresa llamada Servicios Notariales QC S.A. Tan solo hay referencias a una casa en [...] y a [Nombre021].

A folio 935, se citan notas periodísticas de abril de 2004, que constan en las pruebas 529.9 y 682.1. No obstante, la primera habla de algunos temas de Taiwan y la segunda hace referencia a otros hechos pero en modo alguno a Servicios Notariales QC. Tampoco la publicación citada en el folio 936 da la información que pretenden las juezas, pues dicha nota del 28 de septiembre tampoco alude a Servicios Notariales QC, además de que para esa fecha ya había llegado la información bancaria ilegalmente obtenida en Panamá. Según los recurrentes, sería evidente que la prensa había recibido la información derivada para contribuir solícitamente con la investigación. Rechazan también que la entrevista con el señor [Nombre085] del 27 de septiembre sea anterior a la ilegal evidencia venida de Panamá. Plantean, las juezas opinaron que fueron los datos bancarios los que provocaron nuevos derroteros en la investigación y la que provocó la obtención de prueba posterior.

Continúan con su argumento, y estudian ahora LA ACTUACIÓN DEL SEÑOR [Nombre032] POR ESCRITO Y VERBALMENTE NO TIENE LA MAGIA DE SUPRIMIR LA INVALIDEZ EN LA OBTENCIÓN DE LA PRUEBA BANCARIA DE PANAMÁ. Se trata de la crítica a la posible forma de eliminar la ilicitud de la prueba por el consentimiento que da el señor [Nombre032] al uso de los elementos probatorios que pudieran obtenerse del acceso a sus cuentas, no sólo por la documentación escrita disponible sino también por las expresiones verbales que este hace en juicio. Según los recurrentes, y este es su argumento central, la prueba fue obtenida sin orden judicial e ingresó al país el 10 de septiembre de 2004. Con esta prueba en manos del Ministerio Público, se ordenaron levantamientos del secreto bancario de empresas como Servicios Notariales QC, se acusaron a los imputados y se solicitaron medidas cautelares. Y no es sino hasta el 17 de mayo de 2010, que [Nombre032], concede su autorización para la obtención, uso y utilización de la información bancaria disponible en su cuenta bancaria en Panamá, según refieren las Juezas al Folio 896 y consta en la Prueba 759 al folio 13449 de los autos.

Cuestionan esta autorización como una forma de brindar legalidad retroactiva al acceso a sus cuentas sin orden del juez, tratando de borrar la ilegalidad que ya consta por la actuación fiscal en torno a este tema. Cuestionan igualmente que se trate de probar el carácter de representante de la cuenta que ostentaba [Nombre032] con la misma prueba cuestionada 588, sobre todo si lo hace seis años después. Rechazan también las tesis que tienen que ver con la idea del descubrimiento inevitable, de la notitia criminis o del hallazgo casual, con las que el tribunal intenta legitimar el uso de la prueba 588, con argumentos que no se sostienen en virtud de la ilegalidad de la prueba que ya de origen hace imposible la utilización de sus informaciones en el proceso penal (folios 173584 a 173586 del Tomo XL). Llevan razón en su reclamo. Los argumentos para analizar este problema jurídico ya han sido explicitados más atrás, al resolver el recurso planteado por el Dr. [Nombre012] (A-1).

Así las cosas, corresponde aplicar al justiciable [Nombre015], los mismos efectos que esta determinación tuvo para el justiciable [Nombre012], se declara la nulidad de la prueba documental No. 588 y todos los elementos probatorios que de esta dependen, se declara la nulidad de la sentencia condenatoria penal dictada en contra de [Nombre015] y en su lugar se le absuelve directamente de toda pena y responsabilidad. D. Vicios en cuanto a la determinación del hecho y la valoración de la prueba para determinar los indicios que condujeron a la condena por el delito de Penalidad del Corruptor. 1. En cuanto a la errónea aplicación de la ley sustantiva en lo que se refiere al artículo 345 del Código Penal. En el primer motivo por vicios in iudicando, plantean los recurrentes que don [Nombre015] no puede ser condenado como autor del delito de Penalidad del Corruptor por haber realizado una promesa de entregar una dádiva para la realización de un acto propio de sus funciones de los involucrados.

La entrega posterior de la dádiva sería un hecho impune pues es independiente y el contenido de injusto de la acción se concreta en la promesa de la dádiva. Comienzan los apelantes con algunas consideraciones sobre la función sistemática del tipo penal y las derivaciones que pueden establecerse entre su descripción normativa y su papel de garantía para el derecho penal. Con respecto al delito de penalidad del corruptor, que ocupa el interés central de este acápite, consideran que los hechos apuntan lo siguiente: “…La norma correspondiente a la PENALIDAD DEL CORRUPTOR (actualmente la del artículo 345 del Código Penal) ha sido objeto en los últimos años de varias reformas directas o indirectas. En consideración a lo que establecía el tipo penal correspondiente para la fecha aproximada de comisión de los hechos delictivos que se tienen por acreditados (según lo que se tuvo por demostrado así: [Nombre004]: ofrecimiento de dádiva a finales del 2000 y principios del 2001; [Nombre001]: ofrecimiento de dádiva a finales del 2000 y principios del 2001; [Nombre026]: ofrecimiento de dádiva a finales del 2001; [Nombre027]: ofrecimiento de dádiva entre los meses de enero y agosto del 2001) valga la oportunidad para destacar cómo estaba redactada la norma en ese momento:

Artículo 345: Las penas establecidas en los cinco artículos anteriores son aplicables al que diere o permitiere al funcionario público una dádiva o la ventaja indebida.

Interesa destacar que el artículo 185 de la ley 7732 de 17 de diciembre de 1997, modificó la numeración del Código Penal y asignó al hasta entonces artículo 343 el numeral 345. Posteriormente, al Código Penal se le adicionó la norma del artículo 343 bis mediante Ley 8185 del 18 de diciembre de 2001, publicada en La Gaceta No. 10 de 15 de enero de 2002, referida al Ofrecimiento u Otorgamiento de Dádivas o Retribuciones. Se sanciona aquí la conducta concreta de quien ofreciere una dádiva a un funcionario público de OTRO Estado. Finalmente, debemos destacar también que el artículo 1º de la Ley 8630 del 17 de enero del 2008 derogó el artículo 343 bis y reformó la norma del artículo 345, ambas del Código Penal, para que en adelante se lea así:

"Artículo 345.- Penalidad del corruptor: Las penas establecidas en los cinco artículos anteriores serán aplicables al que dé, ofrezca o prometa a un funcionario público una dádiva o ventaja indebida."…” En cuanto al bien jurídico tutelado en el delito de Penalidad del Corruptor se hacen algunas acotaciones doctrinales. Comienzan con Muñoz Conde, quien sostiene que se tutela a través de la punición de esta conducta el correcto funcionamiento de la administración, lo que incluye también el principio de imparcialidad en el funcionario público. El autor ORTS BERENGUER, por su parte, apunta a que a través de esta figura se tutela el principio de objetividad y de imparcialidad en la administración. En América Latina, el autor argentino CREUS indica que se tutela la venalidad del funcionario público como objeto de protección. Citan también antecedentes de los fallos de la Sala Tercera de Casación Penal, en concreto el Voto 183-95, el que a su vez reitera lo ya sustentado en el 256-F-97, y en el que se dijo que se tutelaba el “sano y normal funcionamiento y prestigio de la administración pública a través de la corrección e integridad de sus empleados o servidores…”.

En cuanto a la acción prohibida por la norma penal antepuesta al tipo penal sugieren que un análisis simple de la incriminación arroja como resultado que se prohíbe la conducta de dar o permitir una dádiva o la ventaja indebida que el sujeto realiza al funcionario público. Sobre el historial de este tipo penal en lo que hace a la conducta prohibida agregan lo siguiente: “…Valga la oportunidad para apuntar que la historia relevante en relación con este artículo inicia con el pronunciamiento contenido en el Voto 461-91 de la Sala Constitucional de la Corte Suprema de Justicia. En lo que interesa, en él se estableció esencialmente que el artículo 343 del Código Penal (345 posteriormente) no se puede interpretar sin lesionar el principio de legalidad constitucional, en el sentido de que lo que el legislador quiso decir no es "permitiere" sino "prometiere". El mismo caso dentro del cual se ordenó este Voto de la Sala Constitucional posteriormente provocó la emisión por la Sala Tercera de la Corte Suprema de Justicia del Voto 183-95, el cual indicó en lo que interesa que la Sala Constitucional estableció que no es legítimo leer "prometiere" donde dice "permitiere"; pero que lo cierto es que no estableció nada respecto a la significación de las palabras que componen el tipo penal: no nos dice qué debemos entender o qué no debemos entender de esas palabras.

Y lo que la recurrente sostiene es, precisamente, que cuando la Sala Constitucional establece que no se puede sustituir el verbo "permitiere" por la palabra "prometiere", no está excluyendo el "ofrecimiento" o la "promesa" como posible contenido semántico de la palabra "diere" consignada en el referido numeral del Código Penal. La consulta de diversos diccionarios da la razón a la impugnante; de tal forma que debe convenirse en que quien promete, ofrece o propone a un funcionario público una dádiva, presente o futura, para que éste haga un acto contrario a sus deberes (o incurra en cualquiera de las hipótesis de los artículos 338 a 342 del Código Penal) adecua su conducta a la hipótesis prevista y sancionada en el artículo 343 del Código Penal… Los recurrentes rechazan esta derivación que hacía la Sala de Casación Penal en sus precedentes, y sugieren que la norma antepuesta al tipo no abarca los significados de “proponer, ofrecer o prometer”.

El motivo debe declararse con lugar. En efecto, no puede dársele a la palabra “permitiere” la aplicación jurídico penal como si dijera “prometiere”, pues esto cambia el sentido de la prohibición. El principio de legalidad criminal, contemplado en el artículo 39 constitucional y en el artículo primero del Código Penal, exigen del juez un gran cuidado de no asumir funciones de legislador, las cuales bien se producirían, por ejemplo, a través de enmendar eventuales errores en la publicación de una ley, o promover lecturas de la estructura del tipo que resulten aberrantes desde el uso convencional de los términos. Intentar una lectura, por ejemplo, del verbo “dar” a partir de rebuscadas elaboraciones semánticas, que pudieran apartar la correcta interpretación del término del entendimiento convencional de dicho verbo, podría llevar a una sustitución del objetivo punitivo de la ley penal, que tiene como objetivo ser comprendida por los destinatarios de la norma, y comprendida de tal manera que sea acatada la prohibición.

Así las cosas, entender la palabra “dar” como si fuere “prometer” u “ofrecer” es una interpretación que contraría el principio de legalidad, no sólo por dar a la interpretación semántica un giro que se aparta del uso convencional de dicho término, como porque implica extender el ámbito de cobertura del tipo penal más allá de donde los límites de lo punible lo permite. Hacerlo sería incurrir en una interpretación extensiva de los contenidos del tipo penal que se encuentra prohibida por la Constitución Política, que se inspira en varios siglos de construcción de las garantías penales que han sido desarrolladas para impedir este tipo de actuaciones judiciales, que afectan la seguridad jurídica de los ciudadanos y ciudadanas de un Estado Democrático y Social de Derecho como es el costarricense, según la lectura programática del artículo 1 de la Constitución Política. La propia Sala Tercera de la Corte Suprema de Justicia, en su Voto No. 580-F-91, externó un criterio en el sentido de que no podría dársele a la norma un contenido o significado que el legislador no había previsto: “III.- En el primer motivo del recurso por el fondo se acusan violados los artículos 1, 30, 31, 54, 343 y 339 del Código Penal.

Afirma el recurrente que el criterio de la Sala Constitucional no es acertado, ya que de la concordancia de los artículos 343 y 339 del Código Penal se deduce que la promesa de una dádiva o ventaja indebida, hecha a un funcionario público para que haga un acto contrario a sus deberes, o para no hacer o retardar un acto propio de sus funciones, constituye un hecho típico, antijurídico y culpable. El razonamiento no es atendible, en primer término porque el verbo utilizado en el artículo 343 citado no comprende la promesa (diere o permitiere), y aún cuando el legislador hubiere pretendido incluir la promesa, según la relación que se hace con el 339 ibídem, la verdad es que debe prevalecer lo que dice la norma y no lo que pudo querer el legislador sin indicarlo en la norma, de conformidad con los principios constitucionales de legalidad y tipicidad. En segundo lugar, tampoco sería admisible una interpretación distinta a la de la Sala Constitucional hecha en Sentencia N 461-91 del 27 de febrero de 1991, en cuanto esta señaló que en el artículo 343 citado no se incluyó la promesa, con fundamento en el artículo 13 de la Ley de la Jurisdicción Constitucional, que establece que la jurisprudencia de esa Sala es vinculante erga omnes.

Por todo lo recién citado, como lo es el Voto 183-1995, cuando interpreta que con el concepto “diere” se abarcan los significados “proponer, prometer y ofrecer”, sin embargo, este tipo de criterios se oponen a una aplicación conforme a la constitución de los tipos penales. Recuerdan los recurrentes un voto salvado del Dr. Javier Llobet, en su función de juez de casación, quien en un voto del antiguo Tribunal de Casación, Voto No. 27-2004, sostuvo lo siguiente: “…VI.-VOTO SALVADO DEL JUEZ LLOBET RODRÍGUEZ: El suscrito juez en forma respetuosa disiente de la mayoría en cuanto la misma estima que el delito por el que se condenó al imputado se consumó, estimando que el mismo quedó en estado de tentativa, ello de acuerdo con la descripción del tipo penal de penalidad de corruptor, establecido en el artículo 343 del Código Penal. Para lo anterior estima que si bien el imputado dio una dádiva, ello lo hizo en un operativo policial, el que fundamentalmente debe considerarse que tenía como finalidad comprobar la acción ilícita en que había incurrido el imputado al ofrecerle una dádiva a un letrado de la Sala Constitucional.

El hecho de que se tratara al respecto de un operativo controlado impide que pueda hablarse propiamente de una consumación del delito, debiendo estimarse que se está ante una tentativa, puesto que el ofrecimiento de la dádiva supone un acto de ejecución del delito. Este criterio ya fue esbozado en la nota del magistrado Piza Escalante, al voto 461-91 del 27 de febrero de 1991 de la Sala Constitucional, habiendo hecho mención al mismo la Sala Tercera de la Corte Suprema de Justicia en diversos fallos, aunque la misma fundamentalmente ha dictado las sentencias relacionadas con hechos similares al presente estimando que se da un delito consumado, ello por medio de la utilización del término “diere”, estimando que dar de acuerdo con el diccionario de la Real Academia tiene entre sus acepciones ofrecer. Este es el criterio que ha mantenido dicha Sala a partir del voto 183-F-95 del 24 de marzo de 1995, al que se remite.

Este juez, sin embargo, considera que en lo relativo al término dar debe seguirse el concepto que se usa en el lenguaje común, lo que es una consecuencia del principio de legalidad, debiendo estimarse que dar es entregar, que es la primera aceptación que se encuentra en el Diccionario de la Real Academia. Sin embargo, la acción de ofrecer una dádiva no puede considerarse como impune, puesto que implica ya la realización de un acto encaminado directamente a la consumación del delito, el que no pudo llegarse a consumar debido a que en definitiva la dádiva fue rechazada por el letrado de la Sala Constitucional e incluso se montó un operativo para atrapar al imputado (Art. 24 del Código Penal).” (el subrayado no es del original)…”. La tesis expuesta en este voto salvado es la que esta Cámara avala, en el sentido de que verbo “dar” se le debe conceder la acepción del lenguaje común, y que por lo tanto sería su contenido idéntico a “donar” o “entregar”, que son las primeras acepciones del Diccionario de la Real Academia Española de la Lengua.

La reforma del artículo 345 del Código Penal, a través de la Ley 8630 iba en el sentido de precisar esta incongruencia de la construcción legislativa, y fue así, como en el año 2008 se construyó el tipo penal para que dijera: “Artículo 345. Penalidad del Corruptor: Las penas establecidas en los cinco artículos anteriores serán aplicables al que dé, ofrezca o prometa a un funcionario público una dádiva o ventaja indebida.” Lo anterior, demuestra la voluntad del legislador por corregir un gazapo incluido en la anterior construcción de la incriminación, que hacía imposible su aplicación para los casos de oferta o promesa remuneratoria, que debían ser considerados en el delito de Penalidad del Corruptor, tanto por la forma en que estos hechos se producen en el mundo de la vida, como porque esta construcción también abarca más hipótesis probables de comisión. A [Nombre015] se le acusa de prometer una dádiva a [Nombre001], [Nombre004], [Nombre026] y [Nombre027], todos ellos funcionarios públicos, a fin de realizar actos propios de sus funciones en relación con un contrato en el que está interesada la Administración Pública.

Desde esta óptica, es que debe declararse que tales acciones no constituyen el delito que sancionaba la norma del artículo 343 del Código Penal al momento de comisión del hecho delictivo, ni ningún otro de los delitos que establece el Código Penal, no sólo porque ese no es el contenido de lo prohibido, sino como porque como ya se ha resuelto en relación con los otros coencartados, no se ha podido determinar cuál es la acción concreta que tenía que desplegar, o si las dádivas fueron como premio por un acto cumplido. En otras palabras, existe un efecto favorecedor a las posiciones jurídicas de [Nombre015] en cuanto a la indeterminación de los hechos acusados a los presuntos afectados por el acto corruptor, que indudablemente deben concurrir a producir la nulidad del fallo y declarar la absolutoria. Además, y esto es consecuente con un derecho penal democrático, no puede estimar que la promesa de la dádiva es independiente de la entrega de la dádiva, pues ambos momentos son unívocos e inseparables para el corruptor, quien desea afectar el bien jurídico penalmente protegido en los delitos contra la probidad. En tal sentido, también por esta razón corresponde disponer la absolutoria a favor de [Nombre015].

XII.SE RESUELVE RECURSO DEL IMPUTADO [Nombre021] MEDIANTE ESCRITO AUTENTICADO POR EL LICENCIADO HUGO SANTAMARIA LAMICQ EN EJERCICIO DE SU DEFENSA MATERIAL. El imputado [Nombre021] se apersonó ante esta Cámara para plantear recurso de casación y luego conversión de su recurso en apelación. De los motivos planteados por el acusado [Nombre021], este Tribunal de Apelación procederá a resolver, en primera instancia, aquellos vicios que constituyen, razones fundamentales para decretar la nulidad del fallo y la absolutoria del acusado. Sección Primera.- Vicios que por sí solos implican la nulidad de todo lo resuelto. A. La causa está prescrita. En el Primer Motivo del recurso de [Nombre021], se alega errónea aplicación de las reglas de prescripción consagradas en los artículos 31, 32, 33, 361, inciso a) y 369 del Código Procesal Penal. Comienza señalando que el Tribunal rechaza la excepción de prescripción que interpuso la defensa de [Nombre021].

Sin embargo, el voto de minoría del Juez Camacho Morales discrepa de este criterio y acoge la excepción, y remite a los razonamientos expuestos en el voto disidente. Considera que el tema de fondo consiste en la aplicación del artículo 62 de la Ley No. 8422 del 6 de octubre de 2004, denominada Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública, en adelante LCC, que entró en vigencia el 29 de octubre con su publicación en La Gaceta Número 212 de ese día. Según el propio Tribunal, de no haber sido por esa norma, la causa ya estaría prescrita, por lo que se dirige a cuestionar esta interpretación que aplica incorrectamente las reglas de prescripción de la ley de rito y de la propia LCC, así como algunos aspectos de la jurisprudencia erga omnes de la Sala Constitucional. Según el voto de mayoría, al no reducirse el plazo de prescripción a la mitad, como lo establece el artículo 33, primer párrafo de la ley de rito, al aplicarse presuntamente lo dispuesto en el Artículo 62 de la LCC, la acción penal prescribiría el 30 de noviembre de 2007 y no el 30 de mayo de 2006.

Por lo que considera que lo importante es determina si ese artículo 62 LCC es aplicable a la especie. Al respecto, comienza su argumentación con la idea expresada en el voto de mayoría, a folio 792, donde se dice que no comparten la tesis de la defensa en el sentido de que se trata de una reducción de plazos para la duración del proceso y no de un tema de prescripción. La diferencia tiene interés, pues si se trata de un control de la duración del proceso estaríamos en presencia de un tema de derechos adquiridos por el imputado y no frente a temas de prescripción o de aplicación de normas procesales. El control de la duración de proceso es un tema de derechos humanos, insiste el justiciable [Nombre021], que derivaría del artículo 41 de la Constitución Política, en cuanto plantea la justicia pronta. Aumentar los plazos para el control de duración del proceso en perjuicio de los imputados si configuraría una aplicación retroactiva de la ley en perjuicio de derechos adquiridos.

Sin embargo, las juezas del voto de mayoría se separan del criterio de la defensa, que a su vez descansa en lo planteado en el Voto 4397-99 de las 16:06 hrs. Del 8 de junio de 1999, que en su considerando VI, que es erga omnes, al explicar que esos términos no son propiamente de prescripción sino de reducción de los plazos para la tramitación del procedimiento según la idea del control de su duración. Pero aun rechazando este criterio, que impediría la retroactividad en daño de derechos adquiridos del justiciable, habría otro criterio, también constitucional, que sostiene que las normas de prescripción no se pueden aplicar retroactivamente salvo que el legislador Constitucional, en su voto 4397-99 claramente fijó que las leyes rigen hacia el futuro, por lo que su aplicación hacia atrás solo tendría validez por mandato penal no estaría prohibido que la ley se aplique retroactivamente según ella misma establezca únicamente de los casos pendientes.

El motivo debe ser declarado con lugar. El artículo 62 de la Ley contra la Corrupción y el Enriquecimiento Ilícito en la función pública no tiene, expresamente, una indicación que haya de aplicarse en causas pendientes o de futura iniciación, por lo que debe interpretarse de manera conforme a la Constitución Política y a la jurisprudencia erga omnes de la Sala Constitucional, que la mencionada normativa será aplicable a futuro. Es decir, el artículo 62 de la LCC sólo sería aplicable a las causas que se inicien con posterioridad al 29 de octubre de 2004. Si era voluntad del legislador cubrir a las causas pendientes a la fecha, debió indicarlo expresamente, para que los efectos de la ley posterior pudieran irradiar a todas las causas iniciadas antes de la vigencia de la ley. La mencionada ley no contiene transitorios ni explicación en la “Exposición de Motivos” que dé argumentos para considerar una aplicación retroactiva de sus disposiciones.

Antes bien, la redacción del legislador permite derivar un interés de regular hacia futuro, es por ello que se utilizan formas verbales tales como “prescribirán” o “regirán” que están previstas en el idioma español para implicar futuro. Si otra fuera la voluntad del legislador debió haberse expresado claramente, aludiendo a los efectos retroactivos de la ley procesal posterior. Los jueces, en efecto, están impedidos de realizar funciones propias del legislador, y no podrían interpretar efectos que la ley procesal expresamente no contiene. Esto último, sobre todo, cuando la ley procesal posterior pudiera tener efectos retroactivos contrarios a las posiciones jurídicas del justiciable, limitándole su derecho de defensa, sus derechos de intervención en el proceso, su derecho a la excarcelación o, como ahora, a alegar válidamente el transcurso de la prescripción de la causa penal. Las leyes procesales están diseñadas para regir hacia el futuro, por lo que en buena lógica, y a partir de su interpretación conforme a la Constitución Política, solo tendrían efecto retroactivo aquellas disposiciones procesales que tenga un efecto más benigno en las posiciones jurídicas del justiciable.

En el caso presente, el encartado [Nombre021] declaró con posterioridad al 29 de octubre de 2004, sin embargo, la causa se había iniciado antes de esa fecha y a ella no le eran aplicables sus disposiciones, salvo norma expresa legislativa que no existe en el presente caso. Es por lo anterior, que el plazo de prescripción para [Nombre021] se produciría recién el 30 de mayo de 2006 y con anterioridad a la firmeza de la declaratoria de trámite complejo de esta causa en julio de ese año o la convocatoria a la audiencia preliminar de septiembre del 2007. Ambos momentos procesales posteriores a la fecha en que habría que declarar prescrita la causa. En cuanto al tema de la declaratoria de tramitación compleja de la causa, ya esta Cámara se había pronunciado en contra de los efectos retroactivos que se le ha dado a la declaratoria de tramitación compleja de la causa. Los razonamientos que apoyan esta conclusión, ya han sido expresados al resolverse el recurso del Dr. [Nombre012], a los que se remite para evitar reiteraciones innecesarias.

Corresponde, entonces, declarar la causa seguida contra [Nombre021] prescrita y absolverle del delito de Enriquecimiento Ilícito que se le venía atribuyendo. B. Prueba espuria. En el segundo motivo del recurso planteado por [Nombre021], se plantea la errónea aplicación de las normas atinentes al levantamiento del secreto bancario, por lo que la prueba bancaria utilizada para demostrar los depósitos a su favor, resulta ilícita e inutilizable para la condenatoria. Argumenta que su defensor se opuso a la prueba bancaria procedente de Bahamas. Expresamente el Tribunal se pronunció sobre este tema en el Considerando II. H. 1. Según lo explica, dicha prueba bancaria procedente del Banco de San José en Bahamas requerida en el caso CCSS- Fischel, y aportada como material probatorio en este proceso, según pruebas 543, 544 y 545, había sido solicitada en exclusiva para la causa denominada CAJA-Fischel y no para este proceso.

Indica que una alteración de las traducciones al inglés eliminó ese expreso obstáculo de que la prueba solo sería utilizada en la causa CAJA-Fischel y se pretende probar con ella la recepción de certificados de depósito por parte de [Nombre021] con recursos procedentes de fondos de ALCATEL y Servicios Notariales QC., que se depositaron en el BAC BAHAMAS BANK LIMITED en ese país. La tesis defensiva es que no había orden judicial para levantar el secreto bancario para la causa ICE-ALCATEL. El Tribunal yerra, según dice, porque afirma que la prueba proviene Banco de San José en Bahamas y esa es su primera afirmación falsa. No es el Banco de San José en Bahamas, es un Banco autónomo, registrado en ese lugar y no una sucursal del BAC San José, como pretende maliciosamente hacer creer el Tribunal de mayoría. Se trataría de dos bancos diferentes y no de una sucursal simple del mismo. Alega que se necesitó una carta rogatoria a Bahamas para solicitar la prueba bancaria.

Si se hubiera tratado del propio Banco de San José, hubiera bastado con pedir la información al BAC San José en el país. Lleva razón en su reclamo y el motivo debe ser declarado con lugar. El banco domiciliado en Bahamas no es una simple extensión del BAC San José, sino un banco que ha sido fundado conforme a las reglas de otro país, por lo que el trámite para obtener información bancaria de dicha institución debe hacerse a través de los canales oficiales y, por supuesto, con una orden judicial para levantar el secreto bancario. Según el voto de mayoría (fl. 874) las mencionadas pruebas bancarias obtenidas para una causa penal podrían ser utilizadas para otras causas penales diversas a las que en principio fueron obtenidas, con una interpretación que llevaría al criterio absurdo que al Ministerio Público le bastaría obtener la autorización judicial para un solo levantamiento del secreto bancario para utilizar dicha información en innúmeras causas penales, aun descontextualizadas de aquellas donde se obtuvo originalmente la intervención.

Es evidente, que este tipo de información sensible debe ser requerida, dispuesta, almacenada, utilizada e interpretada de manera que sea compatible con la normativa constitucional. No podría pretenderse que se reduzca el valor y el contenido esencial del derecho constitucional a la privacidad de este tipo de informaciones, tan solo por un interés extendido del órgano acusador, que además pretende el uso de esta información sin ningún contexto de una investigación previa, con una orden judicial no expresa para dicha obtención de información, y con efecto en causas penales ni siquiera abiertas cuando se decidió la investigación penal original. El valor de utilidad de la prueba bancaria tiene que estar habilitado por todo un proceso de solicitud, obtención, introducción y valoración judicial que esté contextualizado en la causa penal donde ha sido requerida. Esto último es plenamente compatible con una interpretación del derecho a la autodeterminación informativa en el caso de informaciones financieras, y en cuanto a los efectos de dichas informaciones para la demostración de un hecho penal específico.

La orden debe valorar la necesidad, idoneidad, proporcionalidad en sentido estricto de la información que se requerirá, tomando en cuenta la naturaleza de la causa, la sensibilidad de la información y los presupuestos de sospecha disponibles en el estadio procesal en el que se decide la obtención de la prueba bancaria. Además, la solicitud debe dirigirse, de datos. El derecho a la autodeterminación informativa contemplado en el programa constitucional de Costa Rica, a partir del artículo 24 de la Constitución Política, en plena congruencia con la jurisprudencia erga omnes de la Sala Constitucional, requiere un determinado umbral de sospecha de comisión de un ilícito y una ponderación de la proporcionalidad de la medida que incide en derechos fundamentales, para poder proceder a obtener la información. Esto debe ser valorado en cada caso concreto, y por ello la solicitud del levantamiento del secreto bancario no puede ser genérico y descontextualizado de la causa en que va a ser utilizado.

Es evidente, entonces, que si la prueba obtenida en Bahamas no puede ser utilizada en la presente causa, la conexión probatoria con los depósitos en beneficio de [Nombre021] debería de ser suprimida por haberse afectado garantías constitucionales. Ahora bien, la supuesta corresponsalía o contrato de representación recíproca entre el BAC San José y el Bahamas Bank Limited es otra cuestión importante que no se ha demostrado en la especie, y tampoco se tiene conocimiento si los mencionados bancos pueden intercambiar información disponible de sus cuentas por mera solicitud interna administrativa para el giro normal de sus actividades financieras. En la sentencia se afirma que con la orden del levantamiento del secreto bancario del Bac San José era suficiente para levantar el secreto bancario también en Bahamas, es decir, en otra jurisdicción territorial, y, por supuesto, con otras normas legales vigentes.

El Bahamas Bank Limited, como bien lo afirma el recurrente, no forma parte del sistema bancario costarricense, por lo que la orden de levantamiento del sistema nacional no puede afectar a una institución bancaria domiciliada en el extranjero. Argumentar en ese sentido, llevaría a pensar que una orden dictada para el sistema bancario nacional tendría que afectar a la banca internacional, en cualquier contexto geográfico, lo que no se compadece, por ejemplo, de las distintas normativas bancarias que rigen la actividad financiera en los diversos países del mundo. El envío de transferencias desde Costa Rica a otro país, no convierte a los bancos que reciben dicha transferencia parte del sistema bancario nacional. El que reciban transferencias responde, por supuesto, a una práctica comercial que ha venido normativizándose con el objetivo de evitar daños y perjuicios a los clientes bancarios y para mantener la funcionalidad del sistema de transferencias internacionales.

Así las cosas, la prueba obtenida sin ningún contrato de corresponsalía entre los bancos, y sin el levantamiento del secreto bancario hace que la información obtenida sea ilícita e inutilizable como prueba en el proceso penal bajo examen. Se aplican además, los efectos ya considerados, del recurso planteado por los justiciables [Nombre001], [Nombre009], [Nombre015] y [Nombre021]. (Recurso visible a folios 17264 a 17278 del Tomo XXXVI), plantean en su libelo, autenticado por el licenciado José Miguel Villalobos Umaña, la nulidad de la prueba 588. Este recurso fue analizado con ocasión del estudio de la impugnación de los licenciados Erick Ramos y Federico Morales a favor de don [Nombre015]. Como se dijo allí, los argumentos para analizar este problema jurídico ya han sido explicitados más atrás, al resolver el recurso planteado por el Dr. [Nombre012] (A-1). Así las cosas, corresponde aplicar al justiciable [Nombre021], los mismos efectos que esta determinación tuvo para el justiciable [Nombre012], se declara la nulidad de la prueba documental No. 588 y todos los elementos probatorios que de esta dependen, se declara la nulidad de la sentencia condenatoria penal dictada en contra [Nombre021] y en su lugar se le absuelve directamente de toda pena y responsabilidad.

Sección Segunda. Vicios en cuanto a la determinación del hecho y la valoración de la prueba para determinar los indicios que condujeron a la condena por el delito de Enriquecimiento Ilícito. A. Ausencia de la determinación circunstanciada del hecho que el tribunal estima acreditado, en violación al artículo 369 inciso b del CPP. Alega el acusado que se le ha atribuido un enriquecimiento ilícito por recepción de dádivas. Para la sentencia, en el Considerando X, folios 1555 in fine y siguientes, se le ofrece al encartado una dádiva y posteriormente se le paga. Al respecto, cuestiona que se haga la atribución de un ofrecimiento de dádiva, cuando dicho requerimiento es indiferente para el tipo penal de Enriquecimiento Ilícito. En realidad, se pune la recepción de la dádiva. El ofrecimiento o promesa de dádiva no tiene interés para la prohibición penal en lo que a ese tipo penal en concreto se refiere, lo tiene, por supuesto, para tipos penales diferentes, donde la oferta de la dádiva es un requerimiento del tipo objetivo.

El motivo debe declararse con lugar. El planteamiento general del recurso en relación al acusado [Nombre021], en cuanto a los motivos cuarto, quinto y sexto parte de dos premisas esenciales: por un lado se ha acusado y demostrado, dice el Tribunal, un ofrecimiento de dádiva y una aceptación de la misma por parte de [Nombre021]. El tribunal insiste, entonces, en una promesa remuneratoria que se da en una reunión en el Café Ánfora del Hotel San José Palacio, a las 8:21 hrs. del 17 de agosto. En segundo lugar, que el artículo 346, inciso c) del Código Penal exige que la entrega de dádivas se produzca mientras se permanece en el cargo, al respecto se discute, no sólo, la entrega fraccionada, sino el tanto de cinco entregas de dinero en momentos en que [Nombre021] no ocupaba cargo público alguno. Al respecto, lleva razón el impugnante, la determinación del hecho parte de una premisa equivocada, esto es que la recepción de la eventual dádiva haya requerido previamente su ofrecimiento.

Esto último, en virtud principalmente de la condena que se hace por el enriquecimiento ilícito, que es una criminalidad que no tiene ninguna vinculación, y no debería tenerla, con el ofrecimiento de una dádiva, esto es, de una promesa remuneratoria. La oferta de una dádiva es central, por ejemplo, para el delito de Cohecho y para el de Corrupción, pues en estos delitos la recepción de una dádiva o la aceptación de una promesa remuneratoria va directamente dirigida para hacer un acto propio de sus funciones (cohecho impropio, artículo 347 del Código Penal) o para hacer un acto contrario a sus deberes o para no hacer o para retardar un acto propio de sus funciones (cohecho propio, artículo 348 del Código Penal). Así las cosas, cuando la acción incriminada no requiere un específico hacer o no hacer, se estaría en presencia de un mero acto de enriquecimiento ilícito. Ahora bien, la imputación de hechos previos a la recepción de las dádivas se alcanza con el objetivo de vincular, específicamente, a [Nombre021] espacio-temporalmente con las supuestas estrategias dirigidas a alcanzar el contrato de las 400 mil líneas, donde la intervención de [Nombre021] podría haber sido de marginal o de escaso interés.

En todo caso, no se determina qué hizo o qué dejó de hacer, tan solo se trata de establecer responsabilidad de [Nombre021] a partir de una reunión, que como ya se ha discutido y analizado al resolver los recursos precedentes, se comprueba con un voucher de servicios de restaurant en el Hotel San José Palacio. Este documento no permite derivar el contenido de lo conversado en esa ocasión, y si, en efecto, hubo una efectiva promesa de dádiva. Hechos anteriores y posteriores a esa reunión no permiten derivar, con la certeza necesaria para una sentencia condenatoria, que, en efecto, haya habido una promesa antijurídica que haya sido aceptada por los que allí participaron. Mucho menos hay prueba consistente que [Nombre021] haya aceptado una dádiva que se entregaría de manera fraccionada, que es el otro elemento de análisis que hay que tener en cuenta. Según se analiza en el recurso, habría que valorar, adicionalmente, si la sola recepción de la dádiva es un indicio de haberla aceptado, como parece derivar el Tribunal de Juicio.

De la manera en que está construido el tipo penal del Enriquecimiento Ilícito en el Código Penal no requiere una promesa previa, esto por cuanto se trata de una figura subsidiaria que entra en aplicación, cuando precisamente no hay prueba de un delito contra los deberes de la función pública. Razones de orden político criminal llevaron a introducir la figura del enriquecimiento ilícito en el ordenamiento para punir aquellos casos de acrecimiento patrimonial del funcionario donde no hay prueba del delito contra los deberes de la función pública que haya motivado ese aumento. Se trata de una estrategia jurídica para impedir la impunidad de estos aumentos patrimoniales y llevar a la justicia a los funcionarios que los ostentan. De allí el carácter subsidiario de esta figura, que quedaría desplazada, entonces, cuando haya prueba suficiente de la comisión de un delito contra los deberes de la función pública.

En el caso de la figura penal contemplada en el Código Penal costarricense, la subsidiariedad existe cuando haya demostración del cohecho propio o impropio. No es el caso de los hechos imputados a [Nombre021]. En el Considerando X-D se plantea el tema de la recepción del pago fraccionado de la dádiva. Según las circunstancias que estiman probadas las juezas del voto de mayoría, habría habido un ofrecimiento del 0.5% del contrato que se obtuviera (folio 1570 del fallo), del cual no hay una determinación específica en el fallo del por qué se deriva este específico porcentaje, pero se estima que ese mismo día se aceptó el pago fraccionado de ese 0.5%. Este énfasis es innecesario, puesto que el tipo penal atribuido a [Nombre021] no requiere que haya una promesa previa. No obstante, según el fallo, no sólo se dio en dicha reunión la promesa de dádiva sino que [Nombre021] la aceptó, aun no se sabe a cambio de qué.

La deducción se produce no sólo, dicen las juezas, de los hechos acaecidos antes sino también por los posteriores. Al respecto no hay ninguna prueba, nadie manifestó qué se dijo en esa reunión, la cual pudo versar sobre cualquier otro tema, pero hay un convencimiento fijo del voto de mayoría. Esta circunstancia afecta el derecho de defensa del encartado, no sólo porque tuvo que defenderse de una circunstancia que es ajena a la tipicidad atribuida, esto es, de la promesa remuneratoria, cuando, del otro lado, el contexto típico reprochado lo es por recibir la dádiva. Es por ello, que la fijación de hechos en relación al hecho típico del Enriquecimiento Ilícito tenga falencias, y provoque, por estas razones, también, la nulidad del fallo en su contra. B. Las dádivas fueron recibidas cuando [Nombre021] no ostentaba el carácter de funcionario público. Al respecto de este tema hay dos reclamos, por un lado que haya habido una aceptación de una dádiva pagada de manera fraccionada, es decir, que la recepción de la dádiva es fraccionada.

El tipo penal del artículo 346, inciso c) requiere que se admitan dádivas, mientras se permanece en el ejercicio del cargo. Está probado que [Nombre021] dejó de ser diputado el 30 de abril de 2002, y por ello, los dineros recibidos fuera de esa fecha no estarían cubiertos por la prohibición penal. Habría problema, por lo menos, con los certificados de depósito recibidos en el mes de enero de 2002, cuando [Nombre021] era todavía diputado. Pero el motivo se refiere, por el momento, a las transferencias y presuntas dádivas giradas con posterioridad al día 30 de abril de 2002. La estrategia de la sentencia condenatoria sería vincular a [Nombre021] con los pagos posteriores al 30 de abril de 2002 como enriquecimiento ilícito, tan solo porque los “aceptó” siendo diputado. En otras palabras, [Nombre021], desde que era diputado aceptó dádivas que se pagarían en tractos que se extenderían más allá de su periodo como legislador.

La tesis cae por su propio peso, y afecta la fijación del hecho del que se le acusa, principalmente, porque dicha configuración del tipo penal de Enriquecimiento Ilícito no requiere, y no podría hacerlo, la promesa previa, y, por otra parte, no hay prueba, tampoco, de que dicha promesa se haya verificado, pues los elementos indiciarios al respecto son endebles, anfibológicos y no resisten un análisis desde la sana crítica. Es por ello, que también por esta razón la sentencia debe ser anulada. Ahora bien, respecto a los pagos recibidos cuando [Nombre021] era todavía diputado, se pronuncia el octavo motivo del recurso del justiciable, donde se alega ERRÓNEA VALORACIÓN DE LA PRUEBA CON VIOLACIÓN A LAS REGLAS DE LA SANA CRÍTICA INFRINGIENDO LOS ARTÍCULOS 142, 184 Y 369 INCISO D) DEL CPP. Critica, en primer lugar, que se trate de seis certificados que se hayan entregado a [Nombre021]. El Considerando X-D se refiere a la que denomina segunda entrega de la dádiva a [Nombre021].

Incorpora en sus razonamientos el voto de mayoría la tesis de que [Nombre021] recibió seis certificados de inversión por parte de ALCATEL mediante entrega que le hace la empresa Servicios Notariales QC. El recurrente insiste en que hay un error en el que incurre la sentencia, pues no son seis certificados como se dice al folio 1579, se trata, en realidad, de cuatro documentos, cuya numeración consta al folio 1580. Todos fueron emitidos el 10 de enero del 2002 con fecha de vencimiento al 11 de febrero del mismo año y adquiridos por la empresa QC del Banco Cuscatlán de Costa Rica por la suma de diez mil dólares cada uno. Al Folio 1580 expresan las Juezas que esos títulos fueron entregados por el acusado [Nombre009] al imputado [Nombre021] y que éste último los admitió de aquél el 11 de febrero, fecha de su vencimiento y de inmediato los endosó y depositó en su cuenta del BAC San José. Remiten las Juezas a la prueba 417, la cual solo demuestra que [Nombre021] endosó los títulos y los depositó en su cuenta, pero de ninguna manera comprueba que [Nombre009] se los haya entregado ni la fecha en que ocurre tal evento y ello hace el razonamiento nulo por irracional y contrario a las reglas de la sana crítica.

Se trata de títulos al portador, que circulan mediante la simple entrega y cuya transferencia se produce sin necesidad de endoso al dorso del documento, al tenor del Artículo 712 del Código de Comercio. Según esta tesis, entonces, los títulos fueron trasladados por simple tradición, por lo que no consta el título de su poseedor, lo que hace, por ejemplo, que el título no pueda ser reponible en caso de pérdida, como una de las reglas generales derivadas del artículo 712 del Código de Comercio. Es por ello que no puede hacerse constar que hayan sido recibidos directamente de [Nombre009], como pretenden sostener las juezas. Hay un periodo de un mes que transcurre entre que [Nombre009] retira los títulos y los deposita en su cuenta, por lo que es posible que [Nombre009] se los haya entregado a cualquier otra persona, ésta a su vez a otra y luego esta otra los hiciera llegar a [Nombre021], sin que por ello se pueda presumir que [Nombre009] se los dio directamente a [Nombre021].

El impugnante cuestiona el criterio jurídico expresado por las juezas, al citar el Artículo 717 del Código de Comercio, el cual fue derogado hace 21 años, desde 1990 por la Ley 7201. Este artículo tan solo hacía referencia a que el título pertenece a quien lo tiene en su posesión, lo que nadie ha cuestionado. Y que aquí se presume la buena fe y el justo título, como corresponde en aplicación del principio que rige en materia de bienes muebles. Pero de esta norma no se deriva, sugiere el recurrente, que deba tenerse que el adquirente inicial es quien debe haber entrega el título al depositante. Cuestiona también el conocimiento que de derecho comercial tienen las juezas cuando sostienen que "... la ausencia de una cadena de transmitentes determina que el título fue transferido de quien lo originó a quien figura como su titular ante el cajero o respectivo funcionario de la entidad bancaria, por lo que en el caso concreto, se infiere que de [Nombre009] pasó a [Nombre021]”.

En otras palabras, como no se logra constatar una cadena de transmitentes, debe suponerse que es el adquirente original quien se lo entregó al poseedor final. Esto no es así, plantea el impugnante, y esto solo es cierto en los títulos nominativos, que se transmiten por endoso y no en los títulos al portador, como eran los que se analizan. Sobre esto explica: “…Es que lo propio es que en estos títulos esté ausente la cadena de transmitentes, por ello es que se trata de un título al portador, por lo que lo que echa en falta la pareja de Juezas es lo que ocurre siempre en esta materia, que no hay cadena de transmitentes porque lo documentos no se endosan. Por ello no se puede deducir de lo anterior que haya sido [Nombre009] quien le entregó los documentos a [Nombre021]. Pero también erran las Juezas cuando señalan que como los títulos tienen una leyenda al dorso que expresa que solo se pueden depositar en la cuenta de [Nombre021], ello evidencia que se los entregó [Nombre009].

No tiene nada que ver una cosa con la otra [Nombre021] recibe los títulos de una persona no determinada y endosa los documentos con esa leyenda para depositarlos en su cuenta, sin que refiera para nada tal situación con la participación de [Nombre009]…”. En general, cuestiona toda la deducción judicial que el depósito haya provenido de [Nombre009], considerando un disparate que se suponga porque el depósito se hizo a la misma cuenta de otras transferencias, entonces, por ello, el depositante tiene que haber sido [Nombre009]. Reputa que esta conclusión desafía las reglas del correcto entendimiento humano y las reglas del derecho comercial. Estima, al no poderse presumir que el depósito lo haya hecho [Nombre009], entonces esa adquisición debe tenerse como legítima y jurídicamente correcta, por lo que la conducta sería impune. En otras palabras, las entregas que se hicieron cuando aún era diputado, a raíz de esta incertidumbre sobre la recepción de los títulos y su canal de entrega, llevarían también a la nulidad del fallo, como de hecho debe declararse.

En efecto, la norma citada, el artículo 717 del Código de Comercio fue derogada, junto a otros artículos del Código de Comercio, mediante Ley No. 7021 de 10 de octubre de 1990. En cuanto a la transmisión de los títulos al portador, es claro que esto se hace por simple tradición, en el sentido que no se necesita un endoso previo, como sí lo es en el caso de los títulos nominativos. Así las cosas, en los títulos al portador, basta la entrega material para que se produzca su transmisión. La ausencia de una cadena de transmitentes se explica entonces en el hecho de que los títulos al portador no requieren que se expidan a favor de persona determinada (artículo 712 del Código de Comercio) y porque su transmisión es por simple tradición, aun cuando no contengan la cláusula “al portador”. La jurisprudencia civil (cfr. Voto 19-88 de la Sala Primera de la Corte Suprema de Justicia, de las trece horas del 11 de mayo de 1988) ha dicho que la tradición, como entrega de la cosa, no transfiere el dominio por sí sola, pues aun es necesario que la entrega sea el resultado de un negocio jurídico que produzca esos efectos.

Es aquí donde surge la duda relevante a favor del justiciable, sobre la razón de dicha tradición o entrega material de los documentos que se le entregaron, pues como ha venido planteándose a lo largo de esta resolución, existe una duda razonable sobre las razones de la entrega de los documentos. La duda planteada sobre la conexión entre el encartado [Nombre009] y la entrega de los documentos a [Nombre021] se sostiene, pues, en estas dos circunstancias planteadas por los recurrentes, por un lado la expresión “simple tradición” del artículo 712 del Código de Comercio que debiera ser entendida en el sentido de que no se necesita el previo endoso, que sí es necesario como “título” para la transmisión de los títulos nominativos. Para los documentos al portador, por lo tanto, basta con la entrega material y esto realiza el cumplimiento de este hecho jurídico contemplado en la norma. La ausencia de una cadena de adquirentes que la norma comercial no exige, y la incerteza de la razón jurídica de las entregas de los documentos, operan también a favor del justiciable y así debe ser declarado.

C. Se aplicó un tipo penal derogado. El noveno motivo del recurso de [Nombre021] discute la vigencia del tipo penal aplicado en la especie para condenarlo por la conducta de Enriquecimiento Ilícito. Según la tesis de [Nombre021], el artículo 346, inciso

• 3)del Código Penal fue derogado tácitamente por el artículo 32 de la Ley 6872 del 17 de junio de 1983, denominada Ley sobre Enriquecimiento Ilícito de los Servidores Públicos. Según ello, la legislación de 1983 sería ley especial sobre la regulación general del Código Penal, por lo que derogaría los tipos penales que hubieren estado recogidos en dicho Código y que formen parte de la nueva legislación. El artículo 26 de esta ley de 1983 tiene varios elementos especializantes. En primer lugar, la pena que va de seis meses a seis años, y, en segundo lugar, que amenazaba con pena los actos realizados por el ex funcionario dentro del año siguiente a la cesación en el cargo. El artículo 26, a todas luces, es mucho más específico y contiene elementos que abarcan conductas más variadas, considerando enriquecimiento ilícito, no sólo la adquisión de bienes de cualquier índole o naturaleza, y una disposición genérica que absorbe toda recepción de dineros o bienes. El motivo debe declararse con lugar. Es evidente que la disposición penal del artículo 346 del Código Penal quedó derogada por el artículo 26 de la Ley del año 1983, que no sólo contiene una descripción de la acción de Enriquecimiento Ilícito, sino que agrega circunstancias especializantes que permiten abarcar más conductas de recepción de bienes, servicios, dineros, etc., que son amenazadas con una pena mayor. No se trata, como lo dice el Tribunal de Mayoría de dos conductas distintas que pueden coexistir porque abarcan supuestos típicos distintos, se trata de dos figuras de Enriquecimiento Ilícito, donde una de ellas es general y la otra es especial, contemplada en una ley posterior, que conforme a las reglas de interpretación penal derogaría la ley general, y obliga a aplicar la ley especial. La propia Sala Constitucional, en su Voto No. 11584-2001, consideró que algunos de los incisos del artículo 346 quedaron derogados por la Ley No. 6872 de 1983, y que debería constatarse expresamente por los jueces, en cada caso, la aplicación o no de dichos incisos, como de hecho se hace ahora al calificar el tipo penal 346 del Código Penal derogado e inaplicable a la causa contra [Nombre021]. Ahora bien, interpretado como ha sido que el aplicable es el artículo 26 de la Ley No. 6872 de 1983, debe tenerse en cuenta que los incisos a) y c) de ese tipo penal fueron declarados inconstitucionales por la Sala Constitucional en el Voto No. 1707-95 de las 15:39 horas del 28 de marzo de 1995, y por ello no serían aplicables a la especie y las acciones de [Nombre021] devendrían en atípicas. No es sino a partir de la entrada en vigencia del Artículo 45 de la Ley 8422 del 6 de octubre del 2004, vigente a partir del 29 de ese mes, en que se tipifica nuevamente el acrecimiento del patrimonio en el ejercicio del cargo, lo que no es aplicable a los hechos acusados por tratarse de una norma de fondo vigente con posterioridad a aquellos, al tenor del Artículo 11 del Código Penal. Siendo así, el tipo penal por el que se acusa el Enriquecimiento Ilícito está derogado y por ello corresponde anular el fallo condenatorio y absolver de toda pena y responsabilidad a [Nombre021] de los hechos que se le imputan. No obstante, existe otra razón, alegada en el décimo motivo del recurso, que produce la nulidad de la sentencia, por haber una aplicación del artículo 346, inciso
• 3)en violación a la interpretación vinculante de la Sala Constitucional. Si se considerara vigente este artículo, que no lo está, en virtud de los razonamientos precedentes, entonces debe interpretarse el citado inciso conforme a los precedentes erga omnes de la Sala Constitucional, conforme lo exige el artículo 13 de la Ley de la Jurisdicción Constitucional. Según lo estatuye el inciso
• 3)del citado artículo 346 del Código Penal cualquier dádiva presentada u ofrecida en consideración al oficio del funcionario deviene en ilícita, aunque aquel no haya realizado acción alguna lícita o ilícita, propia o contraria a sus funciones. La sola recepción de la dádiva ya es delictiva. Ya la Sala Constitucional desde el voto 1707-95 señalado, en su Considerando III, exigió que el órgano acusador debe demostrar la procedencia ilícita del patrimonio del servidor público y que no basta con probar la recepción de los dineros y menos obligar al imputado a demostrar su licitud. Para ello la Sala se basó en lo explicado en el Voto 5171-93 y lo sostuvo sin duda alguna, por lo que declaró inconstitucionales las normas de la Ley 6872 que habían sustituido el delito del enriquecimiento ilícito. Pero más clara aún fue la Sala Constitucional en su Voto 11584-01 de las 8:53 horas del 9 de noviembre del 2001, cuando conoció mediante una consulta legislativa facultativa del proyecto de Ley contra la Corrupción que dio origen a la Ley 8422. Al final del Considerando IV expresa la Sala, en redacción del Magistrado Arguedas Ramírez, que se viola la Constitución al pretender penalizar al funcionario por el solo incremento del patrimonio SIN DEMOSTRARSE QUE DICHO INCREMENTO TENGA UN NEXO CON UNA ACTIVIDAD ILÍCITA, infringiendo entonces el principio de inocencia al obligarlo indirectamente a probar el origen de sus bienes. En este aspecto, también debe declararse con lugar el recurso planteado. No basta con demostrar que el patrimonio del funcionario se ha incrementado, sino que hay que demostrar que el citado aumento fue producto de una actividad ilícita, porque de lo contrario habría una inversión de la carga de la prueba, y tendría que ser el funcionario quien tenga que demostrar el origen del citado incremento patrimonial. Sostener que esto es posible va en directa contradicción con los precedentes citados por el recurrente de la Sala Constitucional, y provoca otra razón más para producir la nulidad del fallo. D. El comiso decretado del CERTIFICADO NÚMERO [Valor026] RENOVADO EN EL [Valor027] SIN FUNDAMENTO NI RAZONAMIENTO NI SUSTENTO ALGUNO, no es válido. [Nombre021] critica el comiso del certificado NÚMERO [Valor026] RENOVADO EN EL [Valor027], pues el tribunal no fundamenta ni el por qué del comiso ni de la relación causal con el hecho. No basta, dice, que se mencione la literalidad del artículo 110 del Código Penal para dar por correcta la fundamentación a este respecto. Se debe comisión del hecho o si son efectos o ganancias del mismo. Tan solo a folios a folios 1896 al 1898 se resuelven las solicitudes de comiso que hacen en sus conclusiones tanto el Ministerio Público como la Procuraduría General de la República. Se incluye en el punto 9 un certificado de depósito a plazo con el número [Valor027], que ni se describe ni se indica su naturaleza y razón. Al inicio del folio 1897 se resume la tesis de mayoría y se indica que se pasan a comiso los efectos del delito, los medios o instrumentos utilizados en su preparación y ejecución y las ganancias derivadas de su comisión, lo que no es más que la reiteración de lo señalado por el Artículo 110 del Código Penal. Todo ella deja sin motivación un aspecto importante de la sentencia y deja sin posibilidad de saber cuál es el criterio por el que se decidió que pasara ese certificado a comiso. Lleva razón en su reclamo, debe anularse el comiso dictado. Ya se ha dicho que la sola mención del artículo 110 del Código Penal no es fundamentación suficiente para establecer el comiso de bienes a favor del Estado. Es por ello que corresponde anular la decisión de las Juezas de mayoría y resolver que ese comiso es improcedente y ordenar la devolución de la suma correspondiente a su legítimo propietario. F. No hay mención sobre el tema de las acciones civiles y sobre la condenatoria en costas a los actores civiles. Se acusa que no se rechazan las acciones civiles resarcitorias y generosamente se dirige a las partes a la vía civil ordinaria para que diriman sus pretensiones a este respecto. Indica que los defensores se opusieron a las acciones civiles planteadas por las instituciones públicas, en especial, en cuanto al justiciable [Nombre021]. A pesar de que la acción civil del ICE se dice que carece de base fáctica que sustente sus pretensiones, lo que además impide al tribunal pronunciarse sobre el fondo de la misma (cfr. fl. 1862). Los vicios de la acción civil en cuanto al impugnante se hacen ver al folio 1877. Considera que lo correcto conforme a derecho hubiera sido el rechazo de la acción civil y la condenatoria en costas, y no interpretar que había una salida jurídica para permitir el planteamiento de la acción en la vía ordinaria. En cuanto a la acción civil de la Procuraduría General, el tribunal incluso indica al Folio 1884 que “... se llega a la conclusión de que no existe un daño social por el cual deben responder solidariamente todos los imputados y eventualmente terceros.’’ Más adelante se agregan otros errores de esa acción, tales como que el Tribunal casi debería hacer el trabajo del actor civil, para lo cual son absolutamente claros los Folios 1887 y el párrafo final del 1890. Reclama, si tales son los yerros, lo correspondiente sería el rechazo de la acción y condenar en costas, pero el Tribunal prefiere “tender la mano” a los actores civiles. Solicita, en consecuencia, se anule esa resolución y se tenga por rechazadas ambas acciones civiles, por no reunir los requisitos mínimos para su consideración. Insiste que lo correspondiente en el presente caso es la condenatoria en costas a los actores civiles en aplicación del artículo 270 del Código Procesal Penal, en virtud de los múltiples errores y vicios que los mismos jueces reconocen existen en sus gestiones. Adicionalmente a ello, subraya que el tribunal incumple su deber legal en cuanto a lo establecido en la ley, pues por más que se diga que la causa es compleja, tampoco se puede culpar a los demandados civiles coadyuvaron en el fracaso de las acciones por no haber advertido de esos errores oportunamente, cuando esa no era su tarea. Considera que en un Estado de Derecho no se puede permitir una demanda por millones de dólares, llena de devaneos y errores legales, y dejar que todo ocurra sin consecuencias. Si así se hiciera, no habría forma de condenar en costas a los actores civiles, cualquiera sea su comportamiento. Si se trata de causas complejas, como la presente, más cuidado deben tener los actores civiles a la hora de presentar sus reclamos y de gestionar judicialmente. Es evidente que se debieron rechazar las acciones civiles y no solo omitir el pronunciamiento sobre ellas, como se indicó en el punto anterior. Solicita se anule la exención de costas a los actores civiles y se les condene en este rubro conforme lo ordena la legislación correspondiente. El tema de la condenatoria en costas y el tema de las acciones civiles debe ser dilucidado en un nuevo juicio a este respecto. Esta Cámara ya se pronunció sobre el tema de las acciones civiles resarcitorias, la ausencia de condenatoria en costas y la interpretación que hace el tribunal de mayoría en torno a este tema, al momento de resolver el recurso de Christian Arguedas a favor del Dr. [Nombre012]. Se consideró que lo resuelto sobre el tema fue una clarísima denegación de acceso a la justicia basado e formalismos que no tienen asidero en el artículo 112 inciso d) del Código Procesal Penal, error que habrá de enmendarse. También habrá de enmendarse la falta de resolución sobre el fondo de las acciones civiles incoadas por el Instituto Costarricense de Electricidad y la Procuraduría General de la República. De igual manera, en un juicio de reenvío habrá de decidirse sobre el tema de costas, y sobre si había o no razón plausible para litigar: el no decidir sobre el fondo de las acciones civiles provocó un error que incide en la definición sobre el tema de costas, lo que sin duda causa agravio a las partes. Es por ello, que al resolver sobre el recurso del licenciado Arguedas, se consideró que los efectos de su impugnación favorece a los demás codemandados civiles, ya que no se basa en motivos exclusivamente personales. Es por ello que ya se ha anulado la sentencia en su aspecto civil, en cuanto dispuso omitir pronunciamiento en cuanto al derecho de fondo discutido en relación a las acciones civiles interpuestas, así como lo resuelto sobre costas y se ordena el reenvío del proceso al competente para la nueva substanciación de esos extremos.

XIII.SE RESUELVE EL RECURSO DE APELACIÓN PLANTEADO POR EL LICENCIADO HUGO SANTAMARÍA LAMICQ A FAVOR DEL IMPUTADO [Nombre018] (Q.E.P.D). A. El licenciado Hugo Santamaría Lamicq, en su condición de defensor del encartado [Nombre018] (q.e.p.d.) presentó recurso de casación en contra de la sentencia Nº 167-2011, de las 15:00 horas del 27 de abril de 2011, dictada por el Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José, tanto en el aspecto penal como del civil. Como motivos por la condena penal invocó la violación al debido proceso y falta de fundamentación de la sentencia, por incorporación de prueba ilícita; inobservancia del principio in dubio pro reo, así como violación a las reglas de la sana crítica; fundamentación ilegítima por ausencia de valoración de elementos de valor decisivo para la solución del caso; errónea aplicación de los artículos 345 y 341 del Código Penal, con violación de los numerales 2 de la Ley Orgánica del Poder Judicial y el 39, 41, 46 in fine y 154 de la Constitución Política; falta de fundamentación de la pena impuesta y lesión al principio de proporcionalidad; también la falta de fundamentación respecto a la condenatoria en costas personales.

Respecto a la condena civil, como único motivo de impugnación acusa: “Falta de fundamentación de la sentencia. Omisión ilegal de pronunciamiento respecto a la acción civil resarcitoria por la Procuraduría General de la República. Violación del Principio de Congruencia por Citra Petita. Violación del debido proceso y principios de tutela judicial efectiva y acceso a la justicia. Violación de los artículos 1, 142, 184, 361, 363, 369 del Código Procesal Penal, artículos 2, 5, 152, 153 de la Ley Orgánica del Poder Judicial; 39 y 41 de la Constitución Política, 155, 277 del Código Procesal Civil” (Cfr. folio 17048 vto. Y 17049 fte.) Explica que el tribunal de juicio omitió pronunciamiento sobre la acción civil resarcitoria formulada por la Procuraduría General de la República en contra de su representado, con los siguientes argumentos: (i) No todos los imputados habían participado de los hechos delictivos acusados.

(ii) Por ende, no hay un daño por el cual deban responder de forma solidaria todos los encartados y eventualmente terceros. (iii) Era necesario concretar los daños y las pretensiones por cada “grupo de obligados solidarios” (según determinación efectuada en sentencia); y no como se hizo, dando una estimación global y la solicitud de condena, como si todos los justiciables y las personas jurídicas involucradas, fueran deudores solidarios de un daño total. (iv) La Procuraduría General de la República al reclamar el daño social no podía exigir la responsabilidad solidaria total de todos los demandados civiles sin diferenciar cada caso, entre los diversos grupos de deudores solidarios. (v) Un pronunciamiento sobre el particular, obligaba al Tribunal a disgregar los distintos grupos de deudores solidarios, para concretar los hechos atribuidos y por ende, el daño que pudieron causar al Instituto Costarricense de Electricidad, y a los intereses colectivos y difusos representados por la Procuraduría General de la República.

Tarea que de ejecutarse por el Tribunal, le involucraba en labores propias de la parte actora civil, comprometiendo la objetividad de los juzgadores y vulnerando el debido proceso. (vi) Las partes demandadas civiles no alegaron los defectos de la acción civil en etapas previas, con lo cual, tienen una cuota de responsabilidad en la imposibilidad del Tribunal, para pronunciarse sobre el fondo de las alegaciones, pretensiones y excepciones formuladas. (vii) Acusa la existencia de una actividad procesal defectuosa, sin que sea posible su saneamiento. Señala el gestionante, que de existir un defecto en las pretensiones de la acción civil, no es admisible esperar que el demandado civil alerte sobre ello y, por el contrario, si la parte actora civil actúo deficientemente, es su responsabilidad; lo anterior, conforme lo ordena el principio dispositivo y sus corolarios, los subprincipios de disponibilidad del interesado, de iniciativa de parte, de congruencia y de renuncia.

En cuanto a la solidaridad pasiva y la determinación de la procedencia de las pretensiones del actor “… es claro que se trata de aspectos de índole sustantivo que deben determinar en definitiva los Juzgadores, acorde con los hechos tenidos por acreditados en la causa y no un defecto formal relativo a la admisión o tramitación de la acción civil que debiera ser prevenido conforme las reglas de saneamiento en el numeral 15 del Código Penal de Rito”. (Cfr. folio 17052). Más adelante agrega: “Si de acuerdo con los hechos tenidos por acreditados por el tribunal sentenciador ‘no existe un daño por el cual responder solidariamente todos los imputados y eventualmente terceros’ y se determina que la Procuraduría General de la República ‘no podía exigir una responsabilidad solidaria total a todos los demandandos civiles, sin diferenciar, como correspondía en este caso, entre los diferentes grupos de deudores’, es cierto que no le corresponde al tribunal de ninguna forma ‘disgregar los diferentes grupos de deudores solidarios, determinar los hechos concretos que le son atribuibles y determinar el eventual daño que esos hechos pudieron haber causado’.

Y efectivamente no puede realizarlo en virtud del principio de congruencia, del principio dispositivo y por respeto al derecho de defensa del demandado civil. Desde esta perspectiva y teniendo claro que los ‘defectos’ señalados por el tribunal son de índole sustantivo, debió el tribunal resolver conforme los elementos constantes en definitiva lo relativo a las pretensiones civiles” (Cfr. folio 17052). Cuestiona el criterio expuesto por el tribunal, pues estima que defectos de tipo sustancial como los invocados, no podían ser sometidos al saneamiento y, por el contrario, la situación descrita por el tribunal les obligaba a pronunciarse sobre el fondo de las acciones civiles formuladas y agrega: “… el tribunal deberá fallar de conformidad con lo alegado y probado por las partes: El juez no conoce otros hechos fuera de los que las partes invocan, no otras pruebas que las que estas presentan.

Su sentencia debe fijarse dentro de los límites de las pretensiones deducidas por el actor y aquello que conoce o controvierte el demandado; si va más allá será ultra petita si resuelve más de lo pedido o extra petita si resuelve fuera de lo pedido, y ambas hipótesis producen la nulidad del fallo por atentar el principio dispositivo al resultar sentencias incongruentes. Por eso a esta característica se le ha llamado ‘principio de congruencia’ de las sentencias, y de acuerdo con él, el tribunal debe resolver todo lo que las partes pidan, pero no más ni menos…” (Cfr. folio 17054) Indica que aunado a la incongruencia por extra o ultra petita existe la incongruencia por citra petita (o mínima petita), al dejar de resolverse uno de los puntos solicitados, en infracción de lo establecido en el artículo 155 del Código Procesal Civil, que dispone: “las sentencias deberán resolver todos y cada uno de los puntos que hayan sido objeto del debate…”; como también lo regula el artículo 361 inciso e) del Código Procesal Penal, en lo relativo a la deliberación y votación.

Todo lo cual genera un vicio en el pronunciamiento, conforme se establece en el artículo 369 inciso g) en relación con el 361 inciso e) y 363 del Código Procesal Penal. Por ende, el tribunal debió resolver y en vista de los yerros cometidos, declarar sin lugar la acción civil incoada, debiendo el promoverte asumir las consecuencias de su actuar negligente. Explica que como efecto de la solicitud presentada por la parte, se ordenó el embargo preventivo de bienes propiedad de [Nombre018], en concreto, la Finca inscrita en el Registro Público de la Propiedad, Provincia de San José, número [Valor052], vehículos placas [Valor053], [Valor054], [Valor055] y [Valor056]. Todo lo cual le provocó daños y perjuicios, dada la inmovilización de su patrimonio y la imposibilidad de disponer libremente de sus bienes. Además, la declaratoria sin lugar de las pretensiones civiles debió generar la condena de daños y perjuicios al promoverte.

Refiere: “La ilegal maniobra realizada por el tribunal respecto al no pronunciamiento por el fondo respecto a la acción civil resarcitoria, tiene como objetivo y consecuencia el rechazo de la condenatoria por daños y perjuicios evidentemente procedente. Así, aunque se ordena el levantamiento de los embargos, dispone el tribunal que ‘al haberse omitido pronunciamiento respecto del fondo de las acciones civiles y las pretensiones formuladas, no se ha desechado definitivamente la demanda, que es el presupuesto normativo para la procedencia de la condena en daños y perjuicios y por el contrario, las partes podrán dirimir sus diferencias en la vía civil, de manera que no se da un ajuste pleno entre lo dispuesto por el numeral 277 del Código Procesal Civil y la situación que se presenta este proceso, sin que sea posible extender los alcances del numeral 277 del Código Procesal Civil por la vía interpretativa, porque ello implicaría una interpretación extensiva de una norma punitiva’.

La ilegal remisión a otra jurisdicción evita el justo resarcimiento ordenado por la ley procesal en razón de la afectación patrimonial señalada. De esta forma el tribunal deliberamente libera ilegalmente al actor civil de indemnizar los daños y perjuicios ocasionados dejando a su arbitrio acudir a otra vía o no hacerlo, imposibilitando el resarcimiento procedente.” (Cfr. folios 17057 y 17058). Solicita revocar la sentencia impugnada en este extremo y declarar sin lugar el acción civil resarcitoria presentada en contra de [Nombre018] (q.e.p.d) y se condena a la Procuraduría General de la República al pago de los daños y perjuicios ocasionados en razón del embargo preventivo ordenado. Subsidiariamente, se anule la sentencia en este aspecto y se ordene reenvío de la causa. B. Posteriormente, ante el fallecimiento del encartado [Nombre018] (q.e.p.d), el licenciado Hugo Santamaría Lamicq, solicita se dicte sentencia de sobreseimiento definitivo a favor de su representado (cfr. folios 171948 y 171949, 171980, 173380 a 173382).

Explica el gestionante que el encartado [Nombre018] falleció a las 23:20 horas del 17 de noviembre de 2011, como consta en Certificado de Declaración de Defunción número 118392 (que adjunta), por ende, lo procedente es dictar sentencia de sobreseimiento definitivo por extinción de la acción penal pues el fallo Nº 167-2011 dictado por el Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José, al presentarse el recurso de casación en su contra, no se encuentra firme. Lo anterior, conforme lo dispone el artículo 30 inciso a) en relación con el 311 inciso d) del Código Procesal Penal. En cuanto a la acción civil resarcitoria refiere que al no poder subsistir la misma en aplicación del principio de accesoriedad, solicita el levantamiento inmediato de los embargos gestionados por la Procuraduría General de la República, sobre la finca inscrita en el Registro Público de la Propiedad, provincia de San José, numero [Valor052] y los vehículos placas [Valor053], [Valor054] y [Valor056].

Aunado a ello, solicita se ordene la cancelación de la hipoteca otorgada en razón de una medida cautelar insubsistente hoy día, agrega: "Por resolución de dieciséis horas con veinte minutos del ocho de noviembre de 2004 del Juzgado Penal del Segundo Circuito Judicial de San José, se impuso a mi defendido entre otras medidas cautelares la rendición de caución real por 200 mil dólares (moneda estadounidense) la cual fue constituida mediante otorgamiento de hipoteca en primer grado sobre la Finca inscrita en Registro Público de la Propiedad, Provincia de San José, número [Valor052], a favor de la Corte Suprema de Justicia por ese monto. Tal medida cautelar fue levantada desde el año dos mil ocho, sin que se cancelara el gravamen respectivo" (Cfr. folio 171949). Solicita resolver lo gestionado, siendo necesario solo corroborar el fallecimiento de [Nombre018] (q.e.p.d.). SE RESUELVE EL RECURSO FORMULADO.

Sección Primera.- Se acoge la solicitud de sobreseimiento por extinción de la acción penal.- Con el propósito de resolver la petición de sobreseimiento resulta necesario considerar los siguientes aspectos: (i) Se acusó al imputado [Nombre018] (q.e.p.d.) por hechos descritos a lo largo de la acusación formulada por el Ministerio Público (de folio 422 a 434), admitida por el Juzgado Penal de Hacienda y la Función Pública, mediante resolución de las dieciséis horas del siete de octubre de dos mil ocho (cfr. folios 10421 a 10816). (ii) Después de celebrado el juicio oral y público, por voto de mayoría se le declaró a [Nombre018] (q.e.p.d.) "... coautor responsable de un delito de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO respecto de [Nombre027], y autor responsable de un delito de PENALIDAD DEL CORRUPTOR por COHECHO PROPIO en relación con [Nombre026], ambos en daño de la PROBIDAD EN LA FUNCIÓN PÚBLICA, imponiéndosele la pena de CINCO AÑOS DE PRISIÓN por el primero y CINCO AÑOS DE PRISIÓN por el segundo para un total de DIEZ AÑOS DE PRISIÓN, sanción que deberá descontar en el lugar y forma que determinen los respectivos reglamentos penitenciarios una vez deducida la prisión preventiva que hubiere cumplido".

(iii) El licenciado Hugo Santamaría Lamicq, en su condición de defensor del encartado [Nombre018] (q.e.p.d.) impugnó la referida sentencia. (iv) El justiciable [Nombre018] (q.e.p.d.) falleció en San José, en Cuidados Intensivos del Hospital San Juan de Dios, a las 23:20 horas del 17 de noviembre de 2011, por insuficiencia respiratoria, exacerbación EPOC EPOC IV (Cfr. folios 171950 y 171981). (v) Pero aunado al argumento expuesto por la defensa técnica del encartado, observa esta Cámara que ha operado una causa adicional de extinción de la acción penal, la prescripción. Según los parámetros establecidos supra en el tema de la prescripción de la acción penal, se establece que el plazo inicial de prescripción de la acción penal del encartado [Nombre018] (q.e.p.d.) era de cinco años para el delito de penalidad del corruptor por corrupción agravada en la modalidad de cohecho impropio (según la relación de los artículos 31 del Código Procesal Penal; así como 340, 342 y 345 del Código Penal, pues el plazo máximo de la pena es de cinco años); mientras que tratándose del delito de penalidad del corruptor por cohecho propio el plazo de prescripción es de seis años (según la relación de los artículos 31 del Código Procesal Penal; así como el 341 y 345 del Código Penal).

Ante la imposibilidad de aplicar el artículo 62 de la Ley Nº 8422, debe considerarse que después de iniciado el procedimiento penal esos plazos señalados (cinco y seis años, respectivamente), se reducen a la mitad para efecto de la interrupción y la suspensión de la prescripción (sea dos años y medio, y tres, respectivamente). Consta en autos que el acusado [Nombre018] (q.e.p.d.), fue indagado el día primero de noviembre de dos mil cuatro (cfr. folio 767, Tomo II) y el siguiente acto interruptor de la prescripción se dio cuando se convocó por primera vez a la audiencia preliminar (conforme lo establece el artículo 33 del Código Procesal Penal), acto procesal ocurrido el diez de setiembre de dos mil siete (resolución de las trece y treinta horas del diez de diciembre de dos mil siete, folios 8452 y 8453, Tomo XX), en consecuencia, se causó la extinción de la acción penal, pero únicamente en cuanto al primero de los delitos atribuidos, sea para el delito de penalidad del corruptor por corrupción agravada en la modalidad de cohecho impropio.

En todo caso, comprobado el fallecimiento del imputado [Nombre018] (q.e.p.d.), de conformidad con lo establecido en el inciso a) del artículo 30 del Código Procesal Penal, se declara extinguida la acción penal establecida en su contra, y en consecuencia, de acuerdo a lo dispuesto en el artículo 311 inciso d) y e) del mismo texto normativo, se dicta el sobreseimiento definitivo a su favor y por un delito de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO respecto de [Nombre027], así como de un delito de PENALIDAD DEL CORRUPTOR por COHECHO PROPIO en relación con [Nombre026], ambos en daño de la PROBIDAD EN LA FUNCIÓN PÚBLICA. En virtud de lo resuelto y por economía procesal, se omite pronunciamiento sobre los motivos de recurso de apelación formulado, respecto a la responsabilidad penal del encartado [Nombre018] (q.e.p.d.). Sección segunda.- En cuanto a los extremos civiles.- Sobre los extremos civiles formulados, ya esta Cámara acogió los reproches presentados por el licenciado Cristian Arguedas Arguedas, quien cuestionó la decisión del Tribunal de instancia de omitir pronunciamiento sobre las acciones civiles presentadas por la Procuraduría General de la República y el Instituto Costarricense de Electricidad; aplicándose el efecto extensivo y ordenando el reenvío para una nueva sustanciación conforme a Derecho sobre dichos extremos.

Sin embargo, como se ha resuelto en otras oportunidades (Cfr. del Tribunal de Casación Penal, votos Nº 492-F-1998, de las diez horas veinte minutos del trece de julio de mil novecientos noventa y ocho; Nº 437-2006 de las nueve horas del doce de mayo de dos mil seis; así como de la Sala Tercera de la Corte Suprema de Justicia, votos Nº 861-2002, de las diez horas del treinta de agosto de dos mil dos y Nº 67-2004, de las once horas cinco minutos del seis de febrero de dos mil cuatro) la sentencia de sobreseimiento o absolutoria no implica una imposibilidad de pronunciamiento sobre la acción civil o, su rechazo automático, es más, la Sala Constitucional de la Corte Suprema de Justicia, en el voto Nº 3603-93 de las catorce horas y dos minutos del veintisiete de julio de mil novecientos noventa y tres, estableció que no constituía una violación a la garantía del debido proceso, ni al derecho de defensa, que se declarara con lugar una acción civil resarcitoria en una sentencia absolutoria: “TERCERO: En cuanto al punto objeto de análisis, considera esta Sala que no existe ninguna violación a los principios del debido proceso en la sentencia recurrida, toda vez que los artículos 11 y 398 del Código de Procedimientos Penales brindan el sustento legal necesario para permitirle al juzgador pronunciarse sobre la Acción Civil Resarcitoria y acogerla aún cuando la sentencia sea absolutoria.

CUATRO: En relación con la sentencia absolutoria, existen varios supuestos en los que se puede dictar la misma, pero en todos los casos de sentencia absolutoria lo que se afirma es la impunibilidad del imputado, sin que ello implique que se está afirmando su inocencia porque no en todos los casos de absolutoria sucede tal cosa. De tal modo, el contenido de la absolución ya no implica inexistencia del delito, sino que ha variado para convertirse en un instituto de carácter negativo cuyo contenido se traduce en la no punibilidad del imputado; sin embargo, partiendo del hecho de que acción penal y acción civil son diferentes e independientes entre sì y que marchan juntas solo para efectos de economía procesal; el hecho de que se absuelva en cuanto a la acción penal no implica que se haya de absolver también en cuanto a la civil. De tal modo, la absolución por razones puramente penales no obsta el pronunciamiento sobre la acción civil y específicamente su acogimiento por la autoridad penal, de conformidad con el artículo 11 del Código de Procedimientos Penales, que en relación con el 398 del mismo cuerpo normativo faculta al Juez para que aún cuando absuelva ordene la restitución, indemnización o reparación demandada.

Asì las cosas, la aplicación de tales artículos por parte del juzgador obedece al cumplimiento del principio de legalidad, el cual es garantía fundamental integrante del Debido Proceso. Por ello, no es posible admitir que el Tribunal haya incumplido con el Debido Proceso, pues su actuación se encuentra plenamente amparada en normas procesales”. La cita anterior, pese a mencionar normas del Código de Procedimientos Penales, resulta plenamente aplicable a lo regulado en el actual Código Procesal Penal. Sobre el tema dispone el párrafo tercero del artículo 40 de ese cuerpo normativo: “La sentencia absolutoria no impedirá al tribunal pronunciarse sobre la acción civil resarcitoria válidamente ejercida, cuando proceda”. Hipótesis igualmente aplicable, tratándose de sentencias de sobreseimiento definitivo, ya sea, por prescripción de la acción penal (pues las causales de prescripción civil son distintas a las establecidas en lo penal), o por la muerte del demandado civil, aunque en este deberá seguirse el procedimiento establecido en la vía civil a fin de dotar de representación en el proceso penal a la sucesión del demandado civil [Nombre018] (q.e.p.d.).

Tesis acorde con lo dispuesto en el artículo 96 del Código Penal: “… La extinción de la acción penal y de la pena no producirá efectos con respecto a la obligación de reparar el daño causado, ni impedirá el decomiso de los instrumentos del delito”. Por economía procesal, se omite resolución expresa sobre las objeciones formuladas, pues versan sobre aspectos de fondo que deberán ser examinados justamente en el reenvío ya ordenado en cuanto a los extremos de la acción civil resarcitoria de interés. Sección tercera.- Sobre embargos y otros. Pide el licenciado Hugo Santamaría Lamicq el levantamiento de los embargos gestionados por la Procuraduría General de la República, sobre la finca inscrita en el Registro Público de la Propiedad, provincia de San José, numero [Valor052] y los vehículos placas [Valor053], [Valor054] y [Valor056]; también solicita se ordene la cancelación de la hipoteca otorgada en razón de una medida cautelar insubsistente hoy día, agrega: "Por resolución de dieciséis horas con veinte minutos del ocho de noviembre de 2004 del Juzgado Penal del Segundo Circuito Judicial de San José, se impuso a mi defendido entre otras medidas cautelares la rendición de caución real por 200 mil dólares (moneda estadounidense) la cual fue constituida mediante otorgamiento de hipoteca en primer grado sobre la Finca inscrita en Registro Público de la Propiedad, Provincia de San José, número [Valor052], a favor de la Corte Suprema de Justicia por ese monto.

Tal medida cautelar fue levantada desde el año dos mil ocho, sin que se cancelara el gravamen respectivo" (Cfr. folio 171949). En el sub examine, verificó esta Cámara que en efecto, mediante resolución de las catorce horas con treinta minutos del once de marzo de dos mil cinco, el Juzgado Penal de este circuito judicial, acogió la solicitud de embargo efectuada por la Procuraduría General de la República y, en cuanto al acusado [Nombre018] (q.e.p.d.) se dispuso sobre los siguientes bienes:

• 1)vehículo marca Volkswagen, modelo 2001, placas [Valor053];
• 2)vehículo marca BMW, modelo 1989, placas [Valor054];
• 3)vehículo marca Mercedes Benz, modelo 1985, placas [Valor055];
• 4)el vehículo marca Toyota, modelo 1976, placas [Valor057];
• 5)fincas del Partido de San José, matrículas [Valor058] y [Valor052] (cfr. folio 84 Legajo de acción civil resarcitoria). Sin embargo, en una resolución posterior (de las once horas del veintiuno de julio de dos mil cinco, folio 311 del legajo de acción civil resarcitoria) y a petición de la defensa técnica de [Nombre018] (q.e.p.d.), se ordenó levantar el embargo antes decretado, respecto de la finca del Partido de San José [Valor058] por estar sometido dicho inmueble al régimen de patrimonio familiar. No obstante, en vista del reenvío ordenado para la discusión de los extremos civiles, se rechaza la solicitud de cancelación de los embargos realizados. Por otra parte, verifica este Tribunal que mediante resolución de las dieciséis horas con veinte minutos del ocho de noviembre de dos mil cuatro, el Juzgado Penal del Segundo Circuito Judicial de San José, impuso al encartado [Nombre018] (q.e.p.d.), entre otras medidas cautelares, la rendición de una caución real por la suma de doscientos mil dólares (cfr. folios 445 a 468 del Legajo de Medidas Cautelares). El imputado a fin de cubrir la caución real impuesta constituyó hipoteca de primer grado sobre la finca número [Valor052], mediante escritura número [Valor059] del notario [Nombre086] (cfr. folios 481 a 486 del Legajo de Medidas Cautelares). En consecuencia, se ordena al Tribunal de instancia proceder a la devolución de cualquier caución rendida a favor de [Nombre018] (q.e.p.d.), por concepto de medida cautelar; ordenándose la cancelación de la hipoteca en primer grado sobre la finca inscrita en Registro Público de la Propiedad, Provincia de San José, número [Valor052], a favor de la Corte Suprema de Justicia, otorgada como caución real por la suma de doscientos mil dólares.

XIV. RECURSO FORMULADO POR EL MINISTERIO PÚBLICO

Las licenciadas Maribel Bustillo Piedra y Criss González Ugalde, representantes del Ministerio Público, presentan recurso de casación por adhesión de los recursos de casación presentados por las partes, contra la resolución Nº 167-2011, de las 15:00 horas del 27 de abril de 2011, dictada por el Tribunal Penal de Hacienda del Segundo Circuito Judicial de San José. En el único motivo invocado se alega "errónea interpretación de la norma constitucional del artículo 24 de la Constitución Política y desaplicación del numerales 7 del mismo cuerpo normativo" (Cfr. folio 171422). Explican que en esta misma causa, el Tribunal Penal de la Hacienda Pública del Segundo Circuito Judicial de San José, mediante resolución de las ocho horas del catorce de mayo de dos mil diez dispuso: "SEGUNDA PARTE: Por unanimidad, se rechaza parcialmente la protesta por actividad procesal defectuosa. No ha lugar a declarar lícita la prueba a que se hace referencia en los puntos 563, 564, 574 a 581, 584 y 585 y por consiguiente tampoco admitirla como prueba para mejor resolver (...)" .

Lo anterior como respuesta a una protesta planteada por ellas, posterior a que el juez de la etapa intermedia en el auto de apertura a juicio, denegara el uso del material probatorio relacionado con diversas asistencias judiciales requeridas a la República de Panamá, específicamente los puntos de prueba 563, 564, 574 a 581, 584 y 585. El argumento base para la exclusión de la prueba, aludía a la necesidad de una solicitud por parte de un juez costarricense, para recabarla pues debía ordenarse el levantamiento del secreto bancario. Refieren que en lo que interesa se estableció: " -al amparo de la Ley Fundamental costarricense la restricción del derecho a la privacidad para la investigación de asuntos penales procede siempre que: i) exista una orden de un Tribunal de la República que así lo determine, condición exigida por la norma constitucional citada en cuanto establece que son los "Tribunales de Justicia" a los que compete ordenar el secuestro, registro o examen de los documentos privados, requisito también estipulado en los artículos 2 y 3 de la Ley sobre Registro.

Secuestro, Examen de Documentos Privados e Intervención de las Comunicaciones, N° 7425, y 107 de la Ley Orgánica del Poder Judicial, entre otras; y ü) cuando resulte "absolutamente" indispensable para averiguar la verdad, conforme a la disposición constitucional y a las normas ordinarias reseñadas, determinando el artículo 2 de la legislación especial su utilidad como prueba de alguna conducta delictiva.(...)De ahí que la autorización jurisdiccional lejos de ser un mero formalismo, legítima la intromisión dispuesta en la esfera privada de una persona. atribuyéndose a tal órgano la responsabilidad de admitirla únicamente cuando ello sea estrictamente indispensable. (.. ) En síntesis, el juez o a la jueza, imparcial, independiente y previamente constituido, es el órgano competente para tomar la decisión de afectar el derecho a la privacidad del titular (así también lo ha interpretado la Sala Constitucional, entre otras. en resolución N° 1427-1996).

No es, entonces, función ni <http://función.ni> facultad, de los y las representantes del Ministerio Público, ni tampoco del Fiscal General de la República, requerir e imponerse de información confidencial de las personas. Conforme se interpreta de la norma constitucional antes citada, el sistema de garantías vigente en Costa Rica determina que el único órgano competente para ponderar y disponer la injerencia en la esfera privada de las personas es un Tribunal de Justicia de la República. (.. )Por último, es importante destacar que si bien secreto bancario no tiene rango constitucional sino legal (en ese sentido, por ejemplo: resoluciones N° 3229-1995 y N° 5507-1994 de la Sala Constitucional de la CSJ), lo cierto es que en tanto conlleva la protección a la privacidad de las cuentas corrientes, es una garantía a favor de los cuentacorrentistas que exista una autorizac,.-w jurisdiccional previa para imponerse de su contenido.

(...) En lo que concierne a la privacidad de otras formas de registro de información de carácter privado, con independencia del lugar donde se encuentren tales datos, subsisten las condiciones enunciadas en la norma constitucional y su desarrollo legal, cuando se pretende su eficacia probatoria en un proceso judicial local. Con otras palabras, si a los fines de una investigación penal se requiere el secuestro y análisis de documentos privados resguardados en una entidad financiera radicada en el extranjero, la cual carece de domicilio legal en el territorio costarricense, deberá cumplirse con las garantías y requisitos mencionados en el acápite anterior. Actuar de manera contraria implica la vulneración del derecho fundamental descrito y su ilicitud, conforme lo determina el segundo párrafo del numeral 181 del Código Procesal Penal.(...)Para concluir, la obtención de elementos de convicción privados y procedentes de entidades financieras radicadas en el extranjero exige la observancia de las mismas garantías que rigen para recabar dicha información respecto de fuentes ubicadas en el suelo nacional.

De manera que, si la autorización jurisdiccional es parte de la condición para imponerse del contenido de las cuentas bancarias operaciones y otros datos financieros contenidos en registros locales, también dicha exigencia rige para la obtención de datos de semejante carácter y de fuentes foráneas. Antes que un mero requisito, dicha condición determina que, previo a esa injerencia, una autoridad jurisdiccional instituida para esa función sea la que proceda a bastantear la proporcionalidad de la afectación de tal derecho; es decir, la necesidad de la acción, así como su idoneidad para lograr el fin propuesto y la conformidad entre éste y la medida. Únicamente después de realizado este ejercicio por quien tiene la competencia y legitimación para hacerlo es que, justificadamente, ocurre la intervención en la esfera de protección antes señalada y los datos obtenidos en el territorio nacional e internacional son revestidos de licitud.

(...)Por ende, si para la limitación del derecho a la privacidad constitucionalmente se exige autorización jurisdiccional, así debió gestionarse previo a la solicitud de la información privada máxime que, en todos los asuntos, se respeta el derecho interno costarricense para su solicitud y ~ e requerido para su trámite y ejecución. (...)Es importante indicar que la denominada orden jurisdiccional no está dirigida al órgano del país requerido, en este caso a la autoridad competente de Panamá, para que levante la privacidad al titular de ese derecho fundamental; sino que surte el efecto de garantizarle a este titular, a lo interno, la revisión previa del juez o de la jueza investida para realizar dicha función. De modo que, tal autorización se extiende en tanto se considere la concurrencia de los requisitos exigidos por el ordenamiento patrio, al amparo del principio de proporcionalidad y debido proceso.

No se trata, entonces, de una limitación a la soberanía panameña, dado que la resolución jurisdiccional no va dirigida al señalado Estado, sino que es una exigencia propia de nuestro derecho interno la cual debe ser respetada. Consecuentemente, una interpretación armonizada del TALM con el bloque de constitucionalidad, determina la vigencia del último dado que el Tratado no tiene la virtud de desaplicar el artículo 24 de la Constitución Política. (...) En suma, la orden fundamentada de un Tribunal de Justicia de la República levantando la garantía de privacidad es la que reviste de legitimidad y torna razonable la injerencia del poder persecutorio en esa esfera de actuación de las personas" (Cfr. folios 171423 a 171425). Explican que a inicios de la investigación, por diversos indicios se consideró que los imputados con el fin de eludir los controles judiciales y administrativos habían radicado cuentas bancarias a nombre de personas jurídicas en la República de Panamá, procurando eliminar rastros del delito (con cuentas fuera del territorio costarricense); motivo por el cual, el Ministerio Público al analizar la normativa estimó procedente utilizar el Tratado de Asistencia Legal mutua en asuntos penales entre la Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (TALM) y requerir de la cooperación judicial internacional, pues el fundamento de esa cooperación "se encuentra en la limitación territorial del ámbito de competencia de las jurisdicciones estatales, en la imposibilidad de las autoridades del Estado requirente de practicar pruebas fuera de su territorio jurisdiccional, del territorio sometido a la soberanía del Estado en cuyo nombre se administra justicia, lo que exige de la colaboración de las autoridades del Estado extranjero correspondiente al lugar donde las pruebas hayan de realizarse.

Esta cooperación pretende así superar las fronteras, procurando que éstas no sean un obstáculo para las investigaciones de los delitos por las autoridades competentes y que los delincuentes no encuentren refugios y subterfugios donde esconderse tanto de forma material como legal, en atención a laberintos jurídicos" (Cfr. folio171426). Consideran que cuando en el Preámbulo se establecen los deseos de fortalecer y facilitar la cooperación, con pleno respeto de la legislación interna de cada Estado, significa «que al momento de su suscripción todos los Estados Partes atendiendo a su propia legislación se encuentran legitimados respecto de su legislación interna para la suscripción de dicho tratado, por no contravenir dicho instrumento jurídico las constituciones y legislación de cada uno de los Estados Partes. Ahora bien, el artículo 2 punto 5 del TALM es el que indica la manera como se tramitará, específicamente determina: "Todas las solicitudes de asistencia que se formulen bajo el presente Tratado, serán tramitadas y ejecutadas de conformidad con las leyes del Estado Requerido".» Por ende, consideran las gestionantes que las actuaciones solicitadas dentro de los países centroamericanos en asuntos penales, se deben ejecutar conforme a las normas del Estado de ejecución, es decir, la norma procesal de su propio país.

Detalla el procedimiento seguido para la obtención de la prueba excluida, puntualizando se efectuaron las solicitudes de la Fiscalía General a la Procuraduría General de la República de Costa Rica; la cual, en su carácter de autoridad central del referido tratado, remitió la petición a su homóloga en Panamá, sea la Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional; para ser trasladada la solicitud a la Procuraduría General de la Nación de la República de Panamá, que remite el requerimiento a la Fiscalía de Panamá, autoridad judicial autorizada para el levantamiento del secreto bancario en Panamá. La Fiscalía notifica a las autoridades bancarias panameñas y demanda la información de cuentas bancarias. Una vez recopilados los datos, se remiten a la Fiscalía panameña, se envía a la Procuraduría General de la Nación, luego a Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional, dependencia que hace llegar la información a Costa Rica, primero a la Procuraduría General de la República de Costa Rica, después a la Fiscalía General.

En amparo de su postura, cita el voto salvado de la resolución Nº 499-2011 de la Sala Tercera de la Corte Suprema de Justicia y alega que conforme al principio acusatorio propio de un Estado democrático, los actos de investigación corresponden al fiscal, de ahí que califiquen como contradictorio e ilegal, que en nuestro ordenamiento sea el juez quien debía hacer la petición ante la Procuraduría General de la República en su posición como autoridad central, según el tratado. Critican el uso por parte del Tribunal de instancia, del voto Nº 70-2005 de la Sala Tercera, pues estiman, discute un supuesto diverso. Se manifiestan opuestas a que exigiéndose en nuestro país que una autoridad judicial ordene el levantamiento del secreto bancario, esto se deba aplicar para levantar el secreto bancario en el extranjero. Consideran extensivo el alcance dado al artículo 24 de la Constitución Política, pues afecta a autoridades panameñas y a su territorio; cuando la norma constitucional se circunscribe solo a nuestro territorio nacional.

Refieren que en material penal opera el principio de territorialidad (como manifestación de la soberanía del Estado), por ende, la ley del estado es la aplicada a todos los habitantes de su territorio y por los hechos cometidos en su nación. Cuando se alude a la "Ley No.7425 de Registro, Secuestro y Examen de documentos privados e intervención de las comunicaciones" es claro que, como derivado del principio de soberanía constitucional, su competencia corresponde a los Tribunales de Justicia de Costa Rica, no a otros Estados y; cuando se refiere al registro, secuestro o examen de cualquier documento privado, hace referencia a documentos radicados en Costa Rica, no en otros Estados. En abono de su tesis, retoman el contenido del artículo 2 de la Ley Nº 7425, que alude a la realización personal de la diligencia por parte del juez, para concluir que estando los documentos en el extranjero, el juez costarricense sería incompetente por el principio de soberanía.

Citan el voto Nº 1061-2008 de la Sala Tercera, el cual en referencia al artículo 132 CPP, reafirma la imposibilidad de un tribunal de constituirse en un lugar fuera del territorio nacional; asimismo reproducen los artículos 1 y 2 de la Ley Orgánica del Poder Judicial, sobre las atribuciones otorgadas al Poder Judicial. Agregan: "El establecimiento de una orden del juez costarricense en ese sentido, sería por un lado una invasión a las competencias y a las atribuciones de las autoridades judiciales extranjeras, sino también acciones vacías, porque al no encontrarse los documentos privados en nuestro Estado, la orden per se deja de tener sentido y validez" (cfr. folio 171436). Se insiste que conforme lo establece el TALM la ejecución en la recolección de las diligencias instadas por el Estado requirente, deben hacerse conforme a las normas del Estado requerido. Señalan que revisada jurisprudencia de otros países, tal es el caso de España, el criterio mayoritario aboga porque las diligencias realizadas en el extranjero mediante una comisión rogatoria, no pueden ser supervisadas por la legislación o jurisprudencia española, sino acorde con la del país donde tuvieron lugar Citan varios pronunciamientos, entre ellos la STS de 26 de Marzo de 1995, mantuvo la validez de unas intervenciones telefónicas realizadas en Italia conforme a las normas italianas, por actuar conforme a lo dispuesto en el mencionado artículo 3 Convenio de Asistencia Judicial en materia Penal de 1959.

Asimismo, mencionan precedentes ingleses (R v Quinn 1990, estableciendo que los jueces ingleses no pueden esperar que los requerimientos procesales británicos sean seguidos en otras jurisdicciones), de Brasil (el Tribunal Superior de Justicia de Brasil, No. 2.382 SP(2010/055667-6) dictado en Brasilia el 26 de octubre de 2010, dispuso que lo que interesa en las solicitudes de asistencia judicial es la ley del estado requerido). Finalmente concluyen: "En consecuencia, dado que el artículo 24 de nuestra Constitución Política no es aplicable en territorio panameño, en tanto que el TALM sí tiene autoridad superior a las leyes costarricenses y panameñas, si la prueba documental radica en el territorio panameño, y se recabó en ese territorio, respetándose los derechos y garantías establecidos en la Constitución de ese país, y es remitido a nuestro país, conforme al procedimiento establecido en el TALM, dicha prueba es legítima y debe ser incorporada al proceso penal" (Cfr. folio 171439).

Consideran las impugnantes que la eliminación de la prueba proveniente de Panamá (pruebas Nº 563, 564, 578 y 579) generó la impunidad de los hechos de la acusación 334 y 335, así como el ejercicio de la pretensión punitiva, por lo que solicitan se declare con lugar el recurso, se mantenga incólume la prueba número 588 y se declare parcialmente la nulidad del fallo impugnado en cuanto a la parte de la acusación relacionada con "[Nombre012] y el gobierno de Taiwán" a partir del hecho número 323 de la relación de hechos y se ordene el reenvío para nueva sustanciación.

XV.SE RESUELVE EL RECURSO FORMULADO POR EL MINISTERIO PÚBLICO.- Todos los derechos fundamentales nacen limitados porque se ejercitan en el seno de la sociedad, sin embargo, el grado o magnitud de su afectación es relativa histórica y espacialmente; es decir, su alcance o el establecimiento de las restricciones varían en el tiempo y según cada ordenamiento jurídico, conforme a criterios de orden público, moral, buenas costumbres, derechos de terceros (HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). En el derecho interno patrio, la Constitución Política en el artículo 28 establece un límite inquebrantable: Artículo 28.- Nadie puede ser inquietado ni perseguido por la manifestación de sus opiniones ni por acto alguno que no infrinja la ley. Las acciones privadas que no dañen la moral o el orden públicos, o que no perjudiquen a tercero, están fuera de la acción de la ley.

En consecuencia, pese a que los derechos fundamentales se encuentran sometidos a determinadas restricciones, solo son legítimas las necesarias para hacer posible la vigencia de los valores democráticos y constitucionales; no siendo suficiente con que sea útil, razonable y oportuna, debe darse una necesidad social imperiosa, de ahí, que se digan sólo justificables las limitaciones orientadas a satisfacer un interés público, optándose siempre por aquellas que ciñan en menor escala el derecho protegido (Cfr. HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). Plantea el Ministerio Público su inconformidad porque se declaró ilícita una prueba aportada al proceso (las Nº 563, 564, 578 y 579) y esencial desde su punto de vista, pero no deja de llamar la atención la indiferencia al tema de la eventual afectación de derechos fundamentales, pues aún cuando el único motivo formulado ("errónea interpretación de la norma constitucional del artículo 24 de la Constitución Política y desaplicación del numeral 7 del mismo cuerpo normativo") contiene en su título una referencia a la norma constitucional que tutela el derecho a la intimidad, el contenido de su alegato busca legitimar una interpretación sobre la aplicación del Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá (T.A.L.M.), totalmente ajena y opuesta a la tutela de ese derecho conforme se ha regulado en nuestro ordenamiento, aún cuando se tiene claro que el proceso penal de interés tendrá lugar dentro del territorio nacional, resultando obvio que en ese contexto se imponía el respeto al principio de legalidad establecido en el artículo 1 del Código Procesal Penal: “Nadie podrá ser condenado a una pena ni sometido a una medida de seguridad, sino en virtud de un proceso tramitado con arreglo a este Código y con observancia estricta de las garantías, las facultades y los derechos previstos para las personas.

La inobservancia de esta regla de garantía establecida a favor del imputado no podrá hacerse valer en su perjuicio”. Y en una actuación a tono con lo dispuesto en el artículo 63 ibídem: “En el ejercicio de su función, el Ministerio Público adecuará sus actos a un criterio objetivo y velará por el cumplimiento efectivo de las garantías que reconocen la Constitución, el Derecho Internacional y el Comunitario vigentes en el país y la ley…” (la negrita no corresponde al original), pues en definitiva, aplicar el T.A.L.M. no tenía que ser incompatible con el respeto del debido proceso, del derecho de defensa, de los derechos fundamentales consagrados en la Carta Magna. Pudo constatar está Cámara que el Juzgado Penal de Hacienda y la Función Pública mediante resolución de las dieciséis horas del siete de octubre de dos mil ocho, al dictar el auto de apertura a juicio, acogiendo una actividad procesal defectuosa formulada por la defensa del imputado [Nombre012], ordenó el rechazo de la prueba que aquí interesa al Ministerio Público.

En esa ocasión el juzgador reconoce que el Tratado de Asistencia Legal Mutua en Asuntos Penales entre las Repúblicas de Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua y Panamá "... constituye una herramienta jurídica internacional para agilizar precisamente la cooperación entre los Estados Parte del mismo, en lo que se refiere a materia penal. Uno de los objetivos específicos de esta normativa es el de evitar el trámite de esta asistencia legal mutua por medio de la vía diplomática, tal situación determina que las normas del Código de Bustamante u otra disposición general para la cooperación internacional, no resultan aplicables al caso, por existir una norma especial... Presupone la disposición un trámite más expedito, informalista (en los aspectos administrativos no en los aspectos judiciales) y ágil, en beneficio del derecho a la justicia pronta y cumplida; prescindiendo de la vía diplomática y las rigurosidades formales establecidas en la Convención de Derecho Internacional Privado." (Cfr. folios 10570 y 10571).

Pero aún reconociendo la importancia o ventajas del instrumento, sus propósitos de cooperación internacional en el trámite de procesos penales y el afán de evitar la impunidad de conductas criminales; más adelante reflexiona y concreta extremos medulares en el tema. Retoma el contenido del artículo 24 de la Constitución Política y establece: "Como se puede ver la norma garantiza el derecho a la inviolabilidad de los documentos privados y las comunicaciones de los habitantes de la República... Un primer acercamiento en detalle al tema, permite evidenciar que la disposición hace ver que los documentos (tema que ahora nos ocupa) y registros que se encuentran protegidos al amparo de dicho principio constitucional, son los privados, lo que genera un efecto directo sobre el caso, toda vez que los precedentes jurisprudenciales expuestos por la Fiscalía para justificar su acción son casos de documentos públicos, que como tal no presentan ninguna regulación especial en nuestra regulación nacional, salvo los temas de autenticidad que no es el motivo de discusión...

Muestra clara de la veracidad de lo dicho es que el Código Procesal Penal costarricense en materia de documentos de acceso público permite la investigación directa por parte del Ministerio Público sin ninguna intervención judicial, pues como su nombre lo dice se trata de documentos de acceso abierto sin protección alguna del derecho a la intimidad" (Cfr. folio 10575). Después de reflexionar sobre los cuidados previstos por el legislador para dictar una regulación limitante del derecho fundamental a la intimidad (una ley aprobada por mayoría calificada), menciona el artículo 201 del Código Procesal Penal que establece: "En relación con la interpretación y el secuestro de comunicaciones y correspondencia, se estará a lo dispuesto en la ley especial a que se refiere el artículo 24 de la Constitución Política". Normativa que es justamente la Ley de Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones que exige el dictado de una resolución jurisdiccional debidamente fundamentada para admitir cualquier invasión al ámbito de intimidad de los ciudadanos.

Destaca el juzgador que durante la audiencia preliminar se hizo ver que los tratados, conforme establece el artículo 7 constitucional, tienen rango superior a la ley, pero que esa superioridad no alcanza a la Constitución Política cuyo artículo 24 exige el dictado de una resolución sostenido que dicho instrumento es superior a la misma Constitución Política, lo que de manera contundente debemos rechazar. La Sala Constitucional ha sostenido que los instrumentos internaciones en materia de derechos humanos tienen vigencia superior a la misma Constitución en cuanto integran el marco constitucional (Ver entre otros los votos 68-98, 1319-97 y 2313-95, todos de la Sala Constitucional), pero no son todos los instrumentos sino los que tienen ese específico marco normativo, sea el tema de los derechos humanos" (Cfr. folio 10576). Carácter que con acierto le niega el juzgador al T.A.L.M., quien agrega: "Además el contenido de otorgarles una eficacia superior al marco constitucional no es para derogar lo ya señalado por la carta interna, sino para permitir una mejor regulación o una ampliación del espectro, que no es el escenario.

(...) Tratándose de información privada, que por disposición constitucional requería una orden judicial para tener acceso, la lógica en el marco constitucional era que el Juzgado Penal del Segundo Circuito Judicial de San José, actuando como Juzgado Penal de Hacienda y la Función Pública, era el llamado a disponer el levantamiento de la privacidad de tal información y solicitara (por intermedio de la Procuraduría General de la República) a las autoridades panameñas que en aplicación del referido tratado, lo remitieran al Juez correspondiente en aquella nación para que analizara si en su criterio resultaba procedente (conforme con su ordenamiento interno) disponer el acceso a las informaciones protegidas por el derecho a la información" (Cfr. folio 10576). La licitud de las pruebas número 563, 564, 574 a 581, 584 y 585, forman polémica de nuevo al iniciarse el debate oral y público, cuando el Ministerio Público intenta revivirla e incorporarla al material probatorio del contradictorio.

Se alegó que el juez de la etapa intermedia se había equivocado al calificar como ilegal la prueba obtenida de entidades financieras y del Registro Público de la República de Panamá, relacionadas con Inversiones Denisse S.A. y vinculadas al acusado [Nombre012], del Banco Alemán Platina, empresa NCR Holding S.A. y UTS Holding S.A. asociadas al encartado [Nombre018] (q.e.p.d.); insistiendo en la validez del trámite, realizado conforme lo establecía el T.A.L.M.. No obstante, el tribunal de juicio al resolver la protesta la deniega, mediante la resolución de las ocho horas del catorce de mayo de dos mil diez, utilizando como sustento lo estipulado en el artículo 24 de la Carta Magna, sea el derecho a la intimidad y el secreto de las comunicaciones, explicando que aún cuando el precepto constitucional abre la posibilidad sobre la excepción a tal derecho, exigió la promulgación de una ley (aprobada por dos tercios de los diputados de la Asamblea Legislativa) y que conocemos corresponde a la Nº 7425, Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de las Comunicaciones, que exige una orden debidamente fundamentada y emitida por un juez de la República, que incluya un examen de proporcionalidad (sobre la necesidad de intromisión en el ámbito privado para averiguar la verdad de los hechos) y la comprobación de un indicio sobre la comisión delictiva.

Refieren en la citada resolución: "... el juez o a la jueza, imparcial, independiente y previamente constituido, es el órgano competente para tomar la decisión de afectar el derecho a la privacidad del titular (así también lo ha interpretado la Sala Constitucional, entre otras, en resolución Nº 1427-1996). No es, entonces, función, ni faculta, de los y las representantes del Ministerio Público, ni tampoco del Fiscal General de la República, requerir e imponerse de información confidencial de las personas. Conforme se interpreta de la norma constitucional antes citada, el sistema de garantías vigente en Costa Rica determina que él único órgano competente para ponderar y disponer la injerencia en la esfera de las personas es un Tribunal de Justicia de la República" (Cfr. folio 13376, Tomo XXVII). Más adelante se afirma: "El o la jueza nacional no puede ignorar la constatación de las garantías vigentes en Costa Rica, ni siquiera cuando la investigación se haya cumplido fuera del territorio nacional o cuando, como en el presente caso, sea requerida información procedente del extranjero.

En ese sentido, la Sala Constitucional, en el pronunciamiento Nº 4248-2001, advierte sobre la importancia de que se respete el mecanismo de veracidad y autenticidad del contenido de los documentos requeridos del extranjero, precisamente en función de nuestra garantía constitucional del debido proceso, aseverando que han de valorarse los efectos de la cadena de custodia en el caso concreto a los fines de establecer la legalidad de la producción e introducción de prueba en el proceso" (Cfr. folio 13377 vto., Tomo XXVII). En suma, reconoce el Tribunal de Juicio, en un criterio que en todo avala este Tribunal, que la obtención de elementos probatorios privados y procedentes de entidades financieras domiciliadas en el extranjero, exige cumplir con las mismas garantías previstas y requeridas para obtener esa información, si dichas fuentes radicaran en territorio patrio, nacional. En consecuencia, siendo la orden jurisdiccional parte de las condiciones legales impuestas para acceder a las cuentas bancarias, operaciones y cualquier otro dato financiero privado, constituye un requisito obligado tanto en fuentes nacionales como extranjeras; destacando que no se trata de un mero formalismo, es una garantía del debido proceso que conlleva una valoración sobre la proporcionalidad de los bienes afectados versus la investigación (cfr. folios 13378 fte. y vto., Tomo XXVII).

Vemos al Ministerio Público ensayando, según la etapa, diversas tesis, siempre procurando el amparo y legitimación de una prueba que tramitó de forma más que incorrecta, ilícita; situación que finalmente generó un estado favorable a los intereses de los justiciables y determinó -en mucho- su absolutoria en el aspecto penal (cuando el reproche se vinculó a ese elemento probatorio). Sus argumentos fueron uno a uno rechazados; durante la etapa intermedia: (i) aludió a jurisprudencia referida a documentos públicos, no privados; absolutamente inútil para sustentar su postura; (ii) aseguró una superioridad del Tratado sobre la Constitución; inaceptable (salvo en tema de derechos humanos). Más tarde, en la fase plenaria insistió en la legalidad del trámite, ejecutado conforme con el T.A.L.M.. Sin embargo, y pese a que esta Cámara no comparte con el juez de la etapa intermedia, la necesidad de que un juez o jueza penal costarricense remitiera la solicitud a un juez o jueza panameña que también examinara la procedencia legal de la petición (pues es claro que es otro el trámite); si hay afinidad y coincidencia en un tema medular de ambas resoluciones: la exigencia legal en nuestro país de una resolución expresa y debidamente fundamentada por parte de un juez o jueza de garantías nacional, ponderando y ordenando (o denegando) dicha diligencia, al Ministerio Público.

En caso de haberse resuelto afirmativamente la petición del ente fiscal (accediendo el juez o jueza al levantamiento del secreto bancario); debía entonces el Ministerio Público (con la resolución que autorizaba la invasión a la intimidad de los encartados) seguir el trámite según lo previsto en el T.A.L.M.; es decir, presentar la solicitud de asistencia judicial a la Procuraduría General de la República de Costa Rica (autoridad central en el ámbito local); que la Procuraduría trasladara la gestión del Ministerio Público al Director Nacional de Ejecución del Tratado, de ahí se remitiera a la Procuraduría General de la Nación (autoridad central en Panamá), pasando luego a la Fiscalía Anticorrupción, la cual notifica a las entidades financieras panameñas para recabar la información pertinente. Aclarando que en Panamá, según lo prevé su Constitución Política, la autoridad competente para levantar el secreto bancario es el Ministerio Público, a diferencia de nuestro país.

En suma, comparte este Tribunal que conforme lo establece el principio acusatorio y lo reclamó en su impugnación el Ministerio Público, los actos de investigación corresponden al fiscal y es éste quien después de pedir al juez de garantías y obtener de su parte la resolución debidamente fundamentada autorizando esa diligencia de investigación, el fiscal debe pedir a la Procuraduría General de la República el traslado de la gestión al Director Nacional de Ejecución del Tratado (en el sub examine, de Panamá), y no directamente el juez de garantía. Pero dar la razón en dicho extremo, no convalida o hace desaparecer el vicio absoluto en que incurrieron, al gestionar la intervención o afectación en un derecho fundamental de un imputado, por su cuenta y de forma directa ante la Procuraduría General de la República, ignorando por completo la función asignada en la Constitución Política, al juez de garantías dentro del territorio nacional.

Como lo señala con acierto el Tribunal de Juicio al resolver esta protesta: "... la orden fundamentada de un Tribunal de Justicia de la República levantando la garantía de privacidad es la que reviste de legitimidad y torna razonable la injerencia del poder persecutorio en esa esfera de actuación de las personas. Lejos de consistir en un mero mandato, plasmado en un simple documento, representa la interdicción de la arbitrariedad y sujeción de las autoridades públicas a la Constitución, pues se trata de la exigencia de una ponderación objetiva de que en ese caso concreto concurren los requisitos exigidos por el ordenamiento para dicha limitación. Actuar sin contar con la descrita valoración formal y sustancial es actuar de espaldas a la Ley Fundamental y en contra de la convicciones y valores compartidas por la sociedad costarricense" (cfr. folio 13381). Como se indicó en otro considerando, esta Cámara no comparte los argumentos del voto de minoría Nº 499-2011 de la Sala Tercera de la Corte Suprema de Justicia, pese a reconocer el principio acusatorio, que de forma marcada, determina nuestro sistema procesal penal; no se alberga ninguna duda sobre el rol protagónico y esencial asignado al juez de garantías, quien está llamado a intervenir para ponderar toda diligencia de investigación que afecte derechos fundamentales.

En el sub judice, pese a la vigencia y aplicación del T.A.L.M., que este Tribunal avala a plenitud como una herramienta conveniente y de suma utilidad para combatir el crimen y evitar la impunidad; no resulta un instrumento jurídico capaz de privar de validez a nuestra Constitución Política, que de forma diáfana y prístina consagra en el artículo 24: "Se garantiza el derecho a la intimidad, a la libertad y al secreto de las comunicaciones. Son inviolables los documentos privados y las comunicaciones escritas, orales o de cualquier otro tipo de los habitantes de la República. Sin embargo, la ley, cuya aprobación y reforma requerirá los votos de dos tercios de los Diputados de la Asamblea Legislativa, fijará en qué casos podrán los Tribunales de Justicia ordenar el secuestro, registro o examen de los documentos privados, cuando sea absolutamente indispensable para esclarecer asuntos sometidos a su conocimiento.

Igualmente, la ley determinará en cuáles casos podrán los Tribunales de Justicia ordenar que se intervenga cualquier tipo de comunicación e indicará los delitos en cuya investigación podrá autorizarse el uso de esta potestad excepcional y durante cuánto tiempo. Asimismo, señalará las responsabilidades y sanciones en que incurrirán los funcionarios que apliquen ilegalmente esta excepción. Las resoluciones judiciales amparadas a esta norma deberán ser razonadas y podrán ejecutarse de inmediato. (...)" (La negrita no corresponde al original). Desde esa perspectiva no existe ningún exceso al aplicar o interpretar el artículo 24 constitucional; pues según se viene argumentando, la intervención del juez de garantías para valorar la idoneidad, necesidad o proporcionalidad de la medida, solo se exige para el trámite dentro del territorio nacional, donde no olvidemos, es donde se tramita el proceso en contra de los acusados.

Es decir, no es un mandato que se extienda o se pretenda imponer a otro Estado, en este caso el panameño, pues obviamente no gozamos de competencia para ello, además, su normativa es distinta a la nuestra y, en ella, solo amerita la actuación del Ministerio Público para obtener la documentación de interés del ente fiscal en nuestro país. En ese sentido, se respeta lo previsto en el artículo 2, punto 5 del T.A.L.M.: "Todas las solicitudes de asistencia que se formulen bajo el presente Tratado, serán tramitadas y ejecutadas de conformidad con las leyes del Estado Requerido". Así, lo que correspondía a nuestro país era que el Ministerio Público solicitara al juez de garantías el levantamiento del secreto bancario, como lo ordena la Constitución, de obtener la aprobación, dirigirse a la Procuraduría para tramitara la solicitud ante el Estado panameño; luego, lo que incumbía a Panamá era recibir la petición por parte de la Procuraduría, a fin de que el Ministerio Público panameño se encargara de recabar la información solicitada; era lo único esperable legalmente, en acatamiento del principio de territorialidad y como una manifestación de la soberanía de los Estados.

Desde luego no se comparte el criterio, a nuestro entender, sesgado y confuso de las impugnantes, cuando buscando otro alegato afirman que derivado del principio de soberanía constitucional, no es posible aplicar la "Ley No.7425 de Registro, Secuestro y Examen de documentos privados e intervención de las comunicaciones", a otros Estados. En realidad sobre ese extremo tuvo absoluta claridad el Tribunal de Juicio, nunca se ha pretendido aplicar el derecho interno costarricense, al panameño. Así se desprende de la siguiente cita: "Es importante indicar que la denominada orden jurisdiccional no está dirigida al órgano del país requerido, en este caso a la autoridad competente de Panamá, para que levante la privacidad al titular de ese derecho fundamental; sino que surte el efecto de garantizarle a este titular, a lo interno, la revisión previa del juez o de la jueza investida para realizar dicha función.

De modo que, tal autorización se extiende en tanto se considere la concurrencia de los requisitos exigidos por el ordenamiento patrio, al amparo del principio de proporcionalidad y debido proceso. No se trata, entonces, de una limitación a la soberanía panameña, dado que la resolución jurisdiccional no va dirigida al señalado Estado, sino que es una exigencia propia de nuestro derecho interno la cual debe ser respetada" (Cfr. folio 13380) Y agrega: "... Con todo, cuando esa información es gestionada respecto de un Estado como el panameño, el procedimiento a seguir es el establecido en el TALM. De ahí que el Estado requirente deba canalizar la solicitud de documentos públicos a través de la Autoridad Central nacional, en tanto el Estado requerido debe suministrarlos con la firma del funcionario encargado de mantenerlos en custodia y certificados por medio de la Autoridad Central, mediante un sello creado al efecto...

Una vez cumplidos esos postulados, no se requerirá otra certificación o autenticación adicional. Los documentos certificados al tenor de lo dispuesto por el Tratado constituyen prueba admisible de la veracidad de los asuntos expuestos en ellos, según lo regulado por el artículo 13 inciso 3 del TALM..." (Cfr. folios 13380 vto. y 13381 fte.). En suma, no se establece en la sentencia, ni avala este Tribunal, que un juez o jueza de la República pretenda imponer la legislación o la jurisprudencia nacional en el extranjero; ese argumento es una interpretación tergiversada de lo resuelto por el Tribunal de Juicio, en consecuencia los antecedentes que citan (jurisprudencia de casos italianos e ingleses) serían compartidos por esta Cámara; pues no se proyecta de ninguna forma aplicar el artículo 24 constitucional al hermano Estado panameño. Nuestro sistema procesal penal opta por acoger el principio de libertad probatoria, previsto en el numeral 182 del Código Procesal Penal: “Podrán probarse los hechos y las circunstancias de interés para la solución correcta del caso, por cualquier medio de prueba permitido, salvo prohibición expresa de ley”.

En virtud de ello, las partes tienen el derecho de probar los aspectos de interés en el proceso, con prueba útil y pertinente pero con un único e insalvable límite, su licitud, sea en fase de obtención y/o incorporación al proceso. Es decir, dentro de nuestro sistema democrático de derecho todas las pruebas obtenidas, producidas, recolectadas o introducidas al proceso penal, al margen de los cánones legales y previamente establecidos, deben excluirse de su consideración dentro del proceso penal, tanto por un interés privado de la defensa (en tutela de sus derechos y garantías), como por un interés superior y público, pues sin duda, a la colectividad le debe interesar la correcta aplicación del Derecho. Conforme lo resolvió el juez penal (en la etapa intermedia) y el tribunal en pleno (en la fase plenaria) la prueba identificada con los números 563, 564, 578 y 579, es lo que se denomina prueba ilícita, es decir, aquella prueba obtenida, incorporada al proceso o valorada en quebranto de los derechos fundamentales, que conlleva perjuicio para alguna de las partes del proceso.

En el contexto del derecho procesal penal se trata de la lesión al debido proceso (garantía judicial consagrada en el artículo 39 de la Constitución Política y en instrumentos internacionales como la Convención Americana sobre Derechos Humanos, artículo 8); pero también del quebranto de otros derechos fundamentales de todo ciudadano como la dignidad, la salud, la intimidad del domicilio, la correspondencia, las comunicaciones, etc.. En Costa Rica la prueba ilícita no tiene valor, así lo establece el artículo 181 CPP: “Los elementos de prueba sólo tendrán valor si han sido obtenidos por un medio lícito e incorporado al procedimiento conforme a las disposiciones de este Código. (…)”. Es decir, la averiguación de la verdad real o material, no autoriza usar medios probatorios ilegítimos, así lo ha reiterado tanto jurisprudencia de la Sala Constitucional (votos Nº 1739-1992, 1422-1994, 2334-2000, 9127-2001), la Sala Tercera (votos Nº 53-F-1992, 47-92-1992, 614-1995), como varios pronunciamientos de los Tribunales de Casación Penal (votos Nº 66-F-1999, 422-2000, del Segundo Circuito Judicial de San José).

En el sub examine, como ya se ha reiterado, el Ministerio Público requería para acceder a la prueba de su interés en este reclamo, de una autorización jurisdiccional que ponderara su licitud, su utilidad, su pertinencia, porque asentir a ella representaba una invasión a un derecho fundamental (la intimidad) y esa circunstancia era de pleno conocimiento del ente fiscal, dentro de un sistema procesal penal como el nuestro, de corte marcadamente acusatorio (donde la acusación y la investigación están a cargo del Ministerio Público) pero donde se optó también por reforzar el rol del juez como contralor de garantías y derechos fundamentales, para aprobar o no determinados actos probatorios. Resultan numerosas las normas referentes al tema, destacando el artículo 290 del Código Procesal Penal que establece: “El Ministerio Público practicará las diligencias y actuaciones de la investigación preparatoria que no requieran autorización judicial ni tengan contenido jurisdiccional…” Y más claro aún, el numeral 277: “Corresponderá al tribunal del procedimiento preparatorio realizar los anticipos jurisdiccionales de prueba, resolver excepciones y demás solicitudes propias de esta etapa, otorgar autorizaciones y, en general, controlar el cumplimiento de los principios y garantías establecidos en la Constitución, el Derecho Internacional y Comunitario vigentes en Costa Rica y en este Código…

Los fiscales no podrán realizar actos propiamente jurisdiccionales y los jueces, salvo las excepciones investigación”. En razón de lo expuesto, se declara sin lugar el recurso formulado por el Ministerio Público.

XVI.RECURSO FORMULADO POR LOS LICENCIADOS GILBERTO CALDERÓN ALVARADO Y MIGUEL HORACIO CORTÉS CHAVES, DE LA PROCURADURÍA GENERAL DE LA REPÚBLICA.- A. Los licenciados Gilberth Calderón Alvarado, Procurador de la Ética Pública, Miguel Horacio Cortés Chaves, Procurador Adjunto de la Ética Pública, en calidad de representantes del Estado, constituidos como Actores Civiles y con fundamento en lo dispuesto por los artículos 1, 3 incisos a) y h), 20 y 21 de la Ley Orgánica de la Procuraduría General de la República; 1, 4, 6, 7, 16, 37, 38, 40, 116, 142, 368, 437, 438, 439, 458, 459 y 460 del Código Procesal Penal, 103, 105 y 106 del Código Penal, 1045 siguientes y concordantes del Código Civil, 11, 41 y 153 de la Constitución Política, 5 de la Ley Orgánica del Poder Judicial y 7, 113 y 155 del Código Procesal Civil, presentaron recurso de casación (visible en el tomo XXXVI, folios 17300 a 17385) en contra de la sentencia dictada por el Tribunal de Juicio del Segundo Circuito Judicial de San José, de las quince horas del veintisiete de abril de dos mil once y protestan en el pronunciamiento se omitió pronunciamiento de fondo sobre las acciones civiles formuladas por la Procuraduría General de la República en contra de los demandados civiles [Nombre015], [Nombre009], [Nombre004], [Nombre012], [Nombre024], [Nombre021], [Nombre001], [Nombre018], [Nombre007], Servicios Notariales QC S.A., Punto de Negocios L.Q.C.S.A., Selva de la Marina S.A., Quántica S.A., Gambusinos S.A. y Finca Salitral S.A..Explican que la Procuraduría General de la República participó ejerció dentro de este proceso, acción civil por el Daño Social que causaron los hechos de corrupción investigados, demandando solidariamente a todos los imputados y algunas empresas que de alguna manera tuvieron participación en los hechos, sin embargo, acusan que ese reclamo no fue resuelto por el tribunal sentenciador, alegando supuestas deficiencias en las demandadas civiles.

De igual forma, los mencionados procuradores formularon recurso de apelación de sentencia (visible en el tomo XXXVIII, folios 171982 a 172067) contra el fallo referido. Dada la coincidencia de reclamos en ambas impugnaciones, se expone los reclamos, con algunas citas textuales del segundo de ellos, correspondiente al recurso de apelación de sentencia. B.- Primer motivo.- "Contradictoria fundamentación lo que produce incoherencia en la sentencia" (Cfr. folio 171985). Señalan los gestionantes que aún cuando en el pronunciamiento se reconoce un plan delictivo para corromper a los funcionarios públicos, se omite resolución sobre la acción civil resarcitoria formulada y en afectación del daño social ocasionado, en quebranto del artículo 142 CPP. Citan en lo que interesa el voto Nº 334-2004, de las 9:58 horas del 2 de abril: «"El reclamo es de recibo: Los juzgadores están obligados a fundamentar sus resoluciones de manera clara y precisa, expresando las razones de hecho y de derecho en que basan su, fállo, así como la indicación del valor otorgado a los medios de prueba - artículo 142 del Código Procesal Penal -, lo que implica que la ,fundamentación de la sentencia se encuentra sometida a controles, a la prueba y a los límites procesales impuestos.

Al valorar los elementos de convicción, el juez debe sustentarse en dos criterios esenciales: su legitimidad y la razonabilidad del análisis, u efecto de evitar un examen antojadizo y arbitrario, de tal manera que su decisión responda a criterios objetivos, expresando con claridad, precisión y certeza las razones que le permitan arribar a un juicio legítimo y válido, y que, en caso de discrepancia, pueda ser examinado por una instancia superior de control, que determine si el fállo dictado ha respetado o no los principios y derechos fundamentales de las partes involucradas en el contradictorio. " (Subrayado nuestro).» (Cfr. folio 171986). Aseguran que en los hechos de las demandas civiles formuladas (que reproducen en el escrito), se estableció un plan delictivo estructurado por parte de varios de los demandados civiles ([Nombre015], [Nombre035] y [Nombre009], junto con las empresas demandadas civiles Alcatel CIT y Servicios Notariales QC S.A), para corromper a varios funcionarios públicos con el propósito de beneficiarse económicamente, de favorecer los intereses económicos personales y de la empresa Alcatel CIY, en la contratación de las 400 mil líneas celulares con el Instituto Costarricense de Electricidad.

Es más, aseguran que así se indica en los hechos probados de la sentencia, de los que se reproducen los siguientes parágrafos: «"48) Sin precisar , fecha exacta, pero aproximadamente a partir de mayo de 2000, el imputado [Nombre015] y [Nombre035] planean o gestan la idea de buscar, ofrecer y entregar dádivas consistentes en dinero a.iiincionarios públicos que tuvieran injerencia n poder de decisión con respecto a las contrataciones del I. C. E y dentro del ámbito político. Lo anterior con el propósito de que se,fávoreciercr a la empresa Alcatel mediante la apertura a las licitaciones públicas en materia de telefonía celular GSMy en la adjudicación de las,fúturas licitaciones en esta materia, así como para obtener a su, fávor cuantiosas .sumas de dinero. Como parte de su estrategia, acordaron que la efectiva entrega del dinero que prometieran a los.funcionarios lo harían en , forma indirecta, a través de una tercera persona, el acusado [Nombre009]...

"."50) Entre los encartados [Nombre009] existe una relación de parentesco por afinidad, puesto que la esposo de [Nombre015], es hermana de [Nombre009]. Los lazos de afinidad y la relación de con lanza, así como por el vínculo descrito de [Nombre009] con la empresa Servicios Notariales QC S.A. y el manejo de su cuenta con el Banco Cuscatlán. motivaron que [Nombre009] se incorporara en la planeación y estructuración del plan delictivo mencionado; a sabiendas de que todos se beneficiarían personalmente con parte del dinero proveniente de Alcatel CIT. "."51) Con el anterior propósito, el imputado [Nombre015],junto con el sentenciado [Nombre035], de común acuerdo con el imputado [Nombre009], decidieron utilizar la cuenta bancaria de Servicios Notariales QC S.A. (...) como la receptora de los dineros entregados por Alcatel CIT, para posteriormente, distribuirlos entre los, fúncionario.s y políticos ímprobos que se indicará".

"52) Como parte del plan previamente trazado, el sentenciado [Nombre035] y los acusados [Nombre015] y [Nombre009], con la,finalidad de encubrir el pago de las dádivas ilícitas y justificar las tran.sférencias millonarias de dinero a ,favor de los fúncionarios públicos, aprovecharon la relación comercial que se había mantenido entre Servicios Notariales QC S.A. con Alcatel CIT, que el] la suscripción de acuerdos de consultorio era representada por la empresa Alcatel Standard S.A". "56) Conforme al plan ideado con el imputado [Nombre015] y el sentenciado [Nombre035] para corromper a füncionarios públicos. dentro de las tareas por cumplir, al encartado [Nombre009] le correspondía la recepción del dinero proveniente de la empresa Alcatel CIT y realizar los pagos ilícitos a los funcionarios ímprobos." "59) La empresa Alcatel CIT canceló cada uno de los montos correspondientes a los contratos referidos y el sentenciado [Nombre035] junto a los acusados [Nombre015] y [Nombre009], obtuvieron el dinero que utilizaron para el pago de las dádivas a los, füncionarios públicos".

"60) El imputado [Nombre009], conforme a la parte del plan que le correspondía realizar, procedió a hacer las entregas de dinero a cada uno de los ,funcionarios que le indicaron el encartado [Nombre015] y [Nombre035] conforme se expondrá." » Agregan que en la parte considerativa de la sentencia, se tiene por establecido ese plan delictivo, lo que evidentemente acarrea responsabilidad civil, citando varios extractos en amparo de esa afirmación. Concluyen que el razonamiento del tribunal es "absolutamente contradictorio", por un lado determina que los demandados civiles sí participaron de un acuerdo común en el plan delictivo como corruptores y por el otro, omite el conocimiento de la acción civil planteada en su contra; lo que constituye a su entender, un quebranto al principio de no contradicción. Solicitan se declare la nulidad de la sentencia. C.- Segundo motivo.- "Fundamentación contradictoria" (Cfr. folio 172006).

Alega que los hechos delictivos demostrados en juicio de corrupción, provocaron un grave daño social, según lo establece el artículo 38 del Código Procesal Penal y conforme se consignó en el fallo, cuando a folio 1625 se establecio: «"Contrariamente dada su participacíón delíctiva desde el primer Poder de la República, así como el grave daño socíal ocasionado y el significativo monto percibido a título de dádiva, bajo ninguna circunstancía se estima merecedor de su concesión. "(El resaltado es nuestro)» (Cfr. folio 172006). Daño al cual en múltiples ocasiones el tribunal hace referencia en sus argumentaciones, tanto que ello justifica el delito y las penas impuestas; como se ilustra en la sentencia, entre otros, al analizar el reproche en contra de [Nombre012] o, de [Nombre015]. Del último se reproduce la siguiente cita del fallo: «"De manera que, en la producción del daño social y lesión al bien jurídico, el mayor aporte,fue de [Nombre015] pues actúa siguiendo un esquema previamente establecido con ese fin, sabía cómo poner en marcha el mismo, definir el monto "adecuado" para hacer la promesa y provocar su aceptación, entre otras acciones reveladoras de que en todo momento actuó calculadamente, no así [Nombre026], quien desconocía la apuntada maquinación ilícita para la generación de la vulneración al bien jurídico y el impacto social señalados al desconocer. según él mismo lo refirió, que hubiera otras personas involucradas o la magnitud de las propuestas corruptoras de [Nombre015].

De ahí que el mayor reproche en cuanto a la generación del daño también corresponde a [Nombre015]. " (Lo subrayado no es del original)» (Cfr. folio 172007). Consideran los gestionantes que si la sentencia tiene por acreditada la existencia de un daño social y que todos los sentenciados actuaron bajo un solo fin (procurar que la empresa Alcatel CIT fuera la adjudicataria de las 400 mil líneas celulares), no era posible -sin incurrir en una fundamentación contradictoria- dejar de resolver la demanda civil en esta vía. Solicitan se admita el motivo y se proceda a resolver la demanda civil presentada. D.- Tercer motivo.- "Violación de la ley sustantiva por inaplicación de los artículos 11, 41 y 153 de la Constitución Política, 5 de la Ley Orgánica del Poder Judicial, 1, 4, 6, 7 y 40 del Código Procesal Penal, 103 inciso 2) del Código Penal, 1045 del Código Civil, 7 y 155 del Código Procesal Civil" (Cfr. folio 172009).

Señalan que al establecer el tribunal la imposibilidad de pronunciamiento sobre el fondo de la acción civil resarcitoria formulada por el Instituto Costarricense de Electricidad, así como la incoada por la Procuraduría General de la República, se violenta la normativa costarricense: el artículo 3 de la Ley de la Jurisdicción Constitucional, los artículos 11, 41 y 153 de la Constitución Política, porque existe una obligación de los jueces: resolver todas y cada una de las cuestiones sometidas a su conocimiento, sin poder dejar a las partes que han intervenido en un proceso, sin una resolución que dé respuesta a sus peticiones. El artículo 41, establece ese acceso a la justicia, una tutela judicial efectiva, pronta y cumplida, ausente en la sentencia recurrida respecto a las acciones civiles interpuestas por la Representación del Estado. Más adelante invocan el principio de legalidad para subrayar el deber de los tribunales de resolver los asuntos sometidos a su conocimiento; también el derecho a la reparación de todo daño causado, así como el derecho a una justicia, pronta, cumplida, sin denegación y en estricto apego a las leyes.

Sobre el principio de legalidad, citan el voto Nº 440:98 de las 15:27 horas del 27 de enero; también refieren: "El Principio de Legalidad en el Estado de Derecho postula la especial vinculación de las autoridades al ordenamiento jurídico, a partir de la definición básica en la cual toda autoridad debe actuar en la medida en que se encuentre apoderada para hacerlo por el mismo ordenamiento y a texto expreso, de ahí que el ejercicio de la función jurisdiccional debe ser garantizada bajo la eficacia formal y material al punto de que las violaciones a la mera legalidad se convierten - por virtud del principio - en violaciones al debido proceso (conjunto de garantías que se traducen en derechos y obligaciones del proceso judicial) y correspondiente derecho a la legalidad y legitimidad constitucionales como medio para aplicar el derecho sustantivo" (Cfr. folio172012). Adicionan el reclamo con la transcripción del artículo 5 de la Ley Orgánica del Poder Judicial, los numerales 1, 4, 6, 7 y 40 del Código Procesal Penal, 103 del Código Penal, 1045 del Código Civil y los artículos 7 y 155 del Código Procesal Civil.

Invocan el voto Nº 619-2000, de las 11:20 horas del 9 de junio de la Sala Tercera: "La Constitución Política en su artículo 41 establece que toda persona ha de encontrar reparación para las injurias o daños sufridos, de conformidad con la ley. Además, expresa que a todos ha de hacérseles justicia pronta y cumplida, en estricta concordancia con el Derecho. Se observa en el ordenamiento constitucional un reconocimiento del derecho a la reparación, siempre bajo la égida de las disposiciones legales que correspondan. Nótese que en materia de reparación civil, una de las modalidades legalmente permitidas para realizarla es la indemnización pecuniaria. Asimismo, cabe decir que la Ley Fundamental costarricense es clara al establecer que la función jurisdiccional consiste en conocer cierto tipo de causas, resolver de manera definitiva sobre ellas y ejecutar lo juzgado (artículo 153). Así las cosas, si hay un juez al que le compete el conocimiento de ciertos asuntos en particular, deberá acatar la legislación atinente.

Este principio se refuerza por lo señalado en el artículo 5 de la Ley Orgánica del Poder Judicial, en el sentido de que corresponde al juez ejercer su autoridad y fallar los asuntos siguiendo las normas escritas y no escritas del ordenamiento, según su posición en la escala jerárquica". Se reitera la protesta por no resolverse el fondo de las acciones formuladas, así como la revisión a la vía civil para dirimir sus pretensiones, sobre lo cual indican: «La doctrina se ha pronunciado en el sentido de que "No resulta acorde con el principio de justicia pronta y cumplida enviar a las víctimas a un proceso civil, luego de que han escogido una vía, autorizada por una ley, para dirimir sus conflictos. Es decir, habría que empezar un nuevo proceso, generando mayores gastos y un evidente atraso en la decisión. Si los jueces penales deben manejar la materia civil para resolver las acciones civiles, no hay inconveniente en que se continúe con el proceso para alcanzar el fallo respectivo.

En todo caso, los problemas difíciles obtienen solución a través del estudio concienzudo de los jueces o bien como señala Núñez (1982, p.26) "... una vez establecido el sistema del juez del crimen, a fuerza de experiencia, se especializara en el asuntd" ". (Sanabria Rojas, Rafael Ángel. 2008. La Acción Civil Resarcitoria en el Proceso Penal Costarricense. Colegio de Abogados Editor. San José Costa Rica. Pág. 40). Por ello, cuando una de las partes civiles dentro de la vía penal interpone una acción civil resarcitoria, lo hace porque está escogiendo esa vía con la finalidad de que dentro de la misma se le resuelva su petición» (Sic. cfr. folio 172019). Agregan los impugnantes: «Es por medio del Acceso a la Justicia materializada a través de la administración de justicia, que las personas ejercen el derecho de obtener una respuesta ante la violación de alguna de sus garantías y así una solución eficaz y oportuna a un asunto tutelado por el derecho.

En este caso sucedió lo mismo, esta Procuraduría dentro del proceso penal presentó sendas acciones civiles en contra de los imputados y terceros civilmente responsables y desde el año 2004 a la fecha se han realizado actos tendientes a promover esas acciones, como la misma interposición de las acciones civiles, aclaraciones a las mismas, traba de embargos, contestación de recursos y finalmente la asistencia a casi un año de debate, donde se sostuvo la tesis de la existencia y cobro del daño social que generan los hechos de corrupción investigados. De ahí que no se comprenda cómo al final del debate, el Tribunal determinara mediante sentencia que le es imposible pronunciarse sobre el fondo de la misma, sin tener razón para ello, negación que causa un gravamen irreparable a esta Representación, ya que se convierte en una negación al acceso de la justicia y que se le resuelvan las situaciones planteadas, violentando así todos los principios citados arriba esto aparte de representar una denegatoria de acceso a la justicia, una flagrante violación al Principio de Tutela Judicial Efectiva y un rechazo al Principio de Justicia Pronta y Cumplida, es una clara omisión de los Jueces del Tribunal de Juicio a sus obligaciones, ya que dentro de las mismas se encuentra el deber de resolver todos los extrerrios que hayan sido sometidos a su conocimiento» (Cfr. folio172020).

Reproduce de forma parcial el voto Nº 12224-2001, de las 14:55 horas del 28 de noviembre, de la Sala Constitucional: "... la actividad que las partes y el,juez desarrollan en el proceso tiende a un fin común. cual es establecer la existencia de una voluntad de la ley sobre un bien determinado con respecto al actor y el demandado en la causa que se tramita. El acto por el cual el juez,formula esta declaración es la sentencia. En ella se resume la.fimción,jurisdiccional y por ella se .justifica el proceso, pues en éste y mediante la sentencia se hace efectivo el mantenimiento del orden jurídico. La sentencia debe referirse a un caso concretovertido, (sic) no pudiendo el juez dictar resoluciones en abstracto. Así, é.sta,función -la jurisdiccional- obliga al juez a 'juzgar", "opinar" y "valorar" los hechos objeto de la liti.s y adecuarlos al marco normativo vigente, por lo que contiene una decisión positiva y precisa de los mismos, es decir, es una ¡al.

El mandato constitucional y legal de "resolver definitivamente los asuntos sometidos al conocimiento de los tribunales de justicia" (resolución número 6494-93)" (Sic. cfr. folio 172021). Cuestionan que el tribunal sentenciador tuviera demostrado el daño moral y pese a ello, manifestara imposibilidad para resolver el fondo de las acciones civiles presentadas. Sobre ello señalan: "La única conclusión válida y lógica, es que la imposibilidad a que hace referencia era a determinar el quantum de los daños correspondiente a cada individuo y esto a todas luces, no imposibilita resolver el fondo de las acciones civiles y de ser necesario, remitir esta determinación del monto a la fase de ejecución de la sentencia, lo que sí les está autorizado por ley" (Cfr. folio 172022). Refiere que tanto jurisprudencia de la Sala Tercera como de los denominados Tribunales de Casación han coincido sobre la violación a la normativa cuando se omite pronunciamiento en aspectos de carácter civil, situación agravada, cuando no se resuelve nada en absoluto.

En amparo de ello, citan las siguientes resoluciones: (a) de la Sala Tercera los votos Nº 165-F-91, de las 9:00 horas del 26 de abril, Nº 105-2010, de las 11:00 horas del 17 de febrero; (b) del Tribunal de Casación Penal los votos Nº 186-2001 del 23 de febrero, el Nº 601-F-98, de las 9:25 horas del 31 de agosto; (c) de la Sala Constitucional el voto 8591-2002, de las 14;59 horas del 4 de setiembre. Consideran se dio la violación de toda la normativa invocada y solicitan se anule lo resuelto y se proceda a aplicar lo dispuesto en la normativa. V.- Cuarto motivo.- "Interpretación errónea de los numerales 1, 3, 20 y 21 de la Ley Orgánica de la Procuraduría General de la República, 38 del Código Procesal Penal, 1, 190, 191, 196, 197, 199, 201, 203, 205 y 206 de la Ley General de la Administración Pública y 105 del Código Penal" (Cfr. folio 172029). Critican que el tribunal de instancia estimara que la actuación de la Procuraduría General de la República, en este proceso, no fue en representación del Estado, motivo por el cual se dio una errónea formulación de las pretensiones civiles, que debieron tener por demandado civil al Estado, conforme a las reglas de responsabilidad dispuestas en la Ley General de la Administración Pública.

Es decir, consideran que el error de los juuzgadores fue estimar que habían más demandados civiles además de los establecidos en las acciones civiles formuladas. Refieren: «Ello, en razón de que los juzgadores realizan un análisis del artículo 106 del Código Penal concordándolo con los artículos 1, 190, 191, 196, 197, 199, 201, 203, 205 y 206 de la Ley General de Administración Pública para concluir que el Estado también debía estar como demandado civil junto con el Instituto Costarricense de Electricidad. Esos numerales que transcribe la resolución son erróneamente interpretados, primero, porque es la Procuraduría General de la República en representación del Estado quién ejerce el cobro del daño social causado por el actuar ilícito en su carácter personal de los imputados en esta causa por lo que no tiene lógica el citar los artículos en cuestión en la resolución y mucho menos realizar una interpretación para este caso.

Segundo, por cuanto quién debe gestionar la "supuesta responsabilidad" del Estado son los particulares no el Estado contra el mismo Estado ya que ésta es un instrumento básico de las relaciones administración (sujeto activo) -administrado (sujeto pasivo) "se traduce en la facultad del administrado de exigirle a la Administración Pública que le ha inferido una lesión antijurídica o que ha incumplido una obligación administrativa preexistente impuesta por el ordenamiento jurídico el resarcimiento de su esfera patrimonial o extrapatrimonial. ... Este derecho puede ejercitarse o no por el damnificado o lesionado como facultativo que es para su titular y la forma de ejercerlo es deduciendo las pretensiones o accionando contra el ente público obligado." Para el surgimiento de la obligación de reparación o resarcimiento en un ente público deben concurrir varias condiciones que son las siguientes:

• 1)actuación u omisión imputables a la Administración Pública,
• 2)una lesión antijurídica que el administrado o victima no tiene el deber de soportar y
• 3)una relación directa e ínmedíata de causa a efecto entre la actuación u omisión administrativa y la lesión antijurídica" (Jinesta Lobo, Ernesto. Tratado de Derecho Administrativo. Tomo II. Responsabilidad Administrativa. San José. 2005. Págs. 97 y 98). Por ello, bajo la tesitura del Tribunal cabe realizar las siguientes interrogantes: era el Estado demandado civil? Fue el Estado contrademandado civilmente? Las respuestas a las preguntas anteriores son negativas. El Estado no fue demandado civil, el Estado no fue contrademandado. Entonces, ¿por qué es que se hace éste análisis?, para determinar una responsabilidad del Estado que no estaba siendo solicitada ni discutida, una responsabilidad del Estado que no fue alegada por lo medios legales que establece la normativa procesal, por lo que no existe imputados eran funcionarios públicos.» (Cfr. folios 172030 a 172031). Señalan los impugnantes que en este proceso no se ventiló la responsabilidad estatal porque ningún particular o administrado entabló demanda civil contra el Estado «... por la "supuesta responsabilidad" que únicamente extraña el Tribunal al establecerlo como parte dentro de siete de los ocho grupos de responsabilidad solidaria que subjetivamente determinó, por cuanto no indica cuáles son los parámetros que utilizó para agrupar a las personas y que dentro de éstas se encontraba el Estado, o establecer el nexo causal para imputar la responsabilidad solidaria de éste con los funcionarios públicos, porque el simple hecho de ostentar la investidura no basta para que el Estado sea responsable sino que se debe demostrar las condiciones para que concurra y en este caso, el Tribunal no hace una exposición de los elementos probatorios que lo llevan a concluir que la actuación de los imputados es atribuible a la Administración Pública, tampoco establece la relación directa de causa a efecto entre la actuación de los condenados atribuible al Estado y de ahí la lesión antijurídica, sino que simplemente se limita a indicar el Tribunal en su resolución que; "La particularidad de este proceso, es que no todos los imputados tuvieron participación en todos los hechos delictivos acusados, más bien se parte de la intervención de grupos de imputados en determinados hechos, circunstancia que obliga a tener que determinar y especificar cada grupo de imputados y terceros demandados civiles que pudiera resultar obligados solidarios entre sí, con relación también a determinados hechos y determinados daños que esos específicos hechos pudieron haber causado, con lo cual se llega a la conclusión que no existe un daño por el cual debe responder solidariamente todos los imputados y eventualmente terceros, que es el supuestos sobre el cual se liquidaron las pretensiones civiles por parte del Instituto Costarricense de Electricidad y la Procuraduría General de la República. Lo que podría existir son daños causados por la conducta delictiva de determinados grupos de imputados, por el cual responderían solidariamente los imputados del grupo y eventualmente terceros, en forma independiente de los eventuales daños causado (sic) por otros grupos de imputados. Del estudio de la acusación, y en aplicación de las reglccs de la solidaridad ya analizadas, se determina la existencia de los siguientes grupos de imputados y demandados civiles que podrían resultar obligados solidarios entre sí, por los daños y perjuicios que eventualmente pudieron haber causado, respecto de hechos concretos y determinados, hechos que no tienen relación entre sí, para los efectos de la determinación de la responsabilidad civil, aun y cuando algunos de los grupos, tengan como común denominador a ciertas personas,fi.sicas o jurídicas. 1.- [Nombre015], [Nombre009], [Nombre004], Alcatel Cit, el Estado, el Instituto Costarricense de Electricidad. Servicios Notariales O. C.'., Selva La Marina S. A., Gambusinos S A., Finca Salitral S. A., Quántica S. A. y Punto de Negocios L. Q. C. S. A., todos ellos en relación con los delitos de penalidad del corruptor atribuidos a [Nombre015] y [Nombre009] y corrupción agravada atribuida a [Nombre004]. 2.- [Nombre015], [Nombre009], [Nombre001], Alcatel Cit, el Instituto Costarricense de Electricidad, Servicios Notariales Q. C., Selva La Marina S. A., Gambu.sino.s S. .9., Finca Salitral S. A., Quántica S. A. y Punto de Negocios L. Q. C. S. A., todo ello en relación con los delitos de penalidad del corruptor atribuido a [Nombre015] y [Nombre009] y corrupción agravada atribuida a [Nombre001]. 3.- [Nombre015], [Nombre009], [Nombre021], [Nombre024], Alcatel Cit, el Estado, el Instituto Costarricense de Electricidad, Servicios Notariales Q. C., Selva La Marina S. A., Gambu.sinos S A., Finca Salitral S. A., Quántica S. ,9. y Punto de Negocios L. Q. C. S A., todos ellos en relación con el delito de enriquecimiento ilícito atribuido (así recalificado) a [Nombre021], y los delitos de enriquecimiento ilícito yfávorecimiento real atribuidos a [Nombre024]. 4.- [Nombre015], [Nombre009], [Nombre026], [Nombre012], Alcatel Cit, el Estado, el Instituto Costarricense de Electricidad. Servicios Notariales Q. C., Selva La Marina S. A.. Gambusino.s S. A., Finca Salitral S. A., Quántica S. A. y Punto de Negocios L. Q. ('. S. A., Iodos ellos en relación con los delitos de penalidad del corruptor atribuido a [Nombre015] y [Nombre009] y corrupción agravada atribuida a [Nombre026] (suspendida la acción penal por criterio de oportunidad) e instigación a la corrupción agravada atribuido a [Nombre012]. 5.- [Nombre015], [Nombre009], [Nombre007], Alcatel Cit, el Instituto Costarricense de Electricidad, Servicios Notariales Q. C., Selva La Marina S. A., Gambusinos S. A., Finca Salitral S. A., Quántica S. A. y Punto de Negocios L. Q. C. S. A., todos ellos en relación con 3 delitos de enriquecimiento ilícito atribuidos a [Nombre007]. 6.- [Nombre064], [Nombre018], [Nombre027], Alcatel Cit, el estado y el Instituto Costarricense de Electricidad e Intelmar S. A., en relación con los hechos de penalidad del corruptor atribuidos a [Nombre064] (ya condenado) y [Nombre018] y corrupción agravada atribuida a [Nombre027] (ya condenado). 7.- [Nombre018], [Nombre026], el Estado y el Instituto Costarricense de Electricidad en relación con los delitos de penalidad del corruptor atribuidos al primero y corrupción agravada al segundo.8.- [Nombre012] y el Estado en relación con cuatro delitos de enriquecimiento ilícito atribuidos a [Nombre012]. (El resaltado no es del original. Folios 1884 a 1886). Además, en el folio 1887 determina que "Al procederse por parte de los actores civiles (Procuraduría General de la República e Instituto Costarricense de Electricidad), a liquidar pretensiones de la manera que lo hicieron, dejan al Tribunal imposibilitado para pronunciarse en cuanto al ,fondo de las mismas. Para pronunciarse válidamente, tendría el Tribunal que disgregar los diferentes grupos de deudores solidarios, determinar los hechos concretos que le son atribuibles y determinar el eventual daño que esos hechos pudieron haber causado al Instituto Costarricense de Electricidad v o a los intereses colectivos y difusos que representan la Procuraduría General de la República. A partir de lo anterior es que se podrían valorar las pretensiones civiles, que tendrían que se modificadas de acuerdo con los supuestos , fáctico.s mencionados, que son la causa de las mismas. Lo anterior no es tarea que pueda realizar el Tribunal, porque se trata de extremos cuya determinación son de resorte exclusivo de las partes v no del Tribunal, quien de hacerlo perdería su objetividad e imparcialidad al suplir las deficiencias de las partes y violaría el principio de congruencia, al resolver, fuera de lo pedido".» (Cfr. folios 172032 a 172034). Para los accionantes ese análisis sería aceptable si al Estado se le requiriera algún tipo de responsabilidad civil, pero en este caso no. Con ello, alegan una violación al principio de congruencia y de autonomía de la voluntad de las partes; pues se incluyeron nuevos demandados civiles, a los que se asigna responsabilidad, resolviendo más allá de lo pedido, sorprendiendo a todos, pues fue en sentencia (después de un proceso de casi siete años), cuando se mencionan los nuevos demandados civiles. Invocan el voto Nº 618-F-SI-2010, de las 9:15 horas del 20 de mayo, sobre el principio de congruencia: "(...) un principio a partir del cual el juzgador, cuando resuelve en sentencia, debe ajustarse a lo solicitado por las partes. Si se aparta de las pretensiones materiales de la demanda, podría incurrir en distintos vicios. Ultra petita, si otorga más allá de lo pedido. Extra petita, cuando agrega extremos nunca solicitados ni debatidos por los litigantes. Otra petita, en caso de omitir el pronunciamiento sobre puntos discutidos entre las partes. Asimismo, podría haber incongruencia por disposiciones contradictorias en el fallo". Precedente claro, sobre cómo las peticiones de las partes son las que delimitan la materia del debate judicial. Más adelante cita el siguiente fragmento del fallo, visible a folio 1892: "La Procuraduría General de la República no podía obviar, al formular la acción civil resarcitoria y sus pretensiones, que el Estado y el Instituto Costarricense de Electricidad eran también señalados por la ley como obligados solidarios a responder por los daños y perjuicios a los intereses colectivos o difusos, cuya indemnización se pretende. Lo anterior porque en la eventual producción de los daños y perjuicios intervinieron funcionarios públicos del Poder Ejecutivo, del Poder Legislativo y del Instituto Costarricense de Electricidad.': Líneas más adelante "al igual que los Tribunales del procedimiento preparatorio e intermedio, las partes demandadas civiles también pudieron haber alegado los defectos apuntados a las acciones civiles resarcitorias en las etapas previas y no esperar a las conclusiones del debate, en cuyo caso también tuvieron su cuota de responsabilidad en que no se superaran los defectos y pudiera el Tribunal pronuncíarse sobre el fondo de las alegaciones, pretensiones y excepciones formuladas". Del cual critican los recurrentes, se emite criterio sobre un tema nunca discutido -la supuesta responsabilidad estatal y su correspondiente solidaridad y compensación-, y por el cual, se argumenta fue imposible resolver el fondo del asunto, pero sin que esa fue una pretensión alegada. Estiman que aún cuando algunos los defensores al emitir su conclusiones hicieran mención al tema de la responsabilidad estatal frente a las actuaciones de los funcionarios públicos, no constituye un planteamiento formal capaz de ser acogido por el tribunal. Insisten que la Procuraduría General entabló acciones civiles para reclamar el daño generado (que afectó todo el país), por el plan ideado por los corruptores y corruptos, para garantizar la licitación de las 400 mil líneas a cambio de dádivas, lo que tuvo por demostrado en los folios 1216 y 1217 de la sentencia. Por ende, se quebrantó el principio de congruencia al omitir pronunciamiento sobre las demandas civiles y sus pretensiones, en concreto, la condena por el daño social causado por los hechos ilícitos ventilados en esta causa, por parte de todos los imputados. Se violentó el principio de autonomía de la voluntad de las partes, porque los juzgadores lejos de resolver las pretensiones planteadas por las partes involucradas (como era su deber) atribuye responsabilidad a los actores civiles (sin ostentar el carácter de demandado civil), sorprendiendo a todas las partes debidamente constituidas. Agregan: "Argumenta el Tribunal, en términos generales y refiriéndose a los actores civiles -ICE y Procuraduría General- ante los hechos que generen responsabilidad civil y en los que participen funcionarios públicos, que por Ley tienen responsabilidad, y puede ser cierto, si fuera una responsabilidad reclamada por sus administrados y si fueron demandados civiles, pero éste no es el caso, porque es el Estado como tal, el que está accionando para combatir la corrupción de sus funcionarios. Si el criterio del Tribunal fuera acogido, entonces el Estado o cualquier institución autónoma, que quisiera denunciar o perseguir la corrupción de sus funcionarios sería civilmente responsable? No podría el Estado o cualquier institución autónoma, tratar de limpiar su casa de corrupción, sin verse responsable civil ante los mismos hechos que denuncia? El argumento es ilógico y a todas luces improcedente. Como se indicó supra, el Tribunal equivoca su decisión, ya que se ubicó en un proceso donde la responsabilidad la solicita un administrado ante el Estado, pero no es este el caso, ya que en este proceso es el propio Estado quien solicita la responsabilidad de sus funcionarios corruptos, una responsabilidad hacia la sociedad" (Cfr. folio 172039). Destacan que los actores habían escogido la vía penal para formular sus reclamos civiles y los juzgadores eran competentes para resolverlas, por tanto, critican y califican como errada su decisión de remitirlos a la vía civil, a partir de una interpretación equivocada de la Ley General de la Administración Pública, de la Ley Orgánica de la Procuraduría General de la República (numerales 1 y
• 3)y el artículo 38 del Código Procesal Penal. "El Tribunal considera desde su equivocada óptica, que al tener responsabilidad el Estado, la Procuraduría en representación de los intereses colectivos y difusos, según lo establece el artículo 38 del Código Procesal Penal, debió demandar esa responsabilidad al Estado y al no hacerlo incurrió en una violación de los artículo 20 y 21 de su Ley Orgánica, lo que también está equivocado. Si bien es cierto la Procuraduría participó en el presente proceso ejerciendo una acción civil resarcitoria por afectación de los intereses colectivos y difusos, al tenor de lo establecido en el numeral 38 del Código Procesal Penal, también es lo cierto, que a raíz de esta actividad no desaparecen las demás funciones o representación que la Procuraduría ostenta, de acuerdo a su Ley Orgánica..." (Cfr. folio 172041). Más adelante agregan: "En el sentido apuntado, es claro que la atribución de poder ejercer la acción civil "cuando se trate de hechos punibles que afecten intereses colectivos y difusos'; consignada en el artículo 38 del Código Procesal Penal, es una facultad más dispuesta por el legislador para que la Procuraduría desempeñe sus labores y el hecho de ejecutar esta facultad, de ninguna forma podría dar a entender que deja de ser lo que es o de cumplir sus otras atribuciones, sea considerar como lo hace el Tribunal, que esta Representación al ejercer la facultad de interponer una acción civil por hechos punibles que afecten intereses difusos y colectivos, que para efectos del proceso es una "legitimación para accionar'; dejaría de ser el representante legal del Estado, que es una 'representación legal otorgada por ley'; no tiene ningún asidero legal y son dos cosas completamente diferentes. Desde este punto de vista, interpretar que en el presente proceso ha existido una inobservancia de nuestras obligaciones contenidas en los artículos 20 y 21 de la Procuraduría General de la República, por no haber demandado al Estado al ser considerado responsable civil -en la lógica del Tribunal- entiéndase no demandar a nuestro "representado legal", es completamente ilógico e irracional, desde el punto de vista legal y sería ir en contra de nuestra ley orgánica y del mandato en ella contenido. De allí que el razonamiento del Tribunal deviene equivocado y por ende hace caer a la sentencia impugnada en el vicio de errónea interpretación por la mala apreciación de las normas que tiene como sustento, sea los artículos 1, 20 y 21 de ese cuerpo normativo." (Cfr. folio 172048 y 172049). Respecto a lo previsto en el artículo 38 del Código Procesal Penal, consideran claro se confiere a la Procuraduría una atribución más, pero no una representación (que puede o no, ser ejercida). Afirman un error del Tribunal al equiparar la legitimación procesal (para accionar) con una representación legal (de los intereses colectivos o difusos), luego, citan el artículo 1 de la Ley General de la Administración Pública con el propósito de distinguir ambos institutos y señalan: "El artículo 38 le otorga a la Procuraduría la legitimación necesaria para accionar civilmente en los casos de hechos punibles donde se ven afectados intereses colectivos o difusos para cobrar el daño social, pero no es más que una atribución que legitima su participación en el proceso, si se busca quien ostenta la representación legal de la sociedad o quien representa los intereses colectivos o difusos de una sociedad, tendríamos que remitirnos a los conceptos anteriores para concluir que es el Estado como figura mayor y primaria de la Administración Pública quien representa a la sociedad y sus intereses. Por ende, sostener como lo hace el Tribunal que la Procuraduría representa los intereses difusos y colectivos a tenor del artículo 38 del Código Procesal Penal, no solo es jurídicamente improcedente, ya que según esta interpretación un artículo (el artículo 38 del C.P.P.) estaría desaplicando una Ley (Ley Orgánica de la Procuraduría General) y solo para casos específicos, sino que además se volvería a caer en la imposibilidad, según lo explicado, de que la Procuraduría demande civilmente a su representado, quien además, es el representante de los intereses que se pretenden proteger" (Cfr. folio 172050 y 172051). Antes dicho yerro, señalan los gestionantes, solicitan la nulidad de la sentencia y la aplicación correcta de la normativa invocada. VI.- Quinto motivo.- "Interpretación errónea de los artículos 106 del Código Penal, 1046 del Código Civil y 113 del Código Procesal Penal" (Cfr. folio 172051). Cuestionan el análisis efectuado en sentencia sobre la responsabilidad solidaria de los demandados civiles, a quienes dividen en grupos y que desde la perspectiva de la Procuraduría General de la República resulta errada, pues estima factible exigir esa responsabilidad solidaria a todos los demandados civiles. En apoyo de su criterio cita el voto 645-2010, de las 15:00 horas del 4 de junio de 2010, que en lo interesa establece: «El carácter definitorio de la obligación solidaria, consiste en que "... cada deudor se halla comprometido directamente al pago de toda la deuda... " (Brenes Córdoba, Alberto: Tratado de las Obligaciones, 7a edición, Juricentro, San José, 2006, pp. 56-57). Más adelante el mismo autor especifica: "...Lo que propiamente constituye la solidaridad... (es) la circunstancia de hallarse directamente respondíendo 'por el todo y como deudor del todo'; que es el sentido de la frase latina in totum et totalíter que suele emplearse para caracterizar el compromiso solídarío.. . " (O p. C i t, p. 58). Precisamente el derecho de elección del acreedor, o la facultad "...dé exigir la prestación de uno de los deudores, de todos a la vez, o sucesivamente... "(Op. Cit, p. 59), es la garantía que se ofrece a este con la solidaridad (artículo 640 del Código Civil), la cual viene al traste con la división en cuotas que efectuó el a quo, partiendo de una errónea interpretación del artículo 135 de las reglas vigentes sobre responsabilidad civil, del Código Penal de 1941, norma que también invocan de manera equivocada los recurrentes. Dispone el mencionado numeral 135: "...Es solidaria la obligación de los partícipes en un hecho punible en cuanto a la reparación civil; pero entre ellos cada uno responderá por la cuota que le señale el juez, según su particípación... ': La frase "-cada uno responderá por la cuota que le señale el juez, según su participación... "por supuesto, no se refiere a la división de la responsabilidad o su conversión en una obligación mancomunada. Más bien, se refiere a la acción de regreso que, entre ellos, poseen los deudores solidarios (numeral 651 del Código Civil). Es decir, que luego de operado el pago parcial o total por parte de alguno de los deudores, éste puede reclamar de los otros la devolución del pago que les corresponde resarcir, junto con los costos e intereses que devengue desde el día del pago, en razón de su cuota de responsabilidad. Sin embargo, se trata de un derecho de los codeudores solidarios, que estos podrán ejercer con posterioridad, y no una facultad oponible al acreedor, ni una estipulación a favor de la división en cuotas por parte del Tribunal pues como se dijo, ello anularía la garantía de elección, intrínseca a la obligación solidaria. Finalmente, cabe indicar que el hecho de que los actores civiles no hayan impugnado la distribución del pago total del daño moral en cuotas o fracciones, ocurrida en la sentencia impugnada, no implica renuncia tácita de la solidaridad y por ende, del derecho de elegir contra quién accionan para ejecutar la obligación existente a su favor. Ello es así, porque las razones para tener por relevada la solidaridad, se encuentran estipulados de manera taxativa, en el artículo 647 del Código Civil, amén de que "... La renuncia a la solidaridad no se presume, porque nunca es de presumir la intención de donar o de hacer abandono inmotivado de un derecho..."' (Brenes Córdoba, Op. Cit, p. 62).". Debiendo bajo este correcto entendimiento el Tribunal condenar a todos los endilgados a! pago total del daño social sufrido no la proporcionalidad respecto de cada grupo por cuanto todos contribuyeron mediante una función específica al éxito de la realización del plan general de acción» (Cfr. folios 172054 y 172055). Reiteran que se solicitó la responsabilidad solidaria de todos los partícipes (conforme a lo dispuesto en los artículos 106 del Código Penal y 1046 del Código Civil), por ello el tribunal debió resolver el fondo, pues aún cuando los dividió a los demandados en grupos, siempre aludió la responsabilidad solidaria de esas personas (citando los gestionantes, el voto de la Sala Tercera Nº 238-2009, de las 9:48 horas del 13 de marzo, sobre el tema). Consideran quebrantados los artículos 106 del Código Penal, 1046 del Código Civil y 113 del Código Procesal Penal, destacando que el último de los preceptos prevé la posibilidad de que el actor civil dirija su demanda en contra de los demandado que estime pertinente (por el principio de autonomía de las partes), citando el texto del Dr. Juan Marcos Rivero Sánchez (Responsabilidad Civil, Tomo II, segunda edición, página 347), también al Dr. Javier Llobet Rodríguez, en su obra Proceso Penal Comentado, cuarta edición, página 269, cuando comenta acerca del artículo 113 del Código relacionado e indica: "Al ser el ejercicio de la acción civil de interés privado, el que se cree damnificado puede dirigir la acción contra uno o varios de los imputados, contra uno o varios de los posibles demandados civiles, o bien contra todos. ... En cuanto a la responsabilidad civil es importante tener en cuenta que se contempla en el Código Penal una responsabilidad solidaria de todos los partícipes, lo que implica que en principio no es necesario demandar a todos los imputados, sino el actor civil puede escoger a quienes demandar, desde esta perspectiva no exisle una litisconsorcio pasiva necesaria". Los gestionantes mencionan sobre el particular votos de este Tribunal (638-2006, de las 15:45 horas del 28 de junio). Sobre el argumento del Tribunal de instancia, respecto a que los imputados participaron en diferentes etapas o con diferentes conductas, consideran que el problema no compete la determinación del daño, sino su cuantificación en relación con la participación de cada demandado, aspecto que no les impedía a los juzgadores resolver el fondo de la acción civil, para que fueran condenados solidariamente y se remitiera entonces a la vía correspondiente, para determinar el quantum de cada uno. En cuanto a la oposición del criterio de los grupos de solidaridad entre los demandados (mantenido en sentencia) y la defensa de la solidaridad de todos, refieren: "El daño que se reclama es el daño social que causan los hechos de corrupción y este daño está enfocado a resarcir a la sociedad que se ve afectada por hechos de corrupción de sus funcionarios públicos, desde este punto de vista se afecta a la sociedad como un todo y no a sus individuos en forma particular, por lo que el daño sufrido es general y es uno. Además de las acciones desplegadas por los imputados se observa que todas van dirigidas a un fin común, en este caso que Alcatel lograra romper el monopolio de la oferta celular, que se realizara la licitación pública y que Alcatel fuera la adjudicataria, aspectos que se dieron y fueron tenidos por demostrados en la sentencia que ahora se impugna. Es decir, el Tribunal no analiza el fin común de las conductas desplegadas por lo imputados y como todas éstas, como hechos de corrupción, eran destinadas a obtener un fin común que era lograr la adjudicación final de un contrato. La construcción de grupos que realiza el Tribunal es muy subjetiva y parte de los delitos atribuidos a los imputados y según el concepto de funcionarios públicos utilizado para establecer la responsabilidad del Estado, que está equivocado, tal y como se vio líneas atrás. Además, que son hechos que tienen que ver entre sí, ya que el resultado perseguido y obtenido no fue el logrado por una sola persona, sino por todos ellos en conjunto. Para acreditar la subjetividad del Tribunal al determinar los grupos, pensemos nada más en que, si por otro lado, se determinaran los grupos por las acciones emprendidas por los representantes de Alcatel no existirían tales grupos, ya que éstos participan con todos los demás imputados en los presentes hechos" (Cfr. folios 172063 y 172064). Solicitan anular la sentencia y aplicar correctamente la normativa invocada.

XVII.SE RESUELVE EL RECURSO FORMULADO POR LA PROCURADURÍA GENERAL DE LA REPÚBLICA.- Sobre los extremos civiles formulados por los licenciados Gilberth Calderón Alvarado, Procurador de la Ética Pública y Miguel Horacio Cortés Chaves, Procurador Adjunto de la Ética Pública, en calidad de representantes del Estado, constituidos como Actores Civiles, ya esta Cámara acogió los reproches presentados por el licenciado Cristian Arguedas Arguedas, quien cuestionó la decisión del Tribunal de instancia de omitir pronunciamiento sobre las acciones civiles presentadas por la Procuraduría General de la República y el Instituto Costarricense de Electricidad; aplicándose el efecto extensivo y ordenando el reenvío para una nueva sustanciación conforme a Derecho sobre dichos extremos. Por economía procesal, se omite resolución expresa sobre las objeciones formuladas, pues versan sobre aspectos de fondo que deberán ser examinados justamente en el reenvío ya ordenado en cuanto a los extremos de la acción civil resarcitoria de interés.

XVII.RECURSO FORMULADO POR EL LICENCIADO MARIO NAVARRO ARIAS.- El licenciado Mario Navarro Arias, apoderado especial judicial de los demandados civiles, Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A.; La Selva de la Marina S.A; Servicios Notariales QC S.A., y [Nombre009] en su condición personal, con fundamento en los artículos 39, 41 de la Constitución Política, 1, 142, 184, 363, 367, 369 incisos b), c), d), 437, 438, 439, 447, 458, 459, 460 del Código Procesal Penal, se adhiere a los recursos de casación presentados contra la sentencia número 167-2011 dictada por el Tribunal Penal de Hacienda y la Función Pública, del Segundo Circuito Judicial de San José, 15 horas del 27 de abril de 2011, por los demandados civiles [Nombre012] y Alcatel Lucent-France, la Procuraduría General de la República y el Instituto Costarricense de el Instituto Costarricense de Electricidad (éstos últimos en condición de actores civiles).

Primer motivo.- Acusa falta de motivación en el rechazo de la condenatoria en costas, en infracción de los artículos 39 y 41 de la Constitución Política, 363 y 369 del Código Procesal Penal, pues el tribunal se circunscribe al hecho de haber desestimado las demandas civiles y, a atribuirle -en parte- a los demandados civiles responsabilidad sobre las consecuencias de las demandas. Califican de genérico ese razonamiento y reprochan la ausencia de un examen del trámite seguido de la acción civil dentro del proceso: la presentación de la demanda, su participación en la audiencia preliminar (donde se protestó por los defectos de la acciones civiles), así como en el contradictorio: "Ergo, esta representación NUNCA NI CONTRIBUYO NI ADMITIO LOS DEFECTOS DE LAS ACCIONES CIVILES, y NI QUE AFIRMAR DE LA ACCION DEL ICE, QUE MODIFICO SUS PRETENSIONES EN LA AUDIENCIA PRELIMINAR, CUANDO NO LO PODIA HACER Y EN LA ETAPA DE CONCLUSIONES cuando tampoco le estaba permitido hacerlo.

Y nosotros en condición de demandados civiles reclamamos esas circunstancias, CONSIDERANDO TEMERARIAS LAS ACCIONES CIVILES. Sin embargo, como lo acotamos en este apartado, la liberación del pago de costas, es por razones que el tribunal no fundamenta adecuadamente dejando la sentencia ayuna de motivación y provocando que el fallo en este apartado, tenga un vicio insoslayable, que debe ser así declarado y ordenarse el juicio de reenvio parcial" (Sic. Cfr. folio 171415). Segundo motivo.- Estima se da una errónea aplicación de los artículos 267 y 270 CPP y falta de aplicación de los artículos 221 CPC en relación con el numeral 266 CPP. Explica que del informe Nº 202 de la Sección de Económicos del Organismo de Investigación Judicial se establece que los demandados civiles Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., La Selva de la Marina S.A., recibieron dineros de Servicios Notariales QC S.A., provenientes de Alcatel, es decir, el tribunal tuvo por acreditado que se trata de dinero privados, no de la hacienda pública.

Y agrega: "E1 Tribunal desestima las acciones contra todos los civiles, pero OMITE TODA ARGUMENTACION SOBRE EL represento como terceras ello, Y LOS RESTANTES DE ALCATEL, que no fueron BUFETE VALERIO CASAFONT Y ASOCIADOS, y dos empresas QUE SE BENEFICIARON CON MAS DE UN Tribunal tampoco se refiere a es que LAS DEMANDADAS CIVILES POR intermedio de SERVICIOS a la formulación LA PROCURADURIA INCUMPLIO CON SU DEBER LEGAL al irrespetar los articulos 20 y 21 de Su Ley Orgánica. Que debió demandar al Estado y al ICE, porque funcionarios estatales, el Presidente de la República y un Diputado así como Funcionarios del ICE de diversa índole cometieron hechos delictivos. Que no todos los demandados civiles participaron en todos los hechos. Y resulta evidente que LOS DEMANDADOS CIVILES que represento PUNTO DE NEGOCIOS, QUANTICA, FINCA SALITRAL Y LA SELVA DE LA MARINA todas sociedades anónimas no tienen nada que ver con la ACTUACION DE [Nombre009], [Nombre024], [Nombre026], [Nombre001], [Nombre004], [Nombre018], [Nombre012], [Nombre021]" (Copia literal del original.

Cfr. folio 171416). Hace ver que por siete años sus representadas soportaron el proceso en su contra y por tanto, las acciones formuladas y declaradas sin lugar deben tener consecuencias. Señala: "La causa para obviar esas consecuencias seria la razón plausible para litigar y nos preguntamos la representación de Punto de Negocios, La Selva de la Marina, Quántica, y Gambusinos: Dónde radica la razón plausible para litigar sino se determina un NEXO CAUSAL ENTRE ESAS DEMANDADAS Y LOS ACTOS DE LOS ACUSADOS QUE FUERON SENTENCIADOS.? Que dinero PERTENECIENTE AL ICE, O AL ESTADO llegó a manos de las demandadas civiles? Y valga acá el mismo cuestionamiento en torno a los dineros recibidos por Servicios Notariales QC S.A. y [Nombre009] a título personal. Que las pretensiones se confundieron, y que la solidaridad no se determinó de forma adecuada. Las demandas se desecharon, y como tales deben tener consecuencias sus gestores" (Cfr. folio 171417).

En suma, solicita se condene a los actores civiles (Instituto Costarricense de Electricidad y el Estado) al pago de las costas del proceso, incluyendo el recurso de casación. Tercer motivo.- Protesta por errónea interpretación del artículo 277 CPC, respecto de la indemnización de daños y perjuicios. Señala que al omitirse un pronunciamiento de fondo en la sentencia, se ordena el levantamiento de los embargos decretados, así como el rechazo de la condena por daños y perjuicios. Luego, sobre la posibilidad mencionada en el fallo de acudir a la vía civil, refiere: "En primer termino, resulta desafortunada la decisión del Tribunal al brindarle a los actores la probabilidad de acudir a la via ordinaria, suponemos, en procura de sus intereses. Esa decisión es admisible en tanto la parte actora no haya soportado todo lo que conllevo el proceso civil dentro del proceso penal. E1 principio procesal de "elección de vial' lo desconoce el Tribunal de sentencia.

Los actores decidieron elegir la via de la acción civil dentro del proceso penal en procura de sus intereses. Tanto es as¡, que incluso hay recursos de casación pendientes de los actores civiles. Que el Tribunal desechara sus demandas por defectos en las PRETENSIONES, no pueden ser el sustento para remitir a las partes a un reclamo civil posterior. Los actores agotaron la via del proceso penal para la probable indemnización, que no lo supieran hacer, nos les da derecho a mantenerse legitimados para hacerlo en la via de ordinaria civil. Esa interpretación que realiza el Tribunal, verdaderamente si lesiona el numeral 2 del Codigo Procesal Penal. El Juez conoce el derecho, y bajo esa tesitura, es evidente que el Tribunal esta beneficiando a una de las partes del proceso, de forma errónea, por una mala actuación de ellos. La demanda fue DESECHADA DEFINITIVAMENTE EN SENTENCIA del Tribunal Penal, se ordeno como consecuencia de ello el levantamiento de los embargos y en ese caso debe consignarse el dinero en efectivo a favor de los demandados a titulo de daños y perjuicios, como indemnización fija: ese es el contenido de la norma en cuestión y el espíritu de la misma.

(...) Siete años debieron soportar los demandados civiles, a quienes represento, por un proceso civil interpuesto dentro de un proceso penal, con embargo incluido; a la espera de que se rechazaran las pretensiones por razones de forma y fondo. El Tribunal en sentencia, luego de esos siete tortuosos años, decidió rechazar las pretensiones por defectuosas. Hubo que esperar conclusiones de las partes para saber cuales eran esas pretensiones, los demandados hicieron lo suyo rechazando lo pretendido por los actores. Y, volvemos al tema señalado en motivos precedentes: Que tienen que ver las demandadas civiles, sociedades que yo represento, y [Nombre009] a titulo personal, con dineros o fondos públicos. Nada, nada y nada. Que tienen que ver las sociedades que yo represento con la actuación de los sentenciados. Donde radica el nexo causal entre hecho penal y demanda civil? No hay respuesta a esta interrogante, porque el Tribunal desecho las demandas civiles por DEFECTO EN LAS PRETENSIONES, SOBRE TODO EN EL TEMA DE LA SOLIDARIDAD" (Cfr. folios 171418 y 171419).

Cita el voto Nº 115-1995, del 18 de octubre y solicitan se acoja el recurso, se revoque el fallo en cuanto rechaza la indemnización por daños y perjuicios, se ordene la devolución al Tribunal de juicio para que efectúe los "embolsos" a los demandados civiles en la proporción que corresponda conforme a las demandas formuladas.

XVIII.SE RESUELVE EL RECURSO FORMULADO POR EL LICENCIADO MARIO NAVARRO ARIAS.- Sobre los extremos civiles formulados por el licenciado Mario Navarro Arias, apoderado especial judicial de los demandados civiles, Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A.; La Selva de la Marina S.A; Servicios Notariales QC S.A., y [Nombre009] en su condición personal, ya esta Cámara acogió los reproches presentados por el licenciado Cristian Arguedas Arguedas, quien cuestionó la decisión del Tribunal de instancia de omitir pronunciamiento sobre las acciones civiles presentadas por la Procuraduría General de la República y el Instituto Costarricense de Electricidad; aplicándose el efecto extensivo y ordenando el reenvío para una nueva sustanciación conforme a Derecho sobre dichos extremos (incluyendo costas). Por economía procesal, se omite resolución expresa sobre las objeciones formuladas, pues versan sobre aspectos de fondo que deberán ser examinados justamente en el reenvío ya ordenado en cuanto a los extremos de la acción civil resarcitoria de interés.

XIX.RECURSO FORMULADO POR EL LICENCIADO MARIO GONZALO SOTO BALTODANO.- El licenciado Mario Gonzalo Soto Baltodano, presidente con facultades de apoderado generalísimo sin límite de suma de JURISO, S.A., formula contra la a sentencia Nº 167-2011, de las 15:00 horas del 27 de abril de 2011, dictada por el Tribunal Penal de Hacienda del Segundo Circuito Judicial de San José; recurso de apelación de sentencia (cfr. 172884 a 172915, tomo XXXIX); así como recurso de casación (cfr. folios 17062 a 17082, tomo XXXVI). Dada la coincidencia de reclamos en ambas impugnaciones, se expone los reclamos, con algunas citas textuales del segundo de ellos, correspondiente al recurso de apelación de sentencia. Primer motivo.- Explica que la sociedad referida es propietaria del vehículo marca Suzuki, placas [Valor033], cuyo comiso se ordenó en la sentencia impugnada, siendo su representada tercera interesada y que nunca fue notificada del proceso, aún cuando es dueña de buena fe.

Señala: "Dicho bien se adquirió al amparo del Registro Público libre de gravámenes y anotaciones, por una causa justa y por su valor fiscal. Se canceló el precio de la venta mediante el pago de mis honorarios por el valor fiscal del vehículo, así quedó cancelada la Defensa de [Nombre001], la cual ejercí hasta que el propio [Nombre001] me sustituyó, el 30 de agosto de 2006 (prueba 1 certificación de traspaso y sustitución [Nombre001]). Es decir que con el traspaso del carro se daban por satisfechos los honorarios. El traspaso lo realiza una tercera persona que en ese momento es la apoderada generalísima de la empresa propietaria del vehículo y que siempre había conocido como la que representaba los intereses venezolanos en los negocios de mi defendido. Esa escritura se produce cuando el Estado lo que tiene es una mera expetativa de derecho en este juicio, no existe una sentencia, sino por el contrario existen resoluciones del propio Tribunal de Juicio del II Circuito Judicial de San José, Goicoechea, que van en contra de dicha expectativa de derecho, es así como el Tribunal Penal del Segundo Circuito Judicial de San José dicta el voto 246-05, de 16:15 horas del 12 de mayo del 2005, tomando en cuenta que 'el Ministerio Público solicitó ampliación de las medidas cuatelares por lo que pide se mantenga la resolución impugnada.

Analizados los autos se desprende que el Ministerio Público Público fundamentó su solicitud inicial aduciendo que el imputado ha ocultado hechos y realizado actos para obstaculizar la investigación, posteriores a su indagatoria. En su solicitud el Ministerio Público señala como ejemplo de estas actuaciones el traspaso de unos vehículos, según consta a folios 188 y siguientes. Sin embargo la escritura de traspaso tiene fecha setiembre de dos mil cuatro y [Nombre069] indica que en efecto fue en esas fechas que la imputada [Nombre029], hermana del imputado le solicitó comprar varias sociedades a las que luego traspasaron los vehículos. El imputado fue indagado el 8 de octubre de dos mil cuatro y dijo que aceptaba los hechos. Si el Ministerio Público para esa fecha no tenía conocimiento de esas actuaciones de traspaso, nada obligaba al imputado a auto incriminarse en hechos que no le estaban siendo atribuidos.

Lo cierto es que esas circunstancias se dieron con antelación a la indagatoria y no podemos decir entonces que la situación del imputado ha variado y que haya ejecutado actos posteriores para obstaculizar la investigación... Como consecuencia necesaria se revoca la resolución' " (Cfr. folios 172886 y 172887). Refiere el impugnante, que se trataba de una deuda líquida y exigible, pues los honorarios son de cobro privilegiado , siendo voluntad de la apoderada de la empresa, el venderle el vehículo para cancelar su labor profesional, estando el automotor libre de embargos, anotaciones y gravámenes. Explica que adquirió el vehículo a nombre de la sociedad JURISO S.a., donde coloca sus bienes. Considera que su representada es un tercero con mejor derecho, siendo primera en tiempo respecto de la sentencia recurrida. Agrega: "Cuando las resoluciones de medidas cautelares de las que yo tenía conocimiento es decir hasta agosto del 2006, tanto contra el imputado, como contra el vehículo, habían sido rechazadas.

Eso comprueba porque el vehículo está absolutamente limpio en Registro, no se había declarado, anotación, embargo o comiso. Más bien habían rechazado la anotación" (Cfr. folio 172888) Menciona la resolución de las 15 horas del 23 de noviembre de 2006, del Juzgado Penal del Segundo Circuito Judicial de San José, rechazando las medidas cautelares contra [Nombre001] y donde en el hecho 85 se alude en específico al Suzuki, placas [Valor033]. En suma, al separarse de la defensa, todas las resoluciones dictadas descartaban una pretensión sobre ese bien, eran meras expectativas, [Nombre001] no había sido condenado de fraude, ni había medida cautelares, mientras, su derecho a honorarios era una deuda previa, exigible, vencida y vigente. Es decir, el traspado a favor de JURISO S.A., fue un acto legítimo por pago de una deuda previa, probada en el mismo expediente por la labor profesional desplegada en autos: medidas cautelares, testimonios, negociaciones de medidas alternas, procesos abreviados y muchas horas de estudio y consulta.

Solicita se case la sentencia y se ordene el reenvío para resolver conforme a Derecho; o bien, se revoque el comiso, pues su "interesada" es la legítima propietaria. Segundo motivo.- Reprocha como quebranto del debido proceso, la infracción de los artículos 39 y 41 de la Constitución Política, menciona los artículos 45 constitucional, así como de los numerales 110 del Código Penal, reproduce el contenido del artículo 2 de la Ley de Notificaciones Judiciales y del 449 del Código Civil; luego acusa la falta de notificación a su representada JURISO S.A. (propietaria registral del vehículo [Valor033]) tampoco a Dominical Antigua S.A. (antigua propietaria), al menos de: las acciones civiles, el señalamiento para debate y la sentencia, generándose un gravamen al ordenarse el comiso de ese bien y al anularse en la sentencia impugnada, la escritura que puso ese bien a nombre de Dominical Antigua S.A. (aún cuando consta en el Registro Público que ese vehículo pertenecía a JURISO S.A.).

En consecuencia, protesta porque se aplicó el comiso de un bien a un tercero ajeno al proceso. Cita el voto Nº 482-G del Tribunal Primero Civil, Sección Segunda de San José, de las 8:35 horas del 11 de marzo de 2004: "III.- Refiere además el apelante que el deudor [Nombre090] no tiene posibilidad de alegar el buen pago pues la propiedad de un crédito pasa al cesionario por el sólo efecto de la cesión, que en este caso el deudor renunció expresamente a la notificación de la cesión, de manera que como en materia prendaria existe la publicidad registral, el deudor estaba obligado a consultar el Registro Público y corroborar la identidad de su acreedor, antes de realizar el pago". Considera que una autoridad pública que va a comisar un bien, tiene el mismo deber de un notario: consultar el registro, pues va a constituir, modificar o extinguir derechos de personas. Señala que en este caso, aún cuando solo se anuló el traspaso de Dominical Antigua S.A. y, no el de su representada (por lo que está plenamente válido) se dicta el comiso, afectando a JURISO S.A. como tercero ajeno al proceso.

Solicita anular la sentencia, total o parcialmente, revocando el comiso en contra de su representada; subsidiariamente, solicita se revoque la orden de comiso, porque no se tiene que afectar a la propietaria. Tercer motivo.- Con fundamento en los artículos 142, 369 inciso d) del Código Procesal Penal y 110 del Código Penal, se acusa fundamentación contradictoria e inobservancia de las reglas de la sana crítica racional, al examinarse elementos probatorios de valor decisivo. Considera se dio un quebranto a las reglas del correcto entendimiento humano al establecerse la autoría de [Nombre001] como autor del delito de corrupción agravada en la modalidad de cohecho impropio, pues falta de correlación entre los hechos probados y la prueba admitida, pese a la ausencia de elementos probatorios, tanto que es imposible precisar los hechos de la acusación y la sentencia. Reproduce lo tenido por demostrado en sentencia sobre la participación de [Nombre001] (hechos 44, 45, 130 y 131), luego la prueba documental de interés (correspondiente a las actas de secuestro 383988 y 383889 del 21 de julio de 2005; actas de secuestro 386753 y 386754, visibles a tomo IX, folios 3600 a 3601, del Banco Cuscatlán) y agrega: "Es decir, que el Tribunal a pesar de afirmar en los hechos probados de valor decisivo como son el hecho 130 y 131, que: 'Se acordó que la entrega estaría condicionada a la efectiva adjudicación de la oferta que presentaría Alcatel al ICE'.

Omite analizar los certificados de inversión de los cuales se desprende directamente lo contrario, pues si la adjudicación fue el 18 de enero de 2002 y el referendo de la Contraloría fue el 7 de marzo de 2002, no puede afirmarse que la entrega estaría condicionada a la efectiva adjudicación de la oferta, como lo hace el Tribunal sentenciador, porque [Nombre001] tenía en su poder $20.000.00 para el 10 de diciembre de 2001. Es decir se le giraron sumas antes de las condiciones que dice la sentencia. Esta contradicción se nota también en el cuadro de ENTREGA DE DINEROS A FUNCIONARIOS PÚBLICOS, de la página 1712 de la Sentencia, donde se establece: 'Servicios Notariales QC, 13 de febrero de 2002, [Nombre001]'. Es decir que también antes de la fecha del referendo de la Contraloría, se habían girado otros dineros a [Nombre001], además había viajado al extranjero con frecuencia, es así como según el cuadro de Entrega de Dineros a Funcionarios Públicos, de la página 1712 y el análisis del voto salvado del juez Camacho..." (cfr. folio 172900 y 172901).

Considera el impugnante, nunca se estableció una relación clara, precisa y circunstanciada de los hechos que constituían esas gestiones necesarias, o de lo acordado, como se afirma en la acusación. Asegura que el hecho 130 contiene una "falacia de causa falsa" en infracción del artículo142 del Código Procesal Penal, al indicarse que las "gestiones necesarias" suceden dentro del ámbito de sus funciones como asesor de la Presidencia Ejecutiva del ICE y como encargado de la ejecución del proyecto de 400.000 líneas, para hacer efectiva la contratación a favor de Alcatel. Lo anterior, estima el gestionante, implica que [Nombre001] podía pasar por encima de la Junta Directiva, [Nombre061] (subgerente para Telecomunicaciones del ICE y firmante del contrato), [Nombre052] (presidente ejecutivo) y todos los miembros de la comisión nombrada para ese proyecto y la Contraloría General de la República; lo cual, es legal y funcionalmente falso.

Señala que aún cuando por petición expresa del Ministerio Público consta de folio 1569 y siguientes (tomo V) el detalle de las funciones de [Nombre001], ni en la acusación, ni en sentencia, se precisa cuál de ellas fue la realizada a favor de la oferta de Alcatel, "... mucho menos cuando apenas el 21 de diciembre de 2010 y 15 de enero de 2001, [Nombre052] le pedía a la Contraloría, autorización para la compra directa (no existía el refrendo del proceso abreviado 01-2001 de licitación) y ya [Nombre001] había recibido los certificados de dinero en diciembre de 2001. Con todo respeto es absurdo condenar a [Nombre001], cuando en el momento histórico en que él recibió el dinero, ni siquiera existía la licitación, ni estaban pensando en ella. La licitación se refrenda hasta en marzo del año siguiente, 7 de marzo de 2002" (Cfr. folio 172904). Refiere que también consta a folio 1795 (tomo V) que el director de Recursos Humanos, [Nombre087], certifica que [Nombre001] laboró en la institución solamente en la presidencia ejecutiva, preguntándose entonces, cuál fue la acción típica, antijurídica y culpable realizada por [Nombre001], para favorecer a Alcatel en la licitación adjudicada.

Reprocha que las juzgadoras no ponderaran (conforme prueba de folios 1569 y 1795) que el encartado [Nombre001] no tenía dedicación exclusiva, ni prohibición, en consecuencia, no se demuestra que los dineros recibidos antes del proceso abreviado 01-2001, fueran ilícitos o tuvieran relación con el proceso. Aseguran se omitió por las juzgadoras analizar que según lo contenido en el documento de folio 1569, las funciones de [Nombre001] estaba supeditadas y subordinadas a la Presidencia Ejecutiva, en consecuencia, las "acciones necesarias" no podrían ser propias del imputado al carecer de autoridad para decidir y ejecutar (citando el artículo 11 de la Ley General de la Administración Pública). Solicita se case la sentencia y se ordene el reenvío para su tramite conforme a Derecho, o bien, se resuelva conforme lo establece el artículo 9 del Código Procesal Penal, dictando sentencia absolutoria a favor del acusado [Nombre001] y en consecuencia, revocando el comiso ordena sobre el vehículo de su representada.

Cuarto motivo. Acusa la errónea aplicación del artículo 340 del Código Penal (cohecho impropio), pues no obstante conocerse las funciones desempeñadas por el justiciable [Nombre001], no se identifica cuál es el acto propio de sus funciones realizado, limitándose el pronunciamiento a aludir a "acciones necesarias". Después de cuestionar lo que podría significar esa expresión, cuestiona sobre cómo se iban a realizar "acciones necesarias" el 10 de diciembre de 2001, sobre una licitación cuyo contrato se suscribe hasta el 18 de enero de 2002 y se refrenda en marzo de 2002. Agrega: "En cambio si realizó viajes al extranjero en el mes de diciembre del 2001, como ya se dijo. Pero vale la pena citar que sus salidas del país son en fines de semana o vacaciones, es decir no tienen relación con sus funciones. Tampoco se demuestra que el dinero que recibe [Nombre001] proviene de sus funciones, no se sabe por qué coinciden dinero y viajes en días de vacaciones o fines de semana, pero eso excluye, en principio que sea un hecho en Costa Rica, pero sobre todo excluye que sea un asunto que tenga que ver con el proceso abreviado 01-2001.

Es decir, que se incumple con un elemento del tipo penal y existe falta de tipicidad en transgresión del Código Penal" (Cfr. folio 172908 y 172909). Cita los artículos 1 y 4 del Código Penal, luego solicita se anula la sentencia condenatoria del encartado [Nombre001] y se dicte absolutoria, liberándose de toda pena y responsabilidad. Quinto motivo.- Acusa la falta de tipicidad del hecho 187 de la sentencia, porque considera no se demostró el dolo para configurar el fraude de simulación. Refiere: "1. Nunca se probó que el imputado conociera de las publicaciones en los medios contra Servicios Notariales QC, para demostrar que sabía el origen del dinero, tal y como se ha probado en los agravios anteriores las causas por las que recibió esas sumas, no son las que indica la sentencia. 2. Tampoco se demostró el paradero de los vehículos para demostrar que el acto fue simulado y que no fue cierto, es decir, no puede afirmarse que el imputado quedara en posesión de los automotores beneficiándose con ello. 3.

Tampoco se realizaron estudios registrales de la sociedad que adquirió los vehículos del hecho 187, para comprobar si esa sociedad siempre fue controlada por el imputado o si fue a dar a manos de terceros. 4. Tampoco se demostró que el imputado quedara siempre en poder del paquete accionario. 5. La prueba recabada del CUSCATLÁN INTERNACIONAL fue traída al proceso ilegalmente y así pedimos que se declare, pues como aparece en los mismos documentos bancarios, esta institución tiene su asiento en Bahamas y no en Costa Rica. 6. Los traspasos de los vehículos se dieron con antelación a la indagatoria sobre el fraude de simulación, por lo tanto el imputado no tenía la obligación de auto incriminarse por hechos que no le estaban siendo atribuidos" (Cfr. folio 172910). A criterio del recurrente, no se demostró el beneficio indebido y entre otros aspectos supra indicados, en definitiva tampoco fue acreditado un acto, contrato, gestión o escrito judicial simulado, con el propósito de obtener un beneficio indebido, causando perjuicio a otra persona. Solicita se anule la sentencia condenatoria y se dicte absolutoria en favor del acusado [Nombre001], anulándose la condena y la declaratoria de falsedad.

XX.SE RESUELVE EL RECURSO FORMULADO POR EL LICENCIADO MARIO GONZALO SOTO BALTODANO.- Consta en la sentencia que el Tribunal de Juicio, a pedido del Ministerio Público y de la Procuraduría General de la República, ordenó el comiso del vehículo placas Nº [Valor033], inscrito a nombre de Dominical Antigua S.A., previa declaratoria de falsedad instrumental de escritura pública Nº [Valor060] del Notario [Nombre028], ordenándose las rectificaciones registrales correspondientes. Al margen de los alegatos formulados por el impugnante, cuestionando el reproche penal del acusado [Nombre001] por el delito de fraude de simulación, respecto del automotor mencionado y traspasado por escritura Nº [Valor060] (situación ya abordada por esta Cámara confirmando la condena); lo cierto es que sí se verifica en cuanto al licenciado Mario Gonzalo Soto Baltodano y como presidente con facultades de apoderado generalísimo sin límite de suma de JURISO, S.A., una violación al debido proceso, pues podría ser un tercero de buena fe afectado por el comiso ordenado en sentencia.

Examinados los autos resultan de relevancia los siguientes datos: Existe una fotocopia de certificación del vehículo placas Nº [Valor033], donde aparece como propietaria registral la representada del impugnante, JURISO, S.A. y al describirse las calidades del propietario, puede leerse que el documento fue presentado en fecha tres de julio de dos mil nueve; sin que conste en autos que, para el momento de tener lugar el debate oral y público (a partir del catorce de abril de dos mil diez, cfr. folio 14082, Tomo XXIX) el representante de JURISO, S.A. tuviese participación en el proceso penal que nos ocupa, por lo que ordenar el comiso, en tales circunstancias provoca una violación al debido proceso que amerita ordenar su anulación y ordenar el reenvío para una nueva sustanciación conforme a derecho. En consecuencia, se declara con lugar el recurso formulado por el licenciado Mario Gonzalo Soto Baltodano, presidente con facultades de apoderado generalísimo sin límite de suma de JURISO, S.A..

Se anula el comiso del vehículo marca Suzuki Jimmy, placa [Valor033] y se ordena el reenvío sobre ese extremo para una sustanciación conforme a derecho, debiendo convocarse al aquí impugnante, a fin de que tenga oportunidad de ejercer los derechos, que por ley le corresponden. En virtud de lo resuelto se omite pronunciamiento sobre las otras propuestas formuladas por el recurrente, pues la mayoría de ellas aluden a aspectos de fondo que deberán dilucidarse en el reenvío aquí ordenado.

XXI.RECURSO FORMULADO POR EL LICENCIADO JUAN LUIS VARGAS VARGAS.- El licenciado Juan Luis Vargas Vargas, apoderado especial judicial de [Nombre002], presidente, con facultades generalísimas sin límite de suma de la sociedad Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, formuló contra la sentencia Nº 167-2011, de las 15:00 horas del 27 de abril de 2011, dictada por el Tribunal Penal de Hacienda del Segundo Circuito Judicial de San José; recurso de apelación de sentencia (cfr. 172273 a 172291); así como recurso de casación (cfr. folios 17649 a 17674). Al referirse a su legitimación para recurrir, explica que tanto la doctrina como la jurisprudencia (votos Nº 138-91, Nº 1080-98-98, Nº 583-2003, 712-2006 y 125-2010 Sala Tercera, Nº 5447-95, Nº 4121-96 y Mº 5464-96 de la Sala Constitucional) reconocen ese derecho en quienes aún cuando no han sido parte del proceso penal, son “terceros afectados interesados”, cuando se ha dispuesto en sentencia el comiso de un bien de su propiedad, como es su caso.

Dada la coincidencia de reclamos en ambas impugnaciones, se expone los reclamos, con algunas citas textuales del segundo de ellos, correspondiente al recurso de apelación de sentencia. Único motivo.- “Violación al debido proceso por infracción al derecho de defensa por haberse ordenado el comiso de un bien inmueble perteneciente a una sociedad anónima” (Cfr. folio 172279). En quebranto de los artículos 39 y 41 de la Constitución Política, 8 inciso 1) de la Convención Americana sobre Derechos Humanos y 369 inciso j) del Código Procesal Penal, así como de los numerales 103 y 110 del Código Penal, se vulneró el derecho al debido proceso, de defensa, así como el de audiencia, de la sociedad propietaria de un bien inmueble sobre el cual en sentencia se ordenó el comiso. Con cita de doctrina y de pronunciamientos de la Corte Interamericana de Derechos Humanos, de la Sala Tercera y la Constitucional costarricense sobre el debido proceso, explica que el tribunal de juicio en la sentencia impugnada, ordenó el comiso del inmueble [Valor061] (como consta a folio 1543 del fallo), perteneciente a la sociedad Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, cédula jurídica 3-101-272513, sin garantizar en el proceso su participación.

Asevera que el fundamento expresado por el tribunal para ordenar el comiso no es válido, pues en su criterio constituyen “meras afirmaciones generales sin una referencia específica al caso y sobre todo a la intervención de la sociedad a la que se comisa el inmueble de repetida cita, el defecto denunciado en este motivo impedía al sentenciador emitir pronunciamiento alguno sobre el comiso, pues no se habían establecido en el proceso las premisas mínimas de contradictorio que garantizaran haber escuchado la defensa de la empresa perjudicada. En este sentido, la decisión tomada sobre el comiso no se asienta en una previa discusión entre las partes como es lo que corresponde en un sistema acusatorio, y más aún sobre un tema en que involucra la pérdida de la propiedad de un bien. En razón de ello, la decisión de ordenar el comiso en sentencia resulta sorpresiva porque durante la tramitación de la presente causa no se le corrió traslado alguno a la referida sociedad, con lo cual no se le propició oportunidad alguna para exponer sus razones oponiéndose a tal posibilidad de perder la propiedad mencionada a favor del Estado” (Cfr. folio 172286).

Es decir, los juzgadores ordenaron el comiso de un bien inmueble sin dar oportunidad de defensa a la sociedad propietaria, ocasionándole un gravamen irreparable. Critica que en fallos anteriores, ante vicios como el denunciado, se anule parcialmente lo resuelto y se ordene el reenvió para una nueva sustanciación (por ejemplo, voto Nº 96-2009 Sala Tercera), porque: (i) Se daría una ventaja indebida a las partes actoras civiles, quienes no accionaron en tiempo y forma debida. Refieren: “Esto implica un quebranto a la regla de la actividad procesal defectuosa que establece que bajo pretexto de reponer un acto no puede retrotraerse el proceso penal a etapas precluídas” (Cfr. folio 172289). (ii) “Por las grandes dimensiones del defecto procesal denunciado, que han implicado una exclusión absoluta de la empresa afectada a la que nunca se le oyó, la reposición parcial del juicio y la sentencia no es el mecanismo adecuado para restablecer el goce de los derechos de intervención de la empresa.

Y esto es así porque en caso de ordenarse la nulidad parcial implicaría cercenar la oportunidad de ofrecer prueba y rebatir la prueba y los argumentos de los actores en una fase intermedia ya precluida” (Cfr. folios 172289 y 172290). Solicita declarar con lugar el recurso, anular parcialmente la sentencia, solo en cuanto ordenó el comiso de la finca registrada bajo la secuencia número [Valor061], del Partido de Guanacaste que pertenece a la sociedad Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima.

XXII.SE RESUELVE EL RECURSO FORMULADO POR EL LICENCIADO JUAN LUIS VARGAS VARGAS.- Consta en la sentencia que el Tribunal de Juicio (en voto de mayoría), a pedido del Ministerio Público y de la Procuraduría General de la República, ordenó el comiso de la finca registrada bajo la secuencia número [Valor061], del Partido de Guanacaste que pertenece a la sociedad Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima. El Tribunal de mérito en su voto de mayoría y utilizando como fundamento el artículo 110 del Código Penal que establece: "El delito produce la pérdida en favor del Estado de los instrumentos con que se cometió y de las cosas o valores provenientes de su realización, o que constituyan para el agente un provecho derivado del mismo delito salvo el derecho que sobre ellos tengan el ofendido o terceros"; ordenó el comiso del mencionado inmueble. A folio 1897 de la sentencia se ordena el comiso de la finca del Partido de [...], Nº [Valor061] "... a nombre de Multiservicios Públicos Privados y Afines de Guanacaste MUPAGUA S.A. sociedad adquirida por las sociedades MCS Moriah Consultores S.A representada por [Nombre029] y que fuera adquirida con dineros provenientes del delito.

Conforme se analizó en el Considerando IX, dichas sociedades eran controladas por el imputado [Nombre001] y fueron utilizadas por él para ocultar la naturaleza de los dineros ilícitos que estaba recibiendo". Y en efecto, en el considerando de fondo las juezas después de establecer el reproche penal en contra de [Nombre001] como autor responsable del delito de corrupción agravada en la modalidad de cohecho impropio en perjuicio de los deberes de la función pública, señalan: "Se ordena el comiso del vehículo marca Suzuki Jimmy placa Nº [Valor033], mismo que fue adquirido con parte de los dineros ilícitos recibidos por el imputado [Nombre001]. Por las mismas circunstancias se ordena el comiso de las fincas inscritas en el Registro Público de la Propiedad Partido Guanacaste bajo el sistema de Folio Real Matrículo Nº [Valor021], Submatrículo [Valor018]; Partido de Guanacaste, sistema de Folio Real Matrículo [Valor022], Submatrículo [Valor018]" (folio 1543 de la sentencia).

Sin embargo, en este caso específico, siendo el comiso una consecuencia civil del hecho punible y en vista de que esta Cámara (como se detalló supra) ha sobreseído por extinción de la acción penal (prescripción) al imputado [Nombre001] del delito del delito de corrupción agravada en la modalidad de cohecho impropio en perjuicio de los Deberes de la Función Pública, lo procedente es acoger el recurso formulado por el gestionante y revocar la decisión de la mayoría del Tribunal de mérito sobre el comiso ordenado sobre la finca inscrita en el Registro Público de la Propiedad Partido Guanacaste, sistema de Folio Real Matrícula [Valor022], Submatrícula [Valor018]; pues como se desprende de las transcripciones efectuadas, la escasa fundamentación intelectiva del pronunciamiento vincula la decisión de comisar ese bien inmueble a la comisión del delito de corrupción agravada en la modalidad de cohecho impropio en perjuicio de los Deberes de la Función Pública; no al de fraude de simulación que persiste y que involucró de forma directa otro de los bienes comisados (el vehículo marca Suzuki Jimmy placa Nº [Valor033], tema sobre el cual se ordenó el reenvío). En consecuencia, se revoca el comiso ordenado sobre la finca inscrita en el Registro Público de la Propiedad Partido Guanacaste, sistema de Folio Real Matrícula [Valor022], Submatrícula [Valor018].

XXIII.SE CORRIGE ERROR MATERIAL.- De conformidad con el artículo 146 del Código Procesal Penal, se procede a corregir un error material de la parte dispositiva comunicada a las partes el pasado veintiuno de diciembre de dos mil doce, en concreto, en el acápite C, para que donde dice "[Nombre001]" se lea "[Nombre004]"; de manera que dicho apartado diría así: "C) Se declara con lugar el recurso de apelación planteado por la licenciada Yamura Valenciano a favor del acusado [Nombre004]. Se declara prescrita la causa por el delito de cohecho impropio en su modalidad de corrupción agravada que se le venía achacando al justiciable [Nombre004], y se le absuelve de toda pena y responsabilidad por este delito".

POR TANTO:

De conformidad con los artículos 7, 24, 33, 34, 39 y 41 de la Constitución Política; 1, 2, 11, 30 y 45 del Código Penal de 1973; Reglas vigentes sobre responsabilidad civil del Código penal de 1941; 1, 2, 9, 30 inciso e), 142, 175, 178, 180 a 184, 458, 459 y 465 del Código Procesal Penal:

• A)Se declara con lugar el recurso de apelación que interpuso el acusado [Nombre012]; se declara extinguida la acción penal por haber operado la prescripción; se declara la nulidad de la prueba documental N° 588 y todos los elementos probatorios que de esta dependen directamente; se declara la nulidad de la sentencia condenatoria penal dictada en contra de [Nombre012] y en su lugar se le absuelve directamente de toda pena y responsabilidad. La sentencia impugnada se mantiene incólume en cuanto lo absolvió por cuatro delitos de Enriquecimiento ilícito. Por la forma en que se ha resuelto, resulta innecesario hacer pronunciamiento sobre los demás reclamos que plantean los apelantes [Nombre012] y [Nombre088] respecto a la acción penal en sus recursos de apelación, ya que sus correspondientes pretensiones han sido atendidas. Se declara con lugar el recurso de apelación del licenciado Cristian Arguedas y por aplicación del efecto extensivo, su recurso favorece a todos los codemandados civiles, se anula la sentencia en su aspecto civil, en cuanto dispuso omitir pronunciamiento en cuanto al derecho de fondo discutido en relación a las acciones civiles interpuestas por el Instituto Costarricense de Electricidad y la Procuraduría General de la República contra los demandados civiles, así como lo resuelto respecto de las costas y se ordena el reenvío del proceso al competente para la nueva sustanciación de esos extremos, sobre la base de que no se demostró en juicio el hecho atribuido por los actores civiles y penal a los imputados y codemandados civiles.
• B)Se declara con lugar el recurso de apelación planteado por la licenciada Yamura Valenciano a favor del acusado [Nombre001].

B-1) Se declara prescrita la causa por el delito de cohecho impropio en su modalidad de corrupción agravada que se le venía achacando al justiciable [Nombre001], y se le absuelve de toda pena y responsabilidad por este delito.

B-2) Se anula parcialmente la sentencia únicamente en cuanto se le condena a [Nombre001] a diez años de prisión por el delito de Fraude de Simulación y en la determinación de la cuantía de lo defraudado conforme a la relación entre los artículos 218 y 216 del Código Penal, en orden a la fijación de los extremos sancionatorios dentro de los cuales se fijará el quantum de la pena. Se ordena el reenvío de la causa para que se discutan estos dos extremos: se fije la cuantía de lo defraudado conforme a las reglas procesales y según esta cuantía se establezca el extremo mínimo y máximo de la pena a imponer, y se proceda a hacer una fundamentación de la pena conforme a los requerimientos constitucionales y del artículo 71 del Código penal.

B-3) La sentencia sobre el Fraude de Simulación permanece incólume en todos los demás aspectos, en especial sobre la absolutoria dictada a favor de [Nombre001] por un delito de Fraude de Simulación en relación con el traspaso de la finca registrada con la Matrícula No. [Valor017], Submatrícula [Valor018], mediante escritura No. [Valor019] suscrita ante la Notaria Pública [Nombre025] en perjuicio del Instituto Costarricense de Electricidad y de los Intereses Colectivos y Difusos.

• C)Se declara con lugar el recurso de apelación planteado por la licenciada Yamura Valenciano a favor del acusado [Nombre004]. Se declara prescrita la causa por el delito de cohecho impropio en su modalidad de corrupción agravada que se le venía achacando al justiciable [Nombre004], y se le absuelve de toda pena y responsabilidad por este delito.
• D)Se declara con lugar los recursos de apelación planteados por los licenciados Nazira Merayo y Wilson Flores a favor del acusado [Nombre007].

D-1) Se declara extinguida la acción penal por haber operado la prescripción; en virtud de la nulidad de la prueba documental No. 588 se declara también la nulidad de la sentencia condenatoria penal dictada en contra de [Nombre007] y en su lugar se le absuelve directamente de toda pena y responsabilidad. La sentencia impugnada se mantiene incólume en cuanto lo absolvió por dos delitos de Enriquecimiento ilícito.

D-2) En cuanto al comiso vehículo marca Suzuki Grand Vitara XL, placa N° [Valor032] consecuencia del hecho punible, procede declarar con lugar el motivo de impugnación, ordenar la nulidad del comiso y la devolución del vehículo a quien se le ha decomisado.

D-3) En cuanto al tema de costas personales en la suma de 10 millones de colones a las que fue condenado el justiciable [Nombre007], para pagar la representación legal realizada por los defensores públicos, esta se declara nula y se ordena el reenvío para su correcta determinación a este respecto.

D-4) Por la forma en que se han resuelto los recursos planteados, resulta innecesario hacer pronunciamiento sobre los demás reclamos que plantean los apelantes Merayo y Flores respecto a la acción penal en sus recursos de apelación, ya que sus correspondientes pretensiones han sido atendidas.

• E)Se declara con lugar el recurso de apelación interpuesto por el licenciado Mario Navarro a favor del coencartado [Nombre009].

E-1) En virtud de la nulidad de la prueba documental No. 588 se declara también la nulidad de la sentencia condenatoria penal dictada en contra de [Nombre009] y en su lugar se le absuelve directamente de toda pena y responsabilidad.

E-2) En cuanto al comiso de las propiedades del Partido de Heredia inscrita bajo el sistema de Folio Real, Matrícula N° [Valor025], Submatrícula [Valor018] a nombre de la sociedad Punto de Negocios LQC Sociedad Anónima. Sociedad perteneciente al imputado [Nombre009]; así como de las acciones de [Nombre009] en la sociedad La Selva de La Marina S.A. propietaria, entre otros, de los inmuebles inscritos en el Registro Público bajo el sistema de Folio Real Matrícula N° [Valor030], Submatrícula [Valor018] y Matrícula N° [Valor031], Submatrícula [Valor018]. Corresponde al respecto ordenar al tribunal competente la devolución de las propiedades y acciones comisadas.

E-3) Por la forma en que se han resuelto los recursos planteados, resulta innecesario hacer pronunciamiento sobre los demás reclamos que plantean el licenciado Navarro respecto a la acción penal en sus recursos de apelación, ya que sus correspondientes pretensiones han sido atendidas.

E-4) Por el efecto extensivo de la declaratoria con lugar del recurso del licenciado Christian Arguedas, y porque sus impugnaciones no tienen un sentido personal, lo decidido favorece a todos los codemandados civiles, se anula la sentencia en su aspecto civil, en cuando dispuso omitir pronunciamiento en cuanto al derecho de fondo discutido en relación a las acciones civiles interpuestas por el Instituto Costarricense de Electricidad y la Procuraduría General de la República contra los demandados civiles, así como lo resuelto respecto de las costas y se ordena el reenvío del proceso al competente para la nueva substanciación de esos extremos.

• F)Se declara con lugar los recursos de apelación interpuestos por los licenciados Federico Morales y Erick Ramos a favor del acusado [Nombre015]; se declara extinguida la acción penal por haber operado la prescripción; en virtud de la nulidad de la prueba documental No. 588 se declara también la nulidad de la sentencia condenatoria penal dictada en contra de [Nombre015] y en su lugar se le absuelve directamente de toda pena y responsabilidad.

F-1) Por la forma en que se han resuelto los recursos planteados, resulta innecesario hacer pronunciamiento sobre los demás reclamos que plantean los apelantes Ramos y Morales respecto a la acción penal en su recursos de apelación, ya que sus correspondientes pretensiones han sido atendidas.

• G)Se declara con lugar el recurso de apelación interpuesto por [Nombre021] en su defensa material, se declara prescrita la causa en su contra, y en su lugar se le absuelve de toda pena y responsabilidad por el ilícito que se le endilga.

G-1) En virtud de la nulidad de la prueba documental No. 588 se declara también la nulidad de la sentencia condenatoria penal dictada en contra de [Nombre021] y en su lugar se le absuelve directamente de toda pena y responsabilidad.

G-3) En cuanto al comiso decretado del CERTIFICADO NÚMERO [Valor026] RENOVADO EN EL [Valor027]. Corresponde al respecto anular la sentencia y ordenar la inmediata devolución del documento a su legítimo propietario.

G-4) Por la forma en que se han resuelto los recursos planteados, resulta innecesario hacer pronunciamiento sobre los demás reclamos que plantea el encartado respecto a la acción penal en sus recursos de apelación, ya que sus correspondientes pretensiones han sido atendidas.

G-5) Por el efecto extensivo de la declaratoria con lugar del recurso del licenciado Christian Arguedas, y porque sus impugnaciones no tienen un sentido personal, lo decidido favorcee a todos los codemandados civiles, se anula la sentencia en su aspecto civil, en cuando dispuso omitir pronunciamiento en cuanto al derecho de fondo discutido en relación a las acciones civiles interpuestas por el Instituto Costarricense de Electricidad y la Procuraduría General de la República contra los demandados civiles, así como lo resuelto respecto de las costas y se ordena el reenvío del proceso al competente para la nueva substanciación de esos extremos.

• H)Por haberse extinguido la acción penal del imputado [Nombre018] (q.e.p.d.)., conforme a los artículos 30 inciso a) y 311 inciso d) y e) del Código Procesal Penal, se sobresee a [Nombre018] (q.e.p.d.) de un delito de PENALIDAD DEL CORRUPTOR por CORRUPCIÓN AGRAVADA en la modalidad de COHECHO IMPROPIO respecto de [Nombre027], así como de un delito de PENALIDAD DEL CORRUPTOR por COHECHO PROPIO en relación con [Nombre026], ambos en daño de la PROBIDAD EN LA FUNCIÓN PÚBLICA. En virtud de lo resuelto y por economía procesal, se omite pronunciamiento sobre los motivos de recurso de apelación formulado, respecto a la responsabilidad penal del encartado [Nombre018].

H-1) Por efecto extensivo, se anula lo resuelto sobre la acción civil resarcitoria y se ordena el reenvío para una nueva sustanciación conforme a derecho. Por economía procesal, se omite resolución expresa sobre las objeciones formuladas, pues versan sobre aspectos de fondo que deberán ser examinados justamente en el reenvío ya ordenado en cuanto a los extremos de la acción civil resarcitoria de interés.

H-2) Se ordena al Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José proceda a la cancelación de la hipoteca en primer grado sobre la finca inscrita Finca inscrita en Registro Público de la Propiedad, Provincia de San José, número [Valor052], a favor de la Corte Suprema de Justicia, otorgada como caución real a favor de [Nombre018] (q.e.p.d.), por la suma de doscientos mil dólares.

• I)Se declara sin lugar el recurso de apelación de sentencia presentado por el Ministerio Público.
• J)Se declara con lugar el recurso formulado por el licenciado Mario Gonzalo Soto Baltodano, presidente con facultades de apoderado generalísimo sin límite de suma de JURISO, S.A.. Se anula el comiso del vehículo marca Suzuki Jimmy, placa [Valor033] y se ordena el reenvío sobre ese extremo para una sustanciación conforme a derecho, debiendo convocarse al aquí impugnante, a fin de que tenga oportunidad de ejercer los derechos, que por ley le corresponden. En virtud de lo resuelto se omite pronunciamiento sobre las otras propuestas formuladas por el recurrente, pues la mayoría de ellas aluden a aspectos de fondo que deberán dilucidarse en el reenvío aquí ordenado.
• K)Por efecto extensivo, se declara con lugar el recurso presentado por los licenciados Gilberth Calderón Alvarado, Procurador de la Ética Pública y Miguel Horacio Cortés Chaves, Procurador Adjunto de la Ética Pública, en calidad de representantes del Estado; ordenando el reenvío para una nueva sustanciación conforme a derecho respecto de la acción civil resarcitoria formulada a nombre de la Procuraduría General de la República. Por economía procesal, se omite resolución expresa sobre las objeciones formuladas, pues versan sobre aspectos de fondo que deberán ser examinados justamente en el reenvío ya ordenado en cuanto a los extremos de la acción civil resarcitoria de interés.
• L)Por efecto extensivo, se declara con lugar el recurso presentado por los licenciados Alejandro Batalla Bonilla y José Luis Campos Vargas, en su condición de apoderados especiales judiciales de la demandada civil Alcatel-Lucent France (antes Alcatel Cit), ordenando el reenvío para una nueva sustanciación conforme a Derecho sobre la acción civil resarcitoria y sus costas. Por economía procesal, se omite resolución expresa sobre las objeciones formuladas, pues versan sobre aspectos de fondo que deberán ser examinados justamente en el reenvío ya ordenado en cuanto a los extremos de la acción civil resarcitoria de interés.
• M)Por efecto extensivo, se declara con lugar el recurso presentado por el licenciado Mario Navarro Arias, apoderado especial judicial de los demandados civiles, Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., Quántica de Servicios S.A.; La Selva de la Marina S.A; Servicios Notariales QC S.A., y [Nombre009] en su condición personal, ordenando el reenvío para una nueva sustanciación conforme a Derecho sobre la acción civil resarcitoria y sus costas. Por economía procesal, se omite resolución expresa sobre las objeciones formuladas, pues versan sobre aspectos de fondo que deberán ser examinados justamente en el reenvío ya ordenado en cuanto a los extremos de la acción civil resarcitoria de interés.
• N)Se declara con lugar el recurso formulado por el licenciado Juan Luis Vargas Vargas, apoderado especial judicial de [Nombre002], presidente, con facultades generalísimas sin límite de suma de la sociedad Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima. Se revoca el comiso ordenado sobre la finca inscrita en el Registro Público de la Propiedad Partido Guanacaste, sistema de Folio Real Matrícula [Valor022], Submatrícula [Valor018].
• Ñ)Se ordena la inmediata libertad de los encartados [Nombre015], [Nombre009] y [Nombre001], si otra causa no lo impide. En el caso de [Nombre001], en virtud de lo resuelto en esta sentencia, se mantiene incólume la condenatoria por un delito de Fraude de Simulación y se ha decretado el reenvío para nueva sustanciación sobre el tema de la cuantía de los bienes objeto de dicho ilícito y en cuanto a la fijación de la pena. Se ordena su libertad para que se mantenga en tal condición a la espera del reenvío donde se discutirán tales aspectos, pues la condición de arraigo familiar, domiciliar y laboral permiten valorar que se mantendrá atento al proceso a la espera de la definición de los aspectos anulados.

Alfredo Chirino Sánchez Jorge Luis Arce Víquez Sandra Eugenia Zúñiga Morales Jueces y Jueza de Apelación de Sentencia Penal Imputado: [Nombre009] y otros Ofendido: Instituto Costarricense de Electricidad y otro Delito: Enriquecimiento ilícito y otros KJIMENEZO