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 SENTENCING APPEALS COURT Resolution: 2012-2550 Case File: 04-006835-0647-PE (9) SENTENCING APPEALS COURT, Second Judicial Circuit of San José. Goicoechea, at one o'clock in the afternoon on December twenty-first, two thousand twelve.

CASSATION AND APPEAL REMEDIES filed in the present case against [Name001], of legal age, divorced, Costa Rican, identity card [Value001], occupation agricultural producer, born on [Value002], son of [Name002] and [Name003]; [Name004], of legal age, single, Costa Rican, identity card [Value003], works in genealogy and history studies, born on [Value004], son of [Name005] and [Name006], resident of [...]; [Name007], of legal age, married, Costa Rican, identity card [Value005], occupation electrician, born on [Value006], son of [Name008], resident of [...]; [Name009], of legal age, married, Costa Rican, identity card [Value007], occupation attorney and notary, born on [Value008], son of [Name010] and [Name011], resident of [...]; [Name012], of legal age, married, Costa Rican, identity card [Value009], occupations attorney, economist, professor and writer, born on [Value010], son of [Name013] and [Name014], resident of [...]; [Name015], of legal age, married, Costa Rican, identity card number [Value011], occupation electrical engineer, born on [Value012], son of [Name016] and [Name017], resident of [...]; [Name018], who was of legal age, married, Costa Rican, identity card [Value013], occupation businessman, born on [Value014], son of [Name019] and [Name020]; [Name021], of legal age, married, identity card [Value015], occupation neonatologist pediatrician, born on [Value016], son of [Name022] and [Name023], resident of [...]; for the crimes of CORRUPTOR'S PENALTY FOR AGGRAVATED CORRUPTION IN THE MODALITY OF IMPROPER BRIBERY, AGGRAVATED CORRUPTION IN ITS MODALITY OF IMPROPER BRIBERY, FRAUD BY SIMULATION, UNLAWFUL ENRICHMENT, AND RECEIVING STOLEN GOODS, to the detriment of the DUTIES OF PUBLIC OFFICE, THE INSTITUTO COSTARRICENSE DE ELECTRICIDAD, AND COLLECTIVE AND DIFFUSE INTERESTS. The judges Alfredo Chirino Sánchez and Jorge Luis Arce Víquez, and judge Sandra Zúñiga Morales, are involved in the decision of the remedy. Appearing at this venue: Dr. [Name012], together with his defense attorneys, licensed attorneys Rafael Gairaud Salazar and Cristian Arguedas Arguedas; licensed attorney Hugo Santamaría Lamicq, in his capacity as defender of Mr. [Name018]; licensed attorney Mario Gonzalo Soto Baltodano, in his capacity as President with powers of Unlimited General Agent of the company denominated Juriso S.A.; licensed attorneys Wilson Flores Fallas and Nazira Merayo Arias, in their capacity as defenders of Mr. [Name007]; licensed attorney Mario Navarro Arias, in his capacity as defender of Mr. [Name009] and Special Judicial Agent of 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.; licensed attorney José Miguel Villalobos Umaña, in his capacity as defender of Mr. [Name021]; Messrs. [Name001], [Name009], [Name015], and [Name021], in a document authenticated by licensed attorney José Miguel Villalobos Umaña; licensed attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, in their capacity as Special Judicial Agents of the company Alcatel-Lucent France (formerly Alcatel Cit); licensed attorneys Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, in their capacity as representatives of the Procuraduría General de la República; licensed attorney Juan Luis Vargas Vargas, in his capacity as Special Judicial Agent of Mr. [Name001], who is the President with powers of Unlimited General Agent of the company denominated Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; licensed attorney Yamura Valenciano Jiménez, in her capacity as defender of Messrs. [Name001] and [Name004]; licensed attorneys Criss González Ugalde and Maribel Bustillo Piedra, in their capacity as representatives of the Public Prosecutor's Office; licensed attorneys Federico Morales Herrera and Erick Ramos Fallas, in their capacity as defenders of Mr. [Name015]; and licensed attorney Germán Calderón Lobo, in his capacity as representative of the Instituto Costarricense de Electricidad.

WHEREAS:

I.- That through judgment number 167-2011, at three o'clock in the afternoon on April twenty-seventh, two thousand eleven, the Trial Court of the Treasury and Public Function of the Second Judicial Circuit of San José, resolved: "THEREFORE: In accordance with the provisions of articles 39 and 41 of the Political Constitution; 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 Criminal Code; current rules on civil liability from the 1941 Criminal Code; 152 of the Organic Law of the Judicial Branch; 1, 9, 42, 238, 239, 240, 258, 265, 360, 361, 363, 364, 365, 366, 367, 368, 378, and 483 of the Code of Criminal Procedure; and 221 and 277 of the Code of Civil Procedure; it is resolved:

• A)Reclassifications and incidental matters:

A.1) Reclassifications: [sic] by unanimity, the facts accused against [Name021] are reclassified from the crime of Aggravated corruption derived from Improper bribery to the crime of Unlawful Enrichment; likewise, the facts attributed to [Name024], considered by the prosecutorial representation as constituting the crime of Unlawful Enrichment, are reclassified to the crime of Receiving stolen goods provided for in article 323 of the Criminal Code. By majority, with the dissenting vote of alternate judge Camacho Morales, the three crimes of Unlawful Enrichment in material concurrence attributed to [Name007] are reclassified to one crime of Unlawful Enrichment.

A.2) Exceptions of statute of limitations: by unanimity, the exception of statute of limitations for the criminal action filed in favor of the defendant [Name024] is granted, in relation to the crimes of Receiving stolen goods and of Real Concealment provided for in articles 323 and 325 of the Criminal Code, and the defense of statute of limitations for the criminal action filed in favor of [Name007] for one crime of Unlawful Enrichment, as reclassified, is rejected.

A.3) By majority, with the dissenting vote of alternate judge Camacho Morales, the exceptions of statute of limitations for the criminal action in favor of [Name012] for four crimes of Unlawful Enrichment and in favor of [Name021] for one crime of Unlawful Enrichment, as reclassified, are rejected.

A.4) By unanimity, the exception of res judicata raised in favor of the accused [Name021] is rejected.

A.5) By majority, with the dissenting vote of alternate judge Camacho Morales, the objection for defective procedural activity filed in defense of the accused [Name021] and requested as of general application for the remaining defendants regarding the bank evidence whose unlawfulness is alleged and which was obtained in a criminal proceeding different from this one, is rejected.

A.6) By majority, with the dissenting vote of alternate judge Camacho Morales, the remaining objections, challenges, and exceptions related to the charged crimes and filed by the parties are rejected.

• B)Acquittals and criminal liability of the defendants:

B.1) By unanimity, due to the statute of limitations for the criminal action, [Name024] is acquitted of all penalty and liability for the crime of RECEIVING STOLEN GOODS, as reclassified, and of REAL CONCEALMENT, both to the detriment of the ADMINISTRATION OF JUSTICE; due to lack of criminal typicity, [Name015] is acquitted of one crime of CORRUPTOR'S PENALTY in relation to the crime of AGGRAVATED CORRUPTION for IMPROPER BRIBERY attributed to [Name021] and reclassified to the crime of UNLAWFUL ENRICHMENT, to the detriment of PROBITY IN PUBLIC OFFICE. Likewise, by unanimity, applying the principle of In dubio pro reo, [Name012] is acquitted of all penalty and liability for four crimes of UNLAWFUL ENRICHMENT in damage of PROBITY IN PUBLIC OFFICE and [Name001] for one crime of FRAUD BY SIMULATION in relation to the transfer of the property registered under Folio Real Number [Value017], Submatrícula [Value018], by deed number [Value019] executed before notary public [Name025], to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and of COLLECTIVE AND DIFFUSE INTERESTS.

B.2) By majority, with the dissenting vote of alternate judge Camacho Morales, [Name015] is declared a co-perpetrator responsible for four crimes of CORRUPTOR'S PENALTY for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY, in material concurrence, in relation to [Name004], [Name001], [Name026], and [Name027], to the detriment of PROBITY IN PUBLIC OFFICE, imposing for each crime the penalty of FIVE YEARS OF IMPRISONMENT for a total of TWENTY YEARS OF IMPRISONMENT which, applying the rules of material concurrence, is reduced to FIFTEEN YEARS OF IMPRISONMENT, a sentence to be served in the place and manner determined by the respective penitentiary regulations, once the served pre-trial detention is deducted. The absolute disqualification requested by the Public Prosecutor's Office is rejected due to the lack of concurrence of the legal prerequisites for its application.

B.3) By majority, with the dissenting vote of alternate judge Camacho Morales, [Name009] is declared a co-perpetrator responsible for three crimes of CORRUPTOR'S PENALTY for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY in relation to [Name004], [Name001], and [Name026], to the detriment of PROBITY IN PUBLIC OFFICE, imposing for each crime the penalty of FIVE YEARS OF IMPRISONMENT for a total of FIFTEEN YEARS OF IMPRISONMENT, a sentence to be served in the place and manner determined by the respective penitentiary regulations, once the served pre-trial detention is credited. The absolute disqualification requested by the Public Prosecutor's Office is rejected due to the lack of concurrence of the legal prerequisites for its application.

B.4) By majority, with the dissenting vote of alternate judge Camacho Morales, [Name018] is declared a co-perpetrator responsible for one crime of CORRUPTOR'S PENALTY for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY with respect to [Name027], and a perpetrator responsible for one crime of CORRUPTOR'S PENALTY for PROPER BRIBERY in relation to [Name026], both in damage of PROBITY IN PUBLIC OFFICE, imposing the penalty of FIVE YEARS OF IMPRISONMENT for the first and FIVE YEARS OF IMPRISONMENT for the second for a total of TEN YEARS OF IMPRISONMENT, a sentence to be served in the place and manner determined by the respective penitentiary regulations, once the pre-trial detention he may have served is deducted. The absolute disqualification requested by the Public Prosecutor's Office is rejected due to lack of concurrence of the legal prerequisites for its application.

B.5) By majority, with the dissenting vote of alternate judge Camacho Morales, [Name004] is declared a perpetrator responsible for the crime of AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY to the detriment of PROBITY IN PUBLIC OFFICE, imposing the penalty of FIVE YEARS OF IMPRISONMENT, to be served in the place and manner determined by the respective penitentiary regulations, once the served pre-trial detention is deducted. Likewise, he is DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.

B.6) By majority, with the dissenting vote of alternate judge Camacho Morales, [Name001] is declared a perpetrator responsible for one crime of AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY, to the detriment of PROBITY IN PUBLIC OFFICE, and one crime of FRAUD BY SIMULATION regarding the vehicles transferred by deed number [Value020] before notary public [Name028] to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and of COLLECTIVE AND DIFFUSE INTERESTS, imposing the penalty of FIVE YEARS OF IMPRISONMENT and TEN YEARS OF IMPRISONMENT respectively, for a total of FIFTEEN YEARS OF IMPRISONMENT, a sentence to be served in the place and manner determined by the respective penitentiary regulations, once the pre-trial detention he may have served is deducted. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.

B.7) By majority, with the dissenting vote of alternate judge Camacho Morales, [Name007] is declared a perpetrator responsible for one crime of UNLAWFUL ENRICHMENT, as reclassified, committed in damage of PROBITY IN PUBLIC OFFICE, imposing the penalty of TWO YEARS OF IMPRISONMENT to be served in the place and manner determined by the respective penitentiary regulations, upon crediting the served pre-trial detention. Equally, he is disqualified for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions. Because the legal prerequisites are met, he is granted the BENEFIT OF CONDITIONAL EXECUTION of the custodial sentence for a probation period of five years, during which he must not commit any intentional crime for which he is sanctioned with a penalty equal to or greater than six months of imprisonment, in which case this benefit will be revoked.

B.8) By majority, with the dissenting vote of alternate judge Camacho Morales, [Name012] is declared an instigator responsible for the crime of AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY to the detriment of PROBITY IN PUBLIC OFFICE, imposing the penalty of FIVE YEARS OF IMPRISONMENT to be served in the place and manner determined by the respective penitentiary regulations, once the served pre-trial detention is deducted. Likewise, he is DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.

B.9) By majority, with the dissenting vote of alternate judge Camacho Morales, [Name021] is declared a perpetrator responsible for one crime of UNLAWFUL ENRICHMENT, as reclassified, committed to the detriment of PROBITY IN PUBLIC OFFICE, imposing the penalty of TWO YEARS OF IMPRISONMENT to be served in the place and manner determined by the respective penitentiary regulations, once the served pre-trial detention is credited, without considering the concurrence of the legally established requirements for him to merit the benefit of conditional execution of said sentence. Likewise, he is DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.

• C)Civil aspects:

C.1) By unanimity, regarding the CIVIL ACTION FOR DAMAGES filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD:

C.1.1) The civil complaint filed by the said institute against [Name015] is deemed withdrawn, who expressly waived for costs to be imposed on the civil plaintiff.

C.1.2) The ruling on the substantive law discussed is omitted in relation to the civil actions filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the civil defendants [Name009], [Name004], [Name012], [Name024], [Name021], [Name001], [Name007], SERVICIOS NOTARIALES QC S.A., and ALCATEL CIT.

C.1.3) The civil complaint filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the cited defendants is resolved without special imposition of costs on either party.

C.1.4) Once the judgment is final, the lifting of the attachments decreed in favor of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD with respect to the cited civil complaints is ordered.

C.1.5) The request for an award of damages caused by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD through the attachments executed to guarantee the outcome of this proceeding is rejected.

C.2) By unanimity, regarding the CIVIL ACTION FOR DAMAGES filed by the PROCURADURÍA GENERAL DE LA REPÚBLICA:

C.2.1) The ruling on the substantive law discussed is omitted in relation to the civil actions filed by the PROCURADURÍA GENERAL DE LA REPÚBLICA against the civil defendants [Name015], [Name009], [Name004], [Name012], [Name024], [Name021], [Name001], [Name018], [Name007], 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 complaint filed by the PROCURADURÍA GENERAL DE LA REPÚBLICA with respect to the cited civil defendants is resolved without special imposition of costs on either party.

C.2.3) Upon the finality of the judgment, the lifting of the attachments decreed in favor of the PROCURADURÍA GENERAL DE LA REPÚBLICA in relation to the filed civil complaints is ordered.

C.2.4) The request for an award of damages caused by the PROCURADURÍA GENERAL DE LA REPÚBLICA through the attachments executed to guarantee the outcome of this proceeding is rejected.

• D)Forfeiture and declaration of instrumental falsity: By majority, with the dissenting vote of alternate judge Camacho Morales, the forfeiture of the following assets is ordered in favor of the State:

D.1) The properties registered in the Public Property Registry: District of Guanacaste under the Folio Real system, Folio Real Number [Value021], Submatrícula [Value018]; District of [...] under the Folio Real system, Folio Real Number [Value022], Submatrícula [Value018]; District of [...], Folio Real system, Folio Real Number [Value023], Submatrícula [Value024]; and District of [...] registered under the Folio Real system, Folio Real Number [Value025], Submatrícula [Value018].

D.2) The investment certificate number [Value026] that was renewed as certificate number [Value027] for the amount of five million four hundred sixty-three thousand five hundred fifty-five colones 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, economic backing of checks number [Value028] from Banco Interfin and number [Value029] from Bank of New York Delaware, both made out to [Name026] and deposited to the order of this court.

D.4) The shares of [Name009] in the company La Selva de La Marina S.A., owner, among others, of the real estate registered in the Public Registry under the Folio Real system, Folio Real Number [Value030], Submatrícula [Value018], and Folio Real Number [Value031], Submatrícula [Value018].

D.5) The vehicles make Suzuki Grand Vitara XL, license plate number [Value032]; and make Suzuki Jimny, license plate number [Value033].

D.6) The instrumental falsity of public deed number [Value020] granted before notary public [Name028] by [Name001] and [Name029] is declared, for which reason the transfer of assets ordered in said instrument by the sentenced individuals [Name068] must be annulled, proceeding with the corresponding registry rectifications.

• E)Precautionary measures:

E.1) Pre-trial detention: by majority, with the dissenting vote of alternate judge Camacho Morales, the request of the Public Prosecutor's Office is granted and the precautionary measure of pre-trial detention is decreed with respect to [Name009] and [Name001] for a period of eighteen months to be computed from April twenty-seventh, two thousand eleven, until October twenty-seventh, two thousand twelve, and regarding [Name015] for a period of twelve months to be computed from April twenty-seventh, two thousand eleven, until April twenty-seventh, two thousand twelve. The foregoing due to the modification of the situation held by the defendants [Name015], [Name009], and [Name001] before this proceeding, as well as the nature and quantum of the penalty imposed on each of them, which constitutes sufficient reason for, being at liberty, each of them to seek viable alternatives to evade their criminal liability and render nugatory the goals of the Administration of Justice, whose protection and roots are of constitutional order.

E.2) Supplementary measures: by majority, with the dissenting vote of alternate judge Camacho Morales, at the request of the representation of the Public Prosecutor's Office, the following alternative precautionary measures to pre-trial detention are imposed on the sentenced individuals [Name004], [Name012], [Name018], and [Name021]: the prohibition against leaving the country from April twenty-seventh, two thousand eleven, and until the judgment is final, for which each of the sentenced individuals must deposit their passport at the seat of this Court within twenty-four hours following the issuance of this resolution; and the obligation to appear before this Court on the twenty-seventh day of each month, extendable to the next business day when that date is a non-business day, in witness of which a registry must be kept where they stamp their signatures. The described measures will be in effect from the reading of the operative part of the judgment and until the judgment is final, with the warning that upon non-compliance with the established conditions or the indicated alternative precautionary measures, the pre-trial detention now relegated could be applied.

• F)Other relevant aspects:

F.l) Costs of the proceeding: by unanimity, the costs of the criminal proceeding are borne by the State.

F.2) Personal costs: by unanimity, the costs of the proceeding regarding the exercise of the criminal action are borne by the defendants. Given the proven economic solvency of the sentenced individuals [Name004], [Name001], [Name018], and [Name007], who opted for the legal advice of attorneys from the Public Defense of the Judicial Branch, in accordance with articles 152 of the Organic Law of the Judicial Branch and 265 of the Code of Criminal Procedure, each must pay the fees of the professionals who have assisted them during this proceeding. An item set at the sum of TEN MILLION COLONES that covers their professional performance from their appearance and until the issuance of this judgment, but not the potential remedies and other actions that may be required subsequent to its issuance. Said sum must be paid by each of the accused in favor of the Judicial Branch within the fifteen days following computed from the finality of the judgment, with the consequent seizure and auction of their assets upon non-compliance with this obligation.

F.3) Communications: by majority, with the dissenting vote of alternate judge Camacho Morales, issue the pertinent communications regarding the prohibition against leaving for [Name004], [Name018], [Name012], and [Name021] to the Dirección General de Migración y Extranjería. Once this judgment is final, the rigorous official communications will be sent to the Tribunal Supremo de Elecciones regarding the absolute disqualifications of [Name004], [Name012], [Name021], [Name001], and [Name007] for holding publicly elected office, and to the Civil Service for the absolute disqualifications in the appointment to the remaining public jobs, positions, and commissions. Notify the Public Property Registry of the instrumental falsity declared regarding the deed granted before notary public [Name028]. Send the communications to the Instituto Nacional de Criminología, the Sentence Execution Court, and the Judicial Registry so they may proceed with their respective duties. NOTIFY .-" (sic.).

II.- That against the preceding pronouncement, cassation remedies reclassified as appeal remedies were filed by: Dr. [Name012], together with his defense attorneys, licensed attorneys Rafael Gairaud Salazar and Cristian Arguedas Arguedas; licensed attorney Hugo Santamaría Lamicq, in his capacity as defender of Mr. [Name018]; licensed attorney Mario Gonzalo Soto Baltodano, in his capacity as President with powers of Unlimited General Agent of the company denominated Juriso S.A.; licensed attorneys Wilson Flores Fallas and Nazira Merayo Arias, in their capacity as defenders of Mr. [Name007]; licensed attorney Mario Navarro Arias, in his capacity as defender of Mr. [Name009] and Special Judicial Agent of 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.; licensed attorney José Miguel Villalobos Umaña, in his capacity as defender of Mr. [Name021]; Messrs. [Name001], [Name009], [Name015], and [Name021], in a document authenticated by licensed attorney José Miguel Villalobos Umaña; licensed attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, in their capacity as Special Judicial Agents of the company Alcatel-Lucent France (formerly Alcatel Cit); licensed attorneys Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, in their capacity as representatives of the Procuraduría General de la República; licensed attorney Juan Luis Vargas Vargas, in his capacity as Special Judicial Agent of Mr. [Name001], who is the President with powers of Unlimited General Agent of the company denominated Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; licensed attorney Yamura Valenciano Jiménez, in her capacity as defender of Messrs. [Name001] and [Name004]; licensed attorneys Criss González Ugalde and Maribel Bustillo Piedra, in their capacity as representatives of the Public Prosecutor's Office; licensed attorneys Federico Morales Herrera and Erick Ramos Fallas, in their capacity as defenders of Mr. [Name015].

III.- That having verified the respective deliberation in accordance with the provisions of article 465 of the Code of Criminal Procedure, the Court considered the questions raised in the appeal remedy.

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

Authored by Sentencing Appeals Judge Chirino Sánchez; and,

WHEREAS:

I.- REMEDY OF DR. [Name012]. Mr. [Name012], in the exercise of his material defense, has challenged judgment number 167-2011, issued by the Trial Court of the Treasury and Public Function of the Second Judicial Circuit of San José at 3:00 p.m. on April 27, 2011, which declared him a perpetrator responsible for a crime of «Instigation to commit the crime of Aggravated corruption in the modality of Improper bribery», to the detriment of Probity in Public Office, imposing a penalty of five years of imprisonment and another of twelve years of disqualification from obtaining and holding public jobs, positions, or commissions. The accused [Name012] has expressed his disagreement with the condemnatory judgment through successive documents, the first of which is an "appeal" remedy that he filed on June 2, 2011 (cf. Volume XXXV, pages 16762 to 16893). The second is a "cassation" remedy he filed on August 1, 2011 (cf. Volume XXXVII, pages 17408 to 17648). The third is an "addendum" to his cassation remedy on procedural grounds, a filing he submitted on August 5, 2011, alleging a violation of the principle of natural judge (cf. Volume XXXVII, pages 17908 to 17903). In Volume XXXVIII, other documents of his are observed that are also necessary to mention, on pages 171854, 171855, 171909 to 171910, and 171945; as in them he refers to the admissibility of his «addendum» and offers proof thereof. Finally, in Volume XXXIX, there is the "appeal of judgment remedy" (filed on February 10, 2012, cf. pages 172346 to 172686), through which Dr. [Name012] reclassifies his previous cassation claims into a criminal judgment appeal remedy, in accordance with Transitory Provision III of Law No. 8837 of May 3, 2010 («Creation of the judgment appeal remedy, other reforms to the challenge regime, and implementation of new rules of orality in the criminal process»).

Submission.- This last brief begins with a thirty-one-page "Summary" in which Dr. [Name012] explains that he is presenting the readjustment of the appeal and the amplification that he timely filed against judgment No. 167-2011. Specifically, he challenges what was ordered by the majority vote of judges Rosaura García Aguilar and Ileana Méndez Sandí (Judge Jorge Camacho Morales dissented). Throughout this compendium or preliminary summary of the appeal, he accuses the failure to observe Articles 24, 30, 33, 34, 35, 39, 40, 152, 153 and 153 of the Political Constitution; 1, 2, 3, 5, 7, 8, 10, 28 of the Universal Declaration of Human Rights; 2, 5, 17, 18 and 26 of the American Declaration of the Rights and Duties of Man; 2.1, 3, 7, 9.3, 10, 14.1, 14.3 subsections d) and f) of the International Covenant on Civil and Political Rights; 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 («Pact of San José»); 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 (Código Procesal Penal); 46, 72 subsections a), e) and f), and 342 of the Penal Code (Código Penal); of the Law on the registration, seizure and examination of private documents and intervention of communications (Ley N° 7425, in force since its publication in La Gaceta of September 8, 1994); and of Article 62 subsection a) of Law N° 8422 of October 6, 2004 (Law against Corruption and Illicit Enrichment in Public Office, in force since its publication in the newspaper La Gaceta N° 212 of October 29, 2004); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Inter-American Convention to Prevent and Punish Torture; therefore requesting that the judgment be annulled in accordance with Articles 458, 459 and 465 of that same legal text, that the conviction be annulled, and that his acquittal be declared. He warns that due process has been radically breached to his detriment, since October 15, 2004 itself, when—voluntarily and with prior notice to 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 considers that there are many failures to observe and erroneous applications of the law in which the judgment incurs regarding the determination of the facts that were held as proven by the majority of the court (which do not specify circumstances of place and time, who participated, what the reasons for the actions were, how the payments occurred and what they correspond to, in relation to the contracts between Alcatel, regarding the false participation attributed to him before [Name026] for the collection of debts from Alcatel; regarding supposed payments made to him by [Name026] with Alcatel resources), a determination of facts that becomes arbitrary. In general terms, he questions the legitimacy of the evidence incorporated into the trial and the assessment of the evidence (which does not conform to the rules of sound criticism (sana crítica)), the legal reasoning of the judgment (which is incomplete and in many cases contradictory), and the determination of the imposed sentence. He argues that the statement—which is not testimonial evidence—of the confessed accused and collaborator [Name026] has been erroneously assessed (since there is no external element that supports or corroborates his say-so) to link him to the crime, and that the existence of documents that in no way correspond to what the judgment argues is falsely claimed, a judgment that, illegitimately and contradictorily, is anchored in banking evidence brought from Panama, without judicial authorization, violating the constitutional right to privacy, despite the fact that the court itself—unanimously—declared other evidence of the same origin illegitimate, precisely for those reasons, just as it accepts illicit evidence for being received outside the term of the judicial authorization or from entities different from those ordered to deliver it. The majority of the court refused to hear and resolve serious violations in the negotiation and judicial approval of the opportunity criterion (criterio de oportunidad) for [Name026]. He was subjected to the modification of a statute of limitations condition that already protected him, based on a law enacted after the event that protected him occurred. He was tried violating his right to a natural judge (juez natural) and was imposed the maximum penalty for an alleged Instigation that not even [Name026] himself dared to declare, as he instead repeatedly reiterated that he accepted the corrupt offer before the conversation he falsely claims to have had with him to inform him of it. Despite the repeated requests of his defense attorneys, the other contracts between Alcatel and Servicios Notariales Q.C. for purchases prior and different from ICE to Alcatel were not investigated, to determine if irregularities occurred in them or if the supposed payments received could have originated from other lawful causes. It was an error by the majority of the court to blindly consider [Name026]'s statements as confirmed, since the truth is that he incurred in evident contradictions and falsehoods, according to the rules of sound criticism (sana crítica). The observations that the expert witnesses of his technical defense ([Name030] and [Name031]) made regarding the statements of the Forensic Auditor were not analyzed in a reasoned manner, despite the serious limitations of his reports, because the forensic experts did not collate or verify the information in cases of inconsistencies in dates, transaction times, bank paperwork, client signatures, constitution and liquidation of investment certificates, since they fully trusted what the banks told them. Throughout the trial, a series of suspicious indicators regarding the actions of Banco Cuscatlán, Cuscatlán International Bank, and Grupo Cuscatlán were clearly established, but knowledge of these circumstances did not lead the Prosecutor's Office to investigate whether money laundering laws were being violated, nor did the forensic experts bother to make inquiries in that regard, or at least communicate it to SUGEF. The lady judges signing the majority vote believe [Name026]'s account of the supposed meetings in [...] and at [Name012]'s house, without having other evidentiary support than the migratory movements registered by the supposed participants, records that perhaps only allow establishing that [Name026], Alcatel representatives, and the accused were in the country on those dates. To give credibility to [Name026], regarding the meetings in [...] and at the appellant's house, the lady judges state that the subsequent payments confirm the instigation, but that conclusion does not follow with certainty, because the sums subsequently received—if any—could have come from other causes different from a crime: "It is guilt that must be proven, not innocence," states the complainant, and he adds that the existence of a criminal plan by Alcatel or that [Name026] voted for the award of the four hundred thousand lines, are not circumstances that demonstrate with certainty that [Name012] acted as an instigator. He emphasizes that [Name026] himself, on at least three occasions, declared at trial that he had already accepted Alcatel's offer in principle (he requests to see the statements he gave at trial on September 8 at 15:40:40 hours and September 9, at 08:11 hours and at 13:45 hours, all in 2010), so he did not need convincing to carry out his plan; the witnesses and [Name026] himself agreed that the challenger never asked any director or official of ICE for anything regarding the bidding for four hundred thousand GSM cellular lines, nor regarding any other purchase or contract. [Name026] does not even claim to have informed [Name012] in the false meeting of his alleged commitments with Alcatel, much less to have told him that he needed his help to fulfill them. The lady judges blindly believe the accused [Name026], despite the contradictions he incurred, despite the fact that both heard him declare about his unjustified income when he was Minister of Housing and the other income related to other alleged crimes confessed by [Name026] and that were corroborated by the O.I.J. All possible bank accounts, in colones or dollars, of [Name026] and his wife were not investigated, because the Public Prosecutor's Office (Ministerio Público) did not request it, and for that same reason, the other possible crimes of [Name026] were not investigated either, but he was presumed innocent, whereas for the challenger [Name012], the burden of proof was reversed, this being so because—according to the judges—he did not prove a different nature as the reason for the supposed payments attributed by [Name026]. In contrast, Judge Camacho Morales, in his dissenting or minority opinion, makes a careful analysis that demonstrates that the verification of a promise of a bribe by the alleged corrupters does not occur in any case, and that the dates indicated in the majority vote are not compatible with a congruent explanation of the tasks entrusted to [Name026]. The funds that [Name012] received from [Name026] —asserts the challenger— actually correspond to a loan whose payment his lawyers recorded in 2004, but the lady judges assure that it is not a loan only because [Name026] states that it is not. Judge Camacho Morales noted the illegality of evidence 588, which gave rise to the case and was received without a court order, in clear violation of the constitutional order. It is a situation identical to that of other evidence also brought from Panama, but which was unanimously declared illegal by the same criminal court in this trial, by resolution at 8:00 hours on May 14, 2010, for having bypassed that fundamental requirement of the court order, necessary for the lifting of bank secrecy to be lawful. The Public Prosecutor's Office (Ministerio Público) alleged that evidence 588 is valid because the consent of the legal representative of the company whose banking relationships in Panama were brought to the trial was given. That purported authorization occurred almost seven years after the illegal obtaining of the evidence and three days after the Trial Court issued its resolution at 8:00 hours on May 14, 2010, which declared the Panama evidence without judicial authorization illegal; and it occurred without verifying the legal standing of the alleged representative. Regarding the banking evidence obtained in application of the "Central American Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama," Judge Camacho Morales is correct when he says that the legal formalities established as a guarantee of a fundamental right must be fulfilled in every case because they are matters of public order (orden público) and are not disposable by private individuals. And the other evidence derived from No. 588 is in turn illegitimate, so its suppression means that there is no evidence of any fact of the accusation. The invalidity of this evidence was decreed by the Criminal Chamber (Sala Penal) of the Supreme Court of Justice two weeks after the issuance of the judgment challenged in this venue, when the Third Chamber of the Supreme Court of Justice [he alludes to judgment No. 499 of 11:45 hours on May 11, 2011] resolved the appeals filed against the judgment issued in the "Caja-Fischel" case, which refers not only to the same evidence, but also to another matter in which, as in this one, an attempt was made to give it value through the authorization of [Name032]. But in addition, there are nineteen other pieces of banking evidence [which he requests be considered as evidence of this grievance] that suffer from the original defect that the judicial resolution did not decree the lifting of bank secrecy, but merely gave an order for examination, registration, and seizure of the documentation (if the lifting is not ordered, the bank cannot provide the information, even if prosecutors or police were empowered for the seizure of the documentation). The violations occurred first regarding 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 deadline ordered by the Guarantee Judge for carrying out the proceeding had expired), and then when the court erred in giving validity to that illegally obtained evidence incorporated into the trial, which affected an incorrect determination of the facts. According to the vote of Judge Camacho Morales, the procedure followed for granting the opportunity criterion (criterio de oportunidad) to [Name026] was defective and illegal, it was improper to authorize it, and the resolution of the Criminal Court that agreed to it is ineffective because it lacks basis, hence the statement that this accused gave during the trial is illegal. The lady judges of the Court rejected the protest for defective procedural activity, declaring themselves incompetent to resolve the defects in its processing and judicial approval (cf. resolution at 13:30 hours on September 2, 2010, volume XXXVIII, folios 13676 to 13736 back). The opportunity criterion (criterio de oportunidad) was applied to [Name026]; he was disproportionately benefited as a supposed "collaborator," even though he is not an accused whose conduct shows lesser culpability (reprochabilidad) compared to that attributed to the other agents. The Public Prosecutor's Office (Ministerio Público) hid from the criminal judge who approved the opportunity criterion (criterio de oportunidad) decisive information to establish the culpability (reprochabilidad) of his conduct, for other actions of his that could also be considered criminal, but against which the Prosecutor's Office did not subsequently exercise criminal action, due to the application of the opportunity criterion (criterio de oportunidad), so that in fact he was granted an impunity beyond jurisdictional control. Regarding the statute of limitations for criminal action, he reproaches that the lady judges incorrectly applied subsection a) of Article 62 of the Law against Corruption and Illicit Enrichment in Public Office, Law N° 8422 of October 6, 2004 (in force since its publication in the newspaper La Gaceta N° 212 of October 29, 2004), which eliminates the reduction of the term by half established by Article 33 of the Code of Criminal Procedure (Código Procesal Penal) that operates with the preliminary investigation statement (indagatoria). The first formal charge occurred with the statement of October 15, 2004, and had the effects of the law in force at the time; that effect cannot be modified by a later law, as it would imply a retroactive application of the law to his detriment, infringing Article 34 of the Political Constitution. There was an infringement of the principle of natural judge (juez natural), because Judge Rosaura García was brought from the Judicial School to preside over the Trial Court and as soon as the trial ended, she returned to the Judicial School, despite which she continued returning to the Court to participate in instances of this process, unlike Judge Camacho Morales, who transferred to another judicial venue and does not participate in an instance for resolving a request for clarification and addition (in which Judge Rosaura García did participate). The Trial Court prevented him from exercising his material defense. Given his professional specialty, Dr. [Name012] requested the Court to allow him to personally exercise his material defense, questioning the expert witness [Name033], in relation to the quantification of the social damage caused by the acts of corruption attributed to the civil defendants, but the Court denied him the exercise of that right, so his defense reserved the right to cassation. The lady judges who issued the conviction acted conditioned and influenced by social circumstances. An event of the media and political dimension such as the criminal trial of a former President of the Republic and Secretary General of the Organization of American States carries an immense emotional burden, also due to the mockery that was set up when he voluntarily returned to the country and the climate experienced nationally since then, all this magnified by the actions of the then President [Name034], Attorney General Francisco Dall'Anese Ruiz, political leaders, and the media. There was a "staging of indictment" and he was thus pre-condemned by public opinion in a media trial, with greater harshness because he is a public figure. That parallel trial exerts pressure that influenced the judicial process, because it created in the subconscious of the lady judges the idea that only a conviction would meet popular expectations and defend the prestige of the Judiciary. "Judges cannot depart from being the mouth of the law," emphasizes the appellant, but the judges, subconsciously predetermined or biased by the weight of that social environment, opted for unfounded interpretations to conclude in his conviction, despite there being no demonstration of his guilt, throughout a torturous and degrading process, in which he was even unduly deprived of his liberty. The sentence imposed on him is contradictory, lacks reasoning, and is not objective. The appellant was given the maximum sentence, while the opportunity criterion (principio de oportunidad) was applied to [Name026], who appears linked to more criminal acts and with more accused persons. When setting the sentence, they only refer to his status as a former President, but his positive or favorable personal conditions, prior and subsequent to the events, such as his age, his behavior throughout the entire process, were not taken into account. Nor do the lady judges explain why they deny the benefit of conditional suspension of the sentence, when all the objective and subjective conditions for its application are met, because he would be a first-time offender, has a family, and works as a professor at the University of Costa Rica despite being retired. After this "Summary," between folios 172377 to 172378, he develops an "Index" that lists the different sections and claims developed throughout the appeal, as follows: Section One.- Disagreement with the determination of the facts. The determination of facts held as true in the judgment violates the rules of logic, psychology, and experience in a gross manner and, in many cases, are contradictory to each other, so they have no reasoning and their determination becomes arbitrary. The facts alleged to be proven do not correspond to the evidence presented at trial (cf. Appeal, folios 172381 to 172382). A. False determination of the decision to corrupt. The proof of proven facts of the judgment numbers 26, 27 and 48 is challenged, considering them mere assumptions, arbitrary and lacking in basis (cf. appeal, folios 172382 to 172386). B. False determination of the object of the contracts between Alcatel and Servicios Notariales QC. The proof of proven facts of the judgment numbers 48 to 59 is refuted. The contracts prior to the four consultancy contracts between Alcatel and Servicios Notariales QC that referred to fixed lines were not investigated by the Public Prosecutor's Office (Ministerio Público), nor taken into account by the lady judges, despite those prior contracts possibly being related to other illegitimate actions of [Name026] prior to the contracting for the four hundred thousand GSM cellular lines. Logic indicates that when a situation can be caused by different and independent events, it is not possible to attribute it to only one of them without eliminating the possibility that others could have occurred. "Why—asks the appellant—if the contracts existed since before, if they refer to other sales to ICE, if these other sales to ICE occurred, if they occurred when [Name026] was a director of ICE, if the transfers of resources from Alcatel to [Name026] refer to those other events, and if the OIJ experts say they are payments for those events, why is that possibility rejected out of hand?" The conclusion does not follow from the premises (non sequitur, says the appellant, who again reproaches the lack of objectivity of the lady judges, cf. folios 172386 to 172393). C. False statements about my alleged participation in the supposed actions of [Name026] to collect from Alcatel. The proof of proven facts numbers 64, 68, 69, 70, 71, 74 and 75 is rebutted, which are not clear or precise, contradict number 48, and some of them have no more support than the say-so of the collaborator accused [Name026], which is not testimony but the statement of an interested accused, whose statements necessarily should have been corroborated by other evidentiary means, which did not happen in the present case. Traveling to Paris to make a phone call seems very strange, but it is an unbelievable absurdity to argue that [Name026] went to Paris in 2001 to make a call that was made in mid-2000, which denotes that the lady judges blatantly manipulate the evidence, against the most elementary rules of experience (cf. folios 172393 to 172395). D. Unfounded statements about supposed meetings of [Name026]. The proof of proven facts of the judgment numbers 85 to 93 is objected to, because they have no other support than the statement of the collaborator accused [Name026]. For the lady judges, if the accused [Name026] says that they met with Mr. [Name035] in [...], it is enough to verify that he had not left the country to corroborate his say-so. According to [Name026], he accepts in principle the offer made to him (see statements of [Name026] of September 8 at 15:41 hours and September 9 at 13:45 hours, 2010) and what he may have reflected upon arriving at his house has no support other than his say-so. The percentage of participation mentioned has no relationship with the amounts that [Name026] says he gave to [Name012]. According to the statements of the confessed accused [Name026] before the Court, the reason he sought out [Name012]—in that meeting of which there is no proof whatsoever—would have been to feel protected given the magnitude of the events and due to his closeness with Mr. [Name012], to be able to fulfill the three tasks that, according to [Name026], Alcatel entrusted to him through its officials. Proven facts 85 to 92 are only deduced from the last statements issued as consideration for an agreement with the Public Prosecutor's Office (Ministerio Público) at the date of making the arrangement for an abbreviated proceeding: "This occurs at the beginning of May 2005 -says the appellant- when [Name026]'s statement is given for the first time that his acceptance of Alcatel's offer was before the purchase of the 400,000 lines (see main file Volume VIII folios 2992 to 3010). Previously, from his first preliminary investigation statement (indagatoria) he maintains that it was a reward after the award . That strange statement in three days, but written as a document prepared due to an agreement with paragraphs in quotation marks, precise punctuation and drafting of a brief and not of a statement, remains as the basis of the agreement for the opportunity criterion (criterio de oportunidad) as stated by Prosecutor Criss González to the Trial Court. Let the judges note how the facts truly proven fit better with [Name026]'s first version (payments as a reward from Alcatel to secure, possibly, the expansion of the bid by 50% and new future contracts; of course, this does not mean there were not previous payments for other contracts) than with the second, [Name026]'s agreement with Alcatel on a Saturday at the end of 2000. The second version is contradictory because [Name026] could not know the amount in dollars of the bid, nor that it was 400,000 lines, nor is it logical to pay for a migration to GSM that had already been approved many months earlier, that he had responsibility for the bid being issued when it was ordered by the Comptroller General of the Republic in January 2001 when it did not accept direct purchases. Perhaps those circumstances explain why the prosecutor's office did not investigate or try to verify the supposed meetings in [...] of [Name026] with Alcatel representatives, nor at my house with me." According to proven fact number 93, [Name026] did know the amount of the bid before December 5, which is when the amount of the lines is determined: "So that the lady judges accept contradictory versions from [Name026] as is convenient to ratify the conviction that the media and politicians had already subconsciously inculcated. Please also note, appellate judges, how the lady judges, without any basis, claim that he conveyed to me: 'and the actions he must do in exchange' In no statement by [Name026] to the Prosecutor's Office, nor during the trial, did [Name026] state such a thing. Where do the lady judges get that claim?... " (cf. appeal, folios 172395 to 172400). E. False determination of facts regarding supposed payments by [Name026]. The proof of proven facts numbers 95 to 98 and 100 to 114 is challenged, which have no more support than the statement of the collaborator accused [Name026]; the report No. 297-DEF-540-04/05 of the Judicial Investigation Organization (Organismo de Investigación Judicial) itself concludes that it is not possible to state anything regarding the supposed cash deliveries that, for different reasons, on diverse and contradictory occasions, [Name026] claims to have made to [Name012], which is impossible to verify with the existing evidence. The lady judges violate the rules of sound criticism (sana crítica) by considering that [Name026] collaborated out of repentance and patriotism, or that if he incurred contradictions, it was due to his "mood," since it is evident that he was interested in the conviction of [Name012] to obtain his impunity in exchange. [Name026] indicates that he did not make payments to [Name012] of 60% that according to him [Name012] asked for, because he considered it unfair and disproportionate: "What does 'unfair and disproportionate' mean -asks the challenger- in the say-so of [Name026] that the lady judges pick up? Unfair because [Name026] is a principal author, which I could not be even with his false accusations? Disproportionate in relation to the responsibilities that [Name026] knows correspond to him? If so, how could an opportunity criterion (criterio de oportunidad) have been applied in favor of [Name026]?" [Name026] did not give a statement as a witness in the trial; he does not have the status of a witness (but rather a confessed accused, presumably "collaborator"), nor was he sworn under an obligation to tell the truth. No other evidentiary means were validly incorporated into the trial that confirm the truth of his statements regarding the crux of the facts according to the definition of the crime: the existence of the promise of retribution, the act contrary to duties, the occasion and time of those non-existent acts, the actions that [Name026] says he carried out (cf. appeal, folios 172400 to 172406). Section Two.- Disagreement with the incorporation and assessment of the evidence. There are gross errors in the incorporation of the evidence for the majority vote due to a lack of precise and detailed determination of facts held as proven by the court. In the majority vote, there is a lack of reasoning, contradictory reasoning, and failure to observe the rules of rational sound criticism (sana crítica) with respect to evidentiary means and elements of decisive value. The reasoning for assessing the evidence is completely contrary to the facts recorded in the facts determined by the evidence. The judgment is based on illegitimate evidence that makes it totally invalid. A. The consultancy contracts between Servicios Notariales QC S.A. and Alcatel. There is no detailed determination that all the Alcatel - Servicios Notariales QC contracts were for illegal payments related to the four hundred thousand cellular lines. The irreparable harm from holding this fact as true is that it is related to the four hundred thousand cellular lines and Alcatel payments that the O.I.J.'s own judicial experts establish as caused by other reasons, thereby holding as proven an alleged receipt by [Name012] of money coming from Alcatel.

Requests the annulment of the conclusion that Alcatel payments for contracts and invoices unrelated to the four hundred thousand lines are for payments of that GSM cellular negotiation, and that the conviction against him be annulled, declaring his acquittal (cf. appeal, folios 172406 to 172415). B. Alleged request from [Name012] to [Name026] for Alcatel to honor outstanding debts. This topic is developed between pages 1301 and 1307 of the judgment, without offering a single argument that proves [Name026]'s statement to the effect that [Name012] asked him to help in the collection from Alcatel that, according to him, he was asked to do, and that [Name012] asked him to take advantage of a trip to Paris to promote that payment. The lady judges made speculations lacking support and procedural interest, but with a high political charge regarding the activities of a distinguished lawyer who has held very important functions in Governments of the Partido Unidad Social Cristiana. It is false that the appellant participated in that collection (cf. appeal, folios 172415 to 172416). C. Alleged payments to [Name012] and their relationship with resources from Alcatel. There is no circumstantiated determination that the alleged payments from [Name026] to [Name012] occurred, nor that they came from Alcatel resources related to the four hundred thousand cellular lines, and thus the rules of logic, psychology, and banking experience are violated. The irreparable harm (gravamen irreparable) of accepting these facts as true is that they are indispensable to relate him to the crime they seek to attribute to him. Requests that the judgment's conclusions regarding payments from [Name026] to him be annulled and that the conviction against him be annulled. The matter concerning the delivery and receipt of the bribe (dádiva) is developed by the lady judges between pages 1703 to 1799 of the judgment. The forensic expert declared that "It was not determined that Mr. [Name012] directly received money from Servicios Notariales QC or from Intelmar" (page 165 of the judgment), so it is essential to be able to establish, in each case, an unbroken chain of resource transmission in order to validly conclude that Alcatel resources reached the hands of [Name012] through the instigation he supposedly made to [Name026] to commit a crime. However, the lady judges have the audacity to affirm that the receipt of the monies or certificates that [Name026] claims to have given to [Name012] has been "totally corroborated" with "documentary evidence of a banking nature." The statement of the accused [Name026] was not corroborated by any evidentiary element other than his declaration. "How can the lady judges say," asks the appellant, "that all of [Name026]'s affirmations have been confirmed, when there are substantive contradictions regarding: a) the time of the agreement with Alcatel, whether before or after the tender (licitación); b) regarding the sums delivered: $370,000 in cash, first, then he changes it to BICSA certificates of deposit for $130,000 all at the presidency in January 2001, and many months later he invents two cash deliveries, one for $100,000 in October 2002 and another for $130,000 in September 2003, both at my in-laws' house; c) in that he affirmed in his declaration of October 8, 2004, that he had sent an undetermined sum, by an undetermined means, and at an undetermined time to the company Inversiones Dennise, only to later accept that he never did; d) If he said that I had dictated the ABA routing number for Inversiones Dennise, and then with a rich imagination for detail he says he copied it from my computer screen; e) If he dares to say that he kept cash of unknown origin in hiding places in his house for thousands of dollars, he who in all his transactions tries to put money to generate interest immediately; f) If there is no proof whatsoever of the central points of his declaration, such as the meeting in [...], his call to arrange a meeting with me, the false meeting at my house; g) If he says he opened the Saint George Bank account to send money to his daughter who is studying in the United States, and she had already finished her studies; h) If he contradicts himself, saying that at the meeting in [...] they did not discuss an amount, only a percentage because the volume involved was unknown, and says that the next day at the supposed meeting at my house, he told me the amount was between one and a half and two million dollars." The observations made by the experts of his defense, Mr. [Name030] and Mr. [Name031], regarding the inconsistencies in dates, transaction times, bank paperwork, client signatures, constitution and liquidation of investment certificates, cash transactions, even though they are recorded as arguments of the technical Defense in the judgment, are not analyzed, and they continue with the statements from the reports of the Sección de Delitos Económicos y Financieros of the O.I.J., which in turn depend on unverified statements from bank officials. Furthermore, the forensic experts themselves recognize the serious limitations of their reports in their own declarations, pointing out that they did not cross-check or verify the information in cases of inconsistencies in dates, transaction times, bank paperwork, client signatures, constitution and liquidation of investment certificates, as they relied entirely on what the banks told them, limitations that are not taken into account by the lady judges, which in itself constitutes a flaw in the reasoning (fundamentación) of the judgment, rendering it incomplete. Throughout the debate, a series of suspicious indications regarding the actions of Banco Cuscatlán was established, which, however, did not lead the Fiscalía to investigate whether money laundering laws were being violated; nor did the forensic experts bother to make inquiries in that regard, or at least to communicate them to SUGEF. Should it not draw attention that movements of more than fifteen million dollars entered the accounts of Servicios Notariales QC without those financial entities seeking greater justifications? Is it not strange that then those 'explanations', which served them to try to determine the Alcatel origin of various transactions through means that go against banking and financial experience regarding computer systems, 'cash validations', handling of cash in exchanges of certificates of deposit, transfers between local and foreign banks, exchanges between different securities of different members of the financial group, acceptance of signatures of those who do not have authority, etc., etc.? The forensic experts made use of documents in English, although they were not proficient in that language, and many of their conclusions—like those of the lady judges—are based on the statements of bankers, without a valid verification of their statements (cf. appeal, folios 172416 to 172431). D. Assessment of the unsworn statement of the confessed accused [Name026]. The majority opinion (voto de mayoría) accepts that [Name026]'s statement is not evidence; however, it accepts his statement without any evidence or indication supporting it in substantial points to be able to somehow relate [Name012] to the illicit act. The reasoning is illegitimate, violates the rules of logic, experience, and psychology, and is based on illegal evidence. It causes irreparable harm (gravamen irreparable) by illegitimately accepting as true the statement of a confessed accused, which is not evidence and whose veracity no other evidence corroborates. The Sala Constitucional itself noted that: "It is important to mention as a reference that the European Court of Human Rights [...] admitted the legitimacy of the crown witness or repentant witness [...], that its admissibility must be only as a source of circumstantial evidence (prueba indiciaria), that is, that the data or information it provides requires the backing of other means of proof. It becomes a means of investigation subject to confirmation, direct or indirect, of the data and circumstances that it has provided about the investigated facts" (Sala Constitucional, No. 12090 at 14:40 hrs. on July 31, 2009). "It is guilt that must be proven, not innocence," reiterates the complainant. What [Name026] states is that his reflection was that he might need help to fulfill his plan, not that he needed convincing; all the witnesses, including [Name026] himself, were unanimous that [Name012] never asked anything of any director or official of ICE with respect to the tender for the four hundred thousand GSM cellular lines, nor with respect to any purchase or contract. "And to top off the contradiction," says the appellant, "he seeks me out in case he needs help, does not ask me for it, and does not even inform me of the conditions they had supposedly asked him to fulfill." For the lady judges, the "conclusive" proof that they met on December 2 and 3, 2000, in [...] and at [Name012]'s house, is that the alleged participants were in the country (according to the entry and exit records of the country for [Name026], [Name015], [Name035], and [Name012]), a conclusion that does not derive from the premises: "With that reasoning," says the complainant, "it is proven that everyone who is in Costa Rica today met, if [Name026] says so." The lady judges fall into a "blind credibility" towards whatever [Name026] says, whether contradictory or not, whether there are at least indications to confirm it or not, whether in accordance with experience or not, whether it contradicts the reality of time or not, whether or not it determines, according to his statement, the location of people in the world: "...it is even more unjustified," he adds, "when the lady judges were eyewitnesses to [Name026]'s statements regarding unjustified income when he was Minister of Housing, and the other income related to other alleged crimes confessed by [Name026] and corroborated by the OIJ." The bank accounts in colones and other possible accounts of [Name026] in his name or his wife's name were not investigated because the Ministerio Público did not request it, nor were other possible crimes of [Name026] investigated, even though they were reported to the Ministerio Público, because the prosecutors did not request that they be investigated (see declaration of [Name036], pages 190 and 193 of the Judgment). The lady judges were aware of all this, but this did not affect his total credibility, proof against any contradiction or error in [Name026]'s statement. "One might argue to me that these were unjudged facts and therefore could not be used by the court because the principle of innocence would be broken. But then why is it argued against me that I did not prove a different nature for the alleged payments from [Name026]? Does the principle of innocence not apply when it is against me, but only for the confessed accused [Name026]?" Judge Camacho Morales, in contrast, demonstrates that in no case is there verification of a promise by the alleged corruptors, and the dates accepted by the lady judges in their majority opinion are not compatible with a congruent explanation of the tasks entrusted to [Name026]. Regarding the illegal opportunity criterion (criterio de oportunidad) granted to [Name026] with deceit to the judges, the lady judges, in a divided vote on the legality and propriety of the judicial approval of that criterion, denied that they had jurisdiction to hear it in the oral trial (debate oral). In this judgment, it is argued that [Name026] wanted to cooperate from the beginning, in his first statement in September 2004, without taking into account that in that statement, the facts he describes are totally contrary to those he accepts in May 2005, when he reaches an agreement for an abbreviated procedure (procedimiento abreviado) with the Ministerio Público, and which are practically identical to those included for the agreement of the opportunity criterion. The majority opinion points out that although [Name026] goes unpunished for his actions, this is not the result of their decision but of the legislative approval of the institute and the approval by other judges. That is not so, because the Trial Court (Tribunal de Juicio) had the responsibility to rule on the approval of the opportunity criterion, and they refused to do so. The majority naively believes that [Name026] cooperated motivated by supposed patriotic reasons, who was placed under house arrest and went unpunished because the Ministerio Público, instead of partially dispensing with the criminal prosecution, limiting itself to not accusing him on the issue of the four hundred thousand lines, totally dispensed with the prosecution, including other confessed crimes. The majority opinion says nothing about the refusal of the Ministerio Público to investigate other crimes confessed by [Name026] and verified in the accounting reports of the OIJ. Nor, in relation to the other crimes confessed by [Name026], does the majority opinion refer to the prior circumstances, nor does it do so in relation to the millions of sum that, with the arrangement of the opportunity criterion, remained in the possession of [Name026]. The tendency to favor [Name026] in everything has been clear. The majority relies on [Name026]'s statement to classify the conduct attributed to [Name012] as "instigation" (instigación), but neither [Name026]'s supposed words in [...], nor his alleged "thoughts" or "reflections" at his home, nor his presumed words at the invented meeting at [Name012]'s house, indicate either that [Name026] needed to be induced to do something he had already accepted in principle (that is, he had accepted or embraced it essentially) and that he had been repeatedly doing in other cases that they did not want to investigate, nor that [Name012] produced in him the will and resolution to do it: "There is no way to be able to qualify the acts of which [Name026] accuses me and the facts described in the accusation as instigation to aggravated corruption due to improper bribery (cohecho impropio), which makes my conduct atypical and determines a violation of the substantive law of the Penal Code, which demands a dismissal (sobreseimiento) or acquittal in my favor..." (cf. appeal, folios 172432 to 172451). E. Nature of the delivery of resources from [Name026] to the President. The majority opinion rejects [Name012]'s version regarding the nature of the resources that [Name026] gave to [Name012] and which the latter always accepted that the former gave him, and were paid in 2004, recording their payment to the Ministerio Público, with no argument other than [Name026]'s statement. There is an erroneous assessment of his testimony and it causes him irreparable harm (gravamen irreparable) that the statement of that confessed accused be taken as true, which is not evidence nor finds support in any other evidence. "In relation to the nature of the resources delivered by [Name026] to me, I have always admitted them—and they constitute the totality of what he claims to have delivered to me in his initial statement (September 30, 2004)—together with the cash he falsely initially says he gave me in late 2000 or early 2001 and later retracts and says he did not give me, the lady judges affirm that it is not a credit whose payment my lawyers recorded since 2004. And why do they assert it is not a credit? Because [Name026] affirms it is not one..." (cf. appeal, folios 172451 to 172452). F. A judgment based on illegitimate evidence. Bank evidence obtained without a court order in Panama (Evidence 588). The majority opinion exhaustively uses and relies on evidence 588, which is illegal and unconstitutional and is the basis for the alleged existence of the crime. Evidence 588 is a certified copy of the Judicial Assistance from the Republic of Panama sent via notes PGR-030-2004, dated September 10, 2004, and No. 316-DN-TALM-04 of September 6, 2004. Said evidence concerns a certified copy of a letter rogatory to Panama (dated September 10, 2004) in which the Fiscalía requested the Procuraduría General de la República to apply the "Central American Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama" for the collection of evidence in the investigation corresponding to the criminal case called "Caja-Fischel" (criminal file 04-005356-0042-PE). In said document, the Fiscalía requested the seizure and registration of information of all bank accounts and in all financial entities of the Panamanian banking system corresponding to the company Marchwood Holding. In the same manner, the Fiscalía requested the remittance of all financial movements and their respective supporting documents (credits and debits), including the checks that have been issued from that account, from its opening until the date, whether manager's checks or regular checks, together with the documents supporting said issuances, as well as the account opening file and all documents that have been presented to the bank by whoever is authorized on the account. In all this flow of information between the Ministerio Público and administrative authorities for obtaining evidence 588, the absence of the corresponding court order issued by the judge of guarantees (juez de garantías) of the present process to request the required information stands out; therefore, such request contains defects of legality and constitutionality, because said request was formulated and executed without the order of a judge. The Sala Constitucional interprets that documents containing financial information are protected by "banking secrecy" (secreto bancario), that such secrecy is among the situations protected by Article 24 of the Constitución Política, so that to carry out any judicial diligence, the authorities must respect the order and form provided by the Constitución Política (cf. Sala Constitucional, No. 578 at 10:45 a.m. on February 28, 1992). The constitutional guarantee is inalienable and applies to all inhabitants, including foreigners; it is not admissible that violations of fundamental rights (privacy and banking secrecy) abroad be asserted as legitimate in Costa Rica. Law No. 7425 on the registration, seizure, and examination of private documents and intervention of communications (Ley N° 7425) was also disregarded, because from its Articles 1, 2, and 3, it follows that a) only courts of justice can order the seizure and registration of private documents when it is absolutely indispensable for the clarification of criminal matters submitted to their knowledge; b) only the criminal judge of the preparatory procedure or judge of guarantees, during the investigation, can order the seizure and registration of private documents, whether ex officio or at the request of the Ministerio Público, provided they may serve as evidence of the commission of a criminal conduct; and c) the order for seizure, registration, or examination must be carried out, under penalty of nullity, by means of a reasoned order (auto fundado) in which the documents on which the measure of registration, seizure, or examination will be executed, the name of the person who holds them, and the place where they are located are individualized, if possible, regardless of whether this information is inside or outside the country. In this case, there is an absolute absence of the referenced jurisdictional order authorizing the seizure of private financial documents of Marchwood Holdings and referring to all the information requested from the authorities of Panama and which was accepted as evidence 588. But furthermore, the information established in the so-called evidence 588, as a certified copy that it is, comes from another criminal case called "Caja-Fischel," and if evidence 618 is analyzed, which is the Expert Report 428-DEF-443-05.05 with its 19 annexes, where we can easily understand that said report makes references to money transfers from a company named Servicios Notariales, unrelated to the "Caja-Fischel" case, to Marchwood Holding, which was being investigated in that case. In this way, the Ministerio Público learns of the existence of the company Servicios Notariales QC, that is, the spurious evidence 588 comes from a source that is not independent or prior; that is, it comes from another case called "Caja-Fischel." This illegal information arrives from Panama at the beginning of September 2004, and specifically at the Fiscalía by September 10, 2004, as recorded on folio 895 of the judgment. At that time, information was only requested about Marchwood Holdings, not about Servicios Notariales QC, but it is from September 10, 2004, onward that the Ministerio Público learns of the existence of a company called Servicios Notariales QC, and it is there that it is decided to begin an independent line of investigation, which ultimately became the present criminal case. Therefore, the origin of the present criminal case is not independent of the investigation of the "Caja-Fischel" case. The present criminal case has its genesis in evidence 588, documentation that cannot be considered as evidence because it was processed in violation of Article 24 of the Constitución Política and in violation of the theory of the independent source of evidence, but the lady judges of the majority opinion try unsuccessfully to justify the independence of evidence 588 by referring (cf. pages 933 and following of the judgment) to the fact that there are other means of evidence that demonstrate the legality of the origin of the present process, such as evidence 592.9 (written press monitoring from December 9 to 31, 2004), evidence 682 (publications appearing in nationally circulated newspapers, including Diario Extra from 2004), but said material only refers to a house in [...] and to [Name021], and the other to Taiwan, but the fact of the matter is that before that date (September 10, 2004), the Ministerio Público did not know of the existence of the company Servicios Notariales QC. If the hypothetical suppression of evidence 588 is performed, there are no other independent and prior evidentiary elements that give the Ministerio Público knowledge of the existence of the Company Servicios Notariales QC, to originate the present criminal process, in accordance with the jurisprudence of the Sala Constitucional (he specifically cites judgment No. 4636 at 4:12 p.m. on August 12, 1997). However, the majority lady judges attempt to "sanctify" the illegality of evidence 588 with a note sent long after the illegitimate obtaining of said probative documentation: "Knowing the illegality of evidence 588 and of the consequences derived from its illegitimate obtaining, the Ministerio Público, years after having obtained that information in a spurious manner, Mr. [Name032], by virtue of his negotiation with the Ministerio Público so that this body would request the minimum sentence for him during the trial of the Caja-Fischel case, sends a note where he purports to authorize the obtaining, use, and utilization of all the banking information obtained in the Republic of Panama corresponding to the company Marchwood Holding retroactively to the moment prior to September 10, 2004, the date on which the Ministerio Público learns of the existence of Servicios Notariales QC." In the majority opinion, starting from page 896, the lady judges validate and base the conviction on said note signed by [Name032] and which was introduced during the trial (debate) of the present case as evidence 759 (note signed by [Name032] dated May 17, 2010). That note is nothing more than a tacit acceptance of the Fiscalía's illegal action, because otherwise they would never have rushed, years later, to try to validate an absolute defect that was consummated at the moment of the illegal obtaining. Although a distinction must be made between obtaining and incorporation of evidence, the majority's thesis that illegally obtained evidence can be legally incorporated is foolish or absurd, because since the judgment of Magistrate Piza No. 1739-92, it has been understood that evidence only has value if it was obtained by a lawful means. Furthermore, the powers (type of power of attorney) of Mr. [Name032] in relation to Marchwood Holding were never proven: "That is, years later, a certain man comes along, illegally consenting to something, where we do not know if he has the legal powers to do so...", because there is not a single certification of legal capacity legally issued in the entire file that states that for the date of issuance of the note, being May 17, 2010, Mr. [Name032] had powers to consent retroactively and illegally to violations of the banking secrecy of the company Marchwood Holding; rather, the lady judges believed only the word of Mr. [Name032]; they did not even ask him for accreditation of his powers as legal representative of Marchwood Holding. The dissenting opinion (voto de minoría) of Judge Camacho Morales, in contrast, exposes in a serious and well-founded manner why the majority did not observe Article 181 of the Código Procesal Penal for relying on illegitimate evidence, also violating Articles 363, 142, and 184 of that same legal text. Judge Camacho Morales concludes that evidence 588 is illegitimate for the same reasons that the court—unanimously—previously considered illegitimate other evidence also brought from Panama in this trial, by resolution at 8:00 a.m. on May 14, 2010 (cf. volume XXVII, folios 13352 to 13408), for having bypassed the constitutional and legal requirement of a court order. The Ministerio Público alleged that evidence 588 is indeed valid because the consent of the legal representative of the company whose banking relationships in Panama were brought to the trial was given, and that was accepted by the lady judges. The Sala Tercera de la Corte, by resolution No. 499-2011 at 11:45 a.m. on May 11, 2011—in the "Caja-Fischel" case—ruled on that same evidence known as "588", declaring it ineffective, as well as the other elements of evidence directly derived from it. In that "Caja-Fischel" trial, to which judgment No. 499-2011 refers, they also tried to give validity to the illegitimate evidence from Panama, the same that in the present case corresponds to number 588, with the same trick of resorting to an approval from [Name032], convalidation that the majority of the Sala Tercera also does not admit in vote No. 499-2011, but considers absolutely illegal. G. Bank evidence delivered without a court order. The majority opinion is based on banking documentation illegally introduced into the trial, because it relates to the lack of express judicial authorization to the financial entities to lift banking secrecy (secreto bancario), even though prosecutors or judicial police officers were authorized for the seizure of the documentation, according to the criteria expressed by the Sala Constitucional in its judgment No. 578-92 at 10:45 a.m. on February 28, 1992, and by the Comisión de Asuntos Penales of the Corte Suprema de Justicia. The complainant details nineteen resolutions from the Juzgado Penal de Hacienda of the Second Judicial Circuit of San José and maintains that the bank documents that were seized based on them must be declared ineffective, because none authorized the banking entity to lift the secrecy of the private documentation (cf. appeal, folios 172473 to 172486). H. Bank evidence delivered outside the judicially established timeframe. The majority opinion is based on illegitimately obtained, seized, and introduced evidence, gathered outside the timeframe determined in the judicial authorization, in the cases of the Grupo Financiero Interfín and Acobo Sociedad de Fondos de Inversión, which has been complained of since the preliminary hearing, at the beginning of the trial, and in the conclusions. [Name012] reproaches that his right to privacy was injured by violating banking 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, by delegation made by the Ministerio Público, carried out the seizure after the deadline ordered by the judge of guarantees for carrying out the diligence had expired, which constitutes a genuine violation of due process (cf. appeal, folios 172487 to 172490). a. Grupo Financiero Interfín.

In this case, the criminal judge expressly ordered that the proceeding be carried out between October 8 and 15, 2004; however, it was not carried out until October 27, making the action illegitimate and the evidence thus obtained ineffective (cf. folios 172491 to 172492). b. Acobo Sociedad de Fondos de Inversión. The Criminal Court expressly ordered that the proceeding be carried out between October 5 and 15, 2004; however, it was not carried out until October 19, making the action illegitimate and the evidence thus obtained ineffective (cf. folios 172492 to 172496). Section Three.- Disagreement with the legal reasoning. A. Opportunity criterion (Criterio de oportunidad). The majority vote is based on illegal evidence, specifically on the statement, as a supposed confessed cooperating accused, of [Name026], protected by an opportunity criterion (criterio de oportunidad) illegally requested and approved to secure his impunity, and on de facto actions by the Public Prosecutor's Office (Ministerio Público) that, without judicial approval, grant him illegitimate impunity for other crimes confessed by him. He requests that the statement given by [Name026] during the trial be annulled, and since there is no other evidence against him for any crime, he requests that the conviction be annulled and the defect be corrected by resolving the matter in accordance with the applicable law, acquitting him of the crime charged. In the video, it can be seen that it is [Name026]'s defense counsel who dictates the answers he must give in the trial. The lady judges of the majority vote, in a vote prior to the judgment, had already declared themselves incompetent to resolve the protest for defective procedural activity that the defense raised against the flaws in the processing and application of the opportunity criterion (criterio de oportunidad) [referring to the vote at 1:30 p.m. on September 2, 2010]. Conversely, Judge Camacho Morales states that the legality of the application of the principle of opportunity is indeed reviewable and that in this matter it was granted through a resolution that completely lacks reasoning, therefore it cannot have any legal effect. [Name026] confessed to many crimes, corroborated by the DEF of the OIJ, which were arbitrarily left uninvestigated, meaning there is no proportionality in the application of the opportunity criterion (criterio de oportunidad). When the Public Prosecutor's Office (Ministerio Público) requested the criminal judge to approve the opportunity criterion (criterio de oportunidad), it concealed decisive information for establishing lesser culpability and proportionality in its application, because the request did not mention other conduct that could be criminal and was confessed by [Name026]. Judge Camacho Morales points out the impropriety of the monetary arrangements made by the Public Ethics Prosecutor's Office (procuraduría de la ética Pública), since [Name026] was legitimized to maintain possession of sums in the millions of dollars, and it fell short in its estimates because it did not take into account other income that [Name026] confessed, but which the Public Prosecutor's Office (Ministerio Público) refused to investigate, so the State itself has legitimized him to keep more than one and a half million dollars (cf. appeal, folios 172497 to 172515). B. Statute of limitations (Prescripción). The majority vote denies that the statute of limitations (prescripción) for a penalty of up to three years has run, as they seek to apply to him a provision of a law that was approved after his initial investigative statement (indagatoria), which had already granted him a reduction of the statute of limitations period by half. In the resolution at 8:00 a.m. on May 14, 2010, the court ordered, unanimously, to reserve for resolution in the judgment the ruling on the applicability of Article 62 of Law No. 8422 [“Ley contra la corrupción y el enriquecimiento ilícito en la función pública”, effective from its publication in La Gaceta No. 212 on October 29, 2004]. For [Name012], the first formal accusation occurred with the statement of October 15, 2004. Procedural acts are governed by the law in force at the time they are carried out; it is not possible to apply a new law retroactively to a procedural act carried out during the validity of the previous law [in this regard, he cites judgments of the Constitutional Chamber (Sala Constitucional) No. 4397-99 at 4:06 p.m. on June 8, 1999, and of the Criminal Cassation Court (Tribunal de Casación Penal), No. 132 at 10:30 a.m. on February 23, 2006]. He requests that the criminal action be declared time-barred (prescrita) and a dismissal (sobreseimiento) be ordered in his favor (cf. appeal, folios 172515 to 172519). C. Absence of a natural judge (Juez natural). His constitutional right to be judged by a natural judge (juez natural) was disregarded. This is so because to form the court, Judge Rosaura García was ordered to be called from the Judicial School (Escuela Judicial), who assumed the presidency of the court, after which her return to the Judicial School (Escuela Judicial) was agreed. This shows that she was brought in ex professo solely to resolve this case, and despite having returned to the Judicial School (Escuela Judicial), she subsequently issued various resolutions, instead of her substitute doing so, as if the case were "hers." In contrast, they have not brought Judge Camacho Morales to issue those resolutions subsequent to the judgment (to resolve requests for addition and clarification to the judgment); rather, they have resolved them with his substitute, which denotes the special treatment given to Judge García to judge him (cf. appeal, folios 172520 to 172523). D. Impediment to exercising his material defense (defensa material). During the trial, he was prevented from exercising his constitutional right to material defense (defensa material), which constitutes a violation of due process that renders the judgment null and void. This is because the court prevented him from personally questioning the witness or expert [Name033], offered by the Procuraduría General de la República. The appellant indicates that he holds a doctorate in Economics, is a Professor at the University of Costa Rica in the Faculty of Economic Sciences, has also been a professor at the University of California, Berkeley, at the Universidad Autónoma de Centro América, at George Washington University in the District of Columbia, and at Universidad Carlos III in Madrid, and that he is a practicing attorney, so he and his defenders preferred that, being an expert on the subject, he conduct the examination of the expert. However, the trial court did not allow it and his defense made a cassation reservation (cf. appeal, folios 172524 to 172526). E. Violations of due process, non-observance of the Political Constitution (Constitución Política) and International Human Rights Treaties signed by Costa Rica. The judgment is based on torture and acts that have violated due process and his opportunity for defense. Constitutional rights to defense, to a natural judge (juez natural), not to be punished without a final judgment (sentencia firme), not to be punished without demonstration of guilt, and not to be subjected to cruel or degrading treatment have been violated. The violation of due process and his rights, the media and political trial, and the continued psychological torture not only subconsciously conditioned the Court toward the sole path of convicting him, but also give rise to a process "not arranged according to Law," which is his constitutional guarantee and that of every Costa Rican citizen. There is an irreparable harm from the judgment that arises from the subconscious of the lady judges and from a process not governed by due process, so he requests that the judgment be annulled and his acquittal be declared. a. Fair trial, judge, and its circumstances. In this subsection, he says that there were not only errors during the trial and in the majority vote of the judgment, but also absolute defects that occurred throughout this entire process, before the trial, which have not been corrected or validated, as they are absolute. The Prosecutor's Office and a sector of the press decided to persuade erga omnes of his guilt, to condition and induce the activity of the judges toward a conviction. His arrest occurred under conditions of unnecessary scorn and affront, and he was denied a fair trial. The lady judges, prior to reading the operative part of the judgment, in the session of April 27, 2011, said that they do not share the "...traditional notion of the judge who serves as the mouth of the law." That judges be the mouth of the law, according to Montesquieu, is the only way for trials to be conducted in compliance with the principle of legality of Articles 39 and 41 of the Political Constitution (Constitución Política), according to which justice must be "prompt, fulfilled, and in strict conformity with the laws." In this way, the judge is often the mouth of some media outlets, a reflection of public opinion, demagoguery (cf. folios 172527 to 172532). b. Media trial. This case is a paradigm of the media or parallel trial that compromises the independence and impartiality of the judge, projecting a preconceived "solution" to the conflict (cf. folios 172532 to 172540). c. Torture. His human rights to dignity, not to be tortured, to protect his honor and image, to his presumption of innocence, not to be exhibited as guilty, and to due process have been violated. The conviction arose under totally irreparable conditions due to the violations committed against his human rights, so he requests that the judgment be annulled and he be declared acquitted. He was subjected to cruel and degrading treatment from his arrival at the Juan Santamaría International Airport, according to the facts described in Section F and the evidence offered to corroborate it (cf. folios 172540 to 172545). d. Constitutional violations, violations of international human rights instruments, and criminal norms. It has been impossible to receive a fair trial since he voluntarily returned to the country on October 15, 2004, due to the senseless duration that turns the investigation into punishment, with the arbitrary publicity that determines the interested media condemnation, with the use of false evidence and the dungeon (calabozo), with the illegal detention, with the torture and cruel treatment of exhibition and scorn, with the imprisonment in the isolation of the dungeon (calabozo) for consecutive months, with the lack of objectivity of the Public Prosecutor's Office (Ministerio Público) and its deal with a principal perpetrator; the guarantees of the Political Constitution (Constitución Política), international human rights instruments, and the laws of the Republic have been breached. It is incumbent upon the Sentence Appeals Court (Tribunal de Apelación de Sentencia) to repair these violations by declaring them, annulling the appealed judgment, and ordering his acquittal. Scorn, contempt, disrepute fell upon him, he lost position and freedom, and lived the bitterness of his family's suffering (cf. folios 172545 to 172566). F. Facts prior to the trial that have broken due process due to non-application or erroneous application of constitutional and legal norms that guarantee the presumption of innocence and the right to defense. In this subsection, he lists a series of facts, prior to the trial (referring to the preliminary investigation stage), through which the constitutional, international, and national regulations indicated in the previous point were violated (cf. folios 172566 to 172666). This is a breakdown of 129 "facts" (as the appellant calls them, although some of these paragraphs, in addition to facts, contain analysis and reflections on the circumstances that preceded the trial stage and the issuance of the judgment), as well as an interpretation of the actions or omissions, possible motives or eagerness of some of the protagonists and characters of that historical moment, which he describes, lists, and records under the following titles: a) Unjustified delay in the investigation (facts no. 1 to 14, cf. folios 172568 to 172573); b) Violations of the secrecy of the preliminary procedure and the communicability of the Public Prosecutor's Office (Ministerio Público) with certain media outlets (facts no. 15 to 17, cf. folios 172573 to 172578); c) Illegal detention (facts no. 18 to 25, cf. folios 172579 to 172581); d) Denial of the right to defense (facts no. 26 to 39, cf. folios 172581 to 172603); e) Degrading public exhibition, 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 (facts no. 54 to 69, cf. folios 172610 to 172618); g) The confessed accused [Name026]: from principal perpetrator to cooperating accused. Undue actions by the Public Prosecutor's Office (Ministerio Público) to try to grant him impunity (facts no. 70 to 79, folios 172618 to 172642); h) Affront to the sovereignty of the judge and media trial (facts no. 80 to 99, cf. folios 172642 to 172653); i) Politization of the case (facts no. 100 to 129, cf. folios 172653 to 172666). Since the judgment was based on a process conducted unconstitutionally, with non-observance of procedural norms that protect the presumption of innocence, the secrecy of the summary, the natural judge (juez natural), the right to defense, violation of personal freedom, disrespect for human rights, and torture, it is vitiated by absolute defects and must be annulled, so that, resolving the matter according to the applicable law, the acquittal of the appellant [Name012] is declared. Section Four.- Lack of reasonableness, balance, and proportionality in the determination of the penalty. The majority vote does not provide reasons for determining the penalty at its maximum extreme against [Name012]; it is contradictory with the determination made unanimously in the allocation of responsibilities in civil actions, which violates the rules of sound criticism and causes irreparable harm, because lacking reasoning, the imposed penalty becomes arbitrary. In the event that—despite the serious objections that have been raised—the conviction against him is confirmed, he requests that the penalty be adjusted to its minimum extreme and the benefit of conditional execution of the sentence (ejecución condicional) be granted, since the penalty imposed by the majority is evidently disproportionate, clearly exaggerated and unjust. The lady judges only reproach him for his condition as a former president, but do not attribute to him the control of the act (dominio del hecho); they only go so far as to classify him as an instigator, given that the Prosecutor's Office itself indicated in its conclusions that [Name026] was the perpetrator with full control of the act. Positive factors for him were not taken into account, such as his age, his behavior before and after the alleged crime and throughout the entire process, all the humiliation suffered, his submission to the Administration of Justice, which is not the same as refusing to exercise his right to defense: "The lady judges, in short, do not explain why I deserve the maximum extreme of the penalty and not the minimum, nor why they deny the benefit of conditional execution (ejecución condicional) when all the objective and subjective conditions for its application are present: I am a first-time offender, I have a family, I work as a professor at the University of Costa Rica despite being retired" (cf. folios 172666 to 172670). Section Five.- Petition. Dr. [Name012] orders the claims of his appeal in the following manner:

"1) That ALL and each one of the requests raised in this appeal of judgment be declared GRANTED" "2) That the annulment of the APPEALED judgment that was handed down against me be declared, and based on the evaluation of the evidence received at trial and that requested for this appeal, I be acquitted of all penalty and responsibility by virtue of the fact that, as determined in Sections Three D and E, due to the violations of due process that involve violations of constitutional substantive law, international human rights treaties applicable in Costa Rica, and criminal law, the lady judges were subconsciously determined to incur all the violations of substantive and procedural laws during the process that were indicated in those sections. In this way, the violations of the substantive laws indicated expressly in Sections One, Two, Three, and Four can be remedied by the Court hearing this appeal of judgment, declaring my acquittal, given the non-existence of any evidence whatsoever that proves the acts accused against me." "3) That, subsidiarily to the second request, I be acquitted or dismissed for the reasons adduced in Section Two F as proposed by Judge Jorge Camacho and due to the illegality of the evidence on which the accusation and the judgment of the lady judges in their majority vote are based. That the illegality of evidence 588 be thus declared, with which 'it is concluded that it is not possible to consider any fact of the accusation as proven, because all the evidence gathered in the process is illicit evidence, as the entirety of the investigation derives from one, or rather, from several constitutional violations in the obtaining of the evidence that guided the investigation from its genesis, and as there is no possibility of excluding the application of the fruit of the poisonous tree doctrine, such as the independent source of the evidence or the inevitable discovery thereof, nor any other exception that excludes the application of the rule of exclusion of illicit evidence, according to which, evidence obtained directly from a constitutional violation must be excluded from the process as well as all that which derives indirectly from the illicit evidence, which in this process is the entirety.' (vote of Judge Camacho page 1943 of the judgment, second part)" "4) That, subsidiarily to the third request, I be acquitted or dismissed for the reasons adduced in Section Three A, given that the only evidence against me originates from an illegitimate opportunity criterion (criterio de oportunidad). That the resolution of Judge Jorge Camacho on the opportunity criterion (criterio de oportunidad) be thus accepted, which, as far as it concerns me, concludes: 'Thus, for the reasons stated in relation to the opportunity criterion (criterio de oportunidad), the co-accused [Name012] must also be acquitted of all penalty and responsibility for his participation as an instigator of the crime of aggravated corruption in the modality of improper bribery in relation to [Name026].' (Vote of Judge Jorge Camacho, pages 1,996, 1,997 of the judgment, second part)." "5) That, subsidiarily to request four, the annulment of the judgment against me be declared and I be acquitted because, even if the statement of [Name026] were accepted as legal—which we reiterate IS NOT EVIDENCE—and the opportunity criterion (criterio de oportunidad) is illegitimate, the sole support of the majority vote against me would be that statement of [Name026], and there is a total absence of any evidence that supports his statement, as has been explained, and based on the claimed legal violations" "6) That, subsidiarily to request five, the conviction handed down against me in the appealed judgment be annulled and my innocence be declared, since [Name026] acknowledges that upon the alleged proposal by ALCATEL, he 'ACCEPTS IT IN PRINCIPLE,' so that in that same place, Restaurant [...], the crime would have already been CONSUMMATED, this before supposedly having met with me at my house, which I repeat did not happen. That in accordance with this, my acquittal AS A SUPPOSED INSTIGATOR be declared, given that ONE CANNOT INSTIGATE someone who is already DETERMINED." "7) That, subsidiarily, if it is not considered appropriate to declare my acquittal, the trial be totally annulled and a retrial be ordered, excluding all illegal evidence, the facts erroneously considered as proven, and the mistaken legal reasonings." "8) That the minority vote of Judge Camacho be accepted and the exceptions of statute of limitations (prescripción) in my favor be accepted, and in the event of any reclassification of the crime, that statute of limitations (prescripción) be applied to me." "9) That, subsidiarily, and if none of Judge Camacho's conclusions regarding evidence 588 and the opportunity criterion (criterio de oportunidad) are accepted, it be determined that the statement of the confessed accused [Name026] does not determine any proven fact that signifies my participation as an instigator or in any other way in the crime of [Name026] of Aggravated corruption in the modality of Improper Bribery. And that the statute of limitations (prescripción) be applied to me." "10) That, subsidiarily to request number nine, the penalty imposed against me, illegally set at the maximum extreme of the punitive norm, be adjusted, when it has become evident that not only is the supposed conduct attributed to me much less reprehensible than that of the perpetrator ([Name026]), who has been granted absolute impunity, but also the attribution of the criminal figure of instigation is atypical when it is evident that [Name026] from the very moment of the supposed offer states that he 'accepted' it and that only later, thinking afterwards, at home, about the implications of the offer he had accepted, decides to consult me, in case it became complicated, which never happened, such that if [Name026] is unpunished, I did not determine him and even less helped him, the imposed penalty results disproportionate, I reiterate, at its maximum extreme. That in the event, inconceivable to me, that I am convicted, it be done at the minimum extreme of the penalty and I be granted the benefit of its conditional execution (ejecución condicional)." Finally, still in relation to Dr. [Name012], it is necessary to add that at folios 173372 and 173373 of volume XL, there is a letter from him addressed to the President of the Supreme Court of Justice, Dr. Luis Paulino Mora Mora, in which the appellant requests that he guarantee that he will be judged by the natural judge (juez natural), through a public draw.

II.- THE APPEAL OF DR. [Name012] IS RESOLVED.- On October 15, 2004, being Secretary General of the Organization of American States and enjoying the prerogatives inherent to that high office, Dr. [Name012], of his own free will, returned to our country to submit himself to the “natural judge” (juez natural), to face the facts of this criminal case for which he was being investigated, to collaborate with the investigation of the real truth and thereby seek to make it clear that he is innocent, as he himself explained to this chamber during the oral hearing held between November 5 and 7, 2012 (cf. audiovisual record on DVD, files c000012110515000.vgz and c0000121105160000.vgz, from 15:47:00 to 16:47:29). During this process, Mr. [Name012] rejected all the charges brought against him, maintaining that the facts attributed to him by the Public Prosecutor's Office (Ministerio Público) are not true. In the exercise of his right to material defense (defensa material)—which every human being must be recognized and guaranteed with equality—Mr. [Name012] explained that the money he received from [Name026] was related to a simple loan that the latter made to him and that he has already repaid to him through judicial deposits. After having comprehensively examined the conviction handed down against him, it is clear to the judges subscribing to this vote that the Public Prosecutor's Office (Ministerio Público) could not prove that Dr. [Name012] had carried out the conduct attributed to him in the accusation, nor that the defense he gave to justify his conduct was false. The conviction handed down by the majority of the trial court is unsustainable from a formal and substantial point of view, due to its notorious lack of reasoning and of criminal action. Our current Political Constitution (Constitución Política), in force since 1949, guarantees that no one shall be made to suffer a criminal penalty except through the necessary demonstration of their guilt (Article 39 of the Political Constitution (Constitución Política)). In accordance with the laws of the Republic, since the guilt of Dr. [Name012] has not been proven, since his material defense (defensa material) has not been refuted, the presumption of innocence that our Political Constitution (Constitución Política) and international human rights instruments guarantee to every accused person remains intact, particularly Article 11, paragraph 1, of the Universal Declaration of Human Rights (UN General Assembly of December 10, 1948); Article 26, first paragraph, of the American Declaration of the Rights and Duties of Man (Ninth International American Conference of May 5, 1948); Article 14, paragraph 1, of the International Covenant on Civil and Political Rights (approved by Law No. 4229 of December 11, 1968); and Article 8, paragraph 2, of the American Convention on Human Rights (known as the Pact of San José, approved by Law No. 4534 of February 23, 1970), norms that are of immediate and direct application to this matter and that even have authority superior to the laws, according to Article 7 of our Political Constitution (Constitución Política). Apart from alleging his innocence, Mr. [Name012], also in the legitimate exercise of his material defense (defensa material), personally filed the appeals against the conviction described in the preceding Recital (Considerando) (I) of this resolution, in which he has denounced a large number of errors of form and substance, some relating to the judgment, others to earlier stages of the process. From the entire set of issues proposed by Dr. [Name012] for the comprehensive examination of the conviction handed down by the majority of the trial court, it is apparent that there certainly are some defects that determine the nullity of that majority decision (whether these defects are considered independently or jointly). These defects, which by themselves imply the nullity of everything resolved, refer to the determination of the fact considered as proven (A); and that the criminal action was extinguished because the statute of limitations (prescripción) has run (B), as explained below. A) Defects in the process of determining the fact considered as proven: In the first place, errors of form are observed in the process followed for the determination of the fact considered as proven, because this was essentially derived from illegitimate evidence and because the analysis and assessment of the evidence violated the rules of sound criticism, for which reason the judgment becomes lacking in reasonable justification, a defect that violates Article 39 of the Political Constitution (Constitución Política), according to which every criminal conviction is conditioned upon a necessary demonstration of guilt. A.1.- Spurious evidence (Prueba espuria). Evidence that has been unlawfully obtained cannot be lawfully incorporated into the process, according to the rule set forth in the first paragraph of Article 181 of the Code of Criminal Procedure (Código Procesal Penal), which clearly states: “Evidentiary elements will only have value if they have been obtained by a lawful means and incorporated into the procedure in accordance with the provisions of this Code.” According to Article 180 of that same legal text, “The Public Prosecutor's Office (Ministerio Público) and the courts have the duty to seek, by themselves, the ascertainment of the truth through the permitted means of proof...”, which must be understood in light of the general principle set forth in Article 175 of that same legal body regarding defective procedural activity:

«Acts carried out in non-observance of the forms and conditions provided for in the Constitution, in the International or Community Law in force in Costa Rica, and in this Code may not be assessed to support a judicial decision nor used as presuppositions thereof, unless the defect has been cured, in accordance with the norms that regulate the correction of judicial actions» Our Constitutional Chamber (Sala Constitucional) extensively developed the general right to legality, stating that:

«Although the principle of legality and the corresponding right of all persons to legality—and, of course, above all, to constitutional legality and legitimacy—seem to refer more to matters of substance than procedure, they nevertheless have important repercussions on due process, even in its strictly procedural sense.» «In the most general terms, the principle of legality in the rule of law postulates a special form of binding of public authorities or institutions to the legal order, based on its basic definition according to which every public authority or institution only exists and can only act to the extent that it is empowered to do so by the same legal order, and normally by express text—for public authorities and institutions, only that which is constitutionally and legally authorized in express form is permitted, and everything that is not authorized to them is forbidden—; as well as its two most important corollaries, still within a general order: the principle of minimum regulation, which has special requirements in procedural matters, and that of legal reserve, which in this field is almost absolute.» In our Political Constitution, the general principle of legality is enshrined in Article 11, and results, moreover, from the context of this article with Article 28, which embodies the general principle of freedom—for private individuals—and guarantees the reserve of law to regulate it, with Article 121, especially insofar as it attributes to the Legislative Assembly exclusive powers to legislate (subsections 1, 4, and 17), to create 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 cannot be delegated nor, therefore, shared with any other power, organ, or entity (Article 9), and which generate even more explicit consequences such as those set forth in the General Law of Public Administration, mainly in its Articles 5 and 7—which define the normative hierarchies—, 11—which enshrines the principle of legality and its corollary of minimum regulation—, 19, and 59.1—which reaffirm the principle of the reserve of law for the regime of fundamental rights and for the creation of public powers with external effect. Bear in mind, likewise, that in Costa Rica such reserve of law is confined to the formal law emanating from the legislative organ, as any delegation among public powers is constitutionally prohibited (Art. 9), thus making acts with the force of law unthinkable, at least in normal situations.» «It is by virtue of the presence of all these elements of the principle of legality, that practically all procedural matters are reserved to formal law, that is, to norms emanating from the legislative organ and through the procedures for the formation of laws, with the total exclusion of autonomous regulations and the almost total exclusion of executive regulations of the laws themselves; as well as that procedural law must be sufficient to discipline the exercise of the jurisdictional function and the activity of the parties before it, in such a way that no significant gaps remain to be filled regulationarily or subjectively; and, finally, that the requirements of procedural law must have guaranteed efficacy, material and formal, to the point that in this matter violations of mere legality become, by virtue of the principle, automatically violations of due process, therefore of constitutional rank.» (underlining supplied, Constitutional Chamber, No. 1739-92 of 11:45 a.m. on July 1, 1992).

However, the facts that the majority of the trial court has held as proven were derived essentially from two unsuitable sources: on one hand, they were derived from illegitimate evidence—evidence that was unlawfully obtained—, specifically from the so-called "evidence 588" (documentary). On the other hand, the facts were also derived from the testimony of the accused [Name026], but this was erroneously analyzed and weighed by the trial court. The erroneous consideration of these two sources of knowledge invalidates the determination of the fact that was held as proven (since, moreover, there are no other distinct, legitimate, and suitable evidentiary elements to derive the existence of the accused fact), as explained below. a.- The unlawfulness of "evidence 588" that gave rise to the case called «Caja-Fischel» and to the present matter. Documentary evidence No. 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 addressed to the National Director of Execution of Treaties of Mutual Legal Assistance and International Cooperation of the Ministry of Government and Justice of the Republic of Panama. It contains banking information of the Panamanian company Marchwood Holdings and was obtained without a court order (therefore, it is in the same situation as other evidence that was brought into the process under identical circumstances and which the trial court itself confirmed to be unlawful evidence, by means of a resolution at 8:00 a.m. on May 14, 2010, cf. Volume XXVII, folios 13352 to 13408 verso, rejecting the Public Prosecutor's Office's request to declare that other evidence lawful and to have it admitted to be presented in the debate, after having been excluded by the judge of the intermediate stage). Evidence No. 588 is essential in this matter because it was what allowed the Public Prosecutor's Office to learn of the existence of Servicios Notariales Q.C.S.A. and, based on it, to request the lifting of bank secrecy in relation to said company in the National Banking System, which involves all the evidence obtained in relation to Servicios Notariales Q.C.S.A. through Banco Cuscatlán de Costa Rica, through Cuscatlán International Bank, or through Grupo Cuscatlán, and in general all the evidentiary activity that has its origin in the constitutional violation related to evidence No. 588. The defense of the accused agrees that there is no independent source prior to the constitutional violation from which the evidence could have been obtained and that it could also not have been inevitably discovered, so there is no possibility of excepting the exclusionary rule for unlawful evidence. In contrast, the Public Prosecutor's Office considers that evidence No. 588 is lawful based on the consent of [Name032] for its use. The majority of the trial court considered that evidence 588 is lawful and dedicates a large part of Considerando II of the judgment to justifying this criterion (in the section titled «Oppositions to evidence No. 588 and all the banking documentation obtained from the 'Caja-Fischel' case brought to this process and derived from the cited evidence»), noting that in any case the same data derive from the declaration of [Name032] (whom they consider the sole holder of the right to privacy of that banking information, who has consented to its use), this on the basis of jurisprudential criteria from the Supreme Court of the United States of America (cf. judgment, pages 889 to 952). On the contrary, the dissenting vote of Judge Camacho Morales precisely begins with the analysis and assessment of evidence 588, which he considers to have been obtained unlawfully and cannot be used to support the judgment, because it was obtained without a reasoned order from a judge (cf. judgment, dissenting vote, pages 1903 to 1943). He explains that the consent of the right holder must be prior to the fact, according to the doctrine of Professor Francisco Castillo Gonzáles and the jurisprudence of the Third Chamber (votes No. 111 of 8:40 a.m. on March 26, 1993, and No. 604-2008 of 12:10 p.m. on May 23, 2008) and of the Criminal Cassation Court (No. 308 of 5:00 p.m. on April 7, 2008), and warns that despite a certain vote from the same Chamber seeming to contradict this thesis and which the Public Prosecutor's Office invokes in its favor, it is not a case that faithfully reflects the dominant criterion (specifically vote No. 232 of 5:00 p.m. on March 11, 2011, which was issued by substitute judges). He also specifies that the curing of that defect through the subsequent consent of [Name032] is not possible:

«In the present matter, it is evident that the consent of [Name032] is subsequent, and not prior, to the violation of the constitutional right to privacy, since approximately six years after the evidence was obtained unlawfully, due to the absence of a judge's order, as this Court resolved in a resolution at 8:00 a.m. on March 14, 2010, the Public Prosecutor's Office, knowing this Court's criterion, approached the supposed legal representative of the offended company (Marchwood Holding), Mr. [Name032], and asked him to consent that the evidence illegally obtained in Panama, concerning his represented company, could be used in this process and to validate with his consent the obtaining of such evidence and the use given to it in procedural stages prior to the debate, to which Mr. [Name032] agreed by signing the document incorporated as documentary evidence No. 759, dated May 17, 2010, three days after the aforementioned resolution of this Court. Said consent does not meet the minimum requirements to operate as a cause for justification and eliminate the criminal nature of the Public Prosecutor's Office's intervention. Were said evidence to be admitted, it would be allowing the State to take advantage of actions by its officials—which could be criminal—to judge and criminally convict citizens, with which it loses all ethical legitimacy to impose a sanction.» (Judgment, page 1923).

Judge Camacho Morales links this theme with the jurisprudence of the Constitutional Chamber regarding the principles of breadth of evidence and legitimacy of evidence:

«a) The principle of the breadth of evidence: Assuming that the purpose of the procedure is above all the real ascertainment of the facts, both the Public Prosecutor's Office and the judge have the duty to investigate that objective truth diligently, without disdaining any legitimate means of proof, especially if offered by the defense it is not manifestly impertinent, and even ordering, for better provision, whatever evidence is necessary, even if offered irregularly or untimely. In criminal matters, everything can be proven and by any legitimate means, which implies, of course, the absolute prohibition of using illegitimate evidentiary means and of giving them, if indeed there were any, any formal or material significance.» «b) The principle of legitimacy of evidence: The latter raises, certainly, a difficult issue, which appears at the heart of the case giving rise to this consultation, namely, illegitimate evidence, its formal treatment, and its assessment, a subject on which criminal and constitutional doctrine and jurisprudence have not yet reached a consensus. However, this Chamber has been adopting a position, if not unanimous, at least constant, based on the hypothetical suppression of spurious evidence, in the sense that, besides denying it any probative value in itself—on which there seems to be no discussion—, it is to be suppressed from the process, that is, it is to be supposed that it did not exist and, consequently, other evidence is also to be invalidated, not illegitimate per se, insofar as it was obtained through its means. The differences between the majority and minority of the Chamber have been more of nuance and degree attributed to said principle of hypothetical suppression, so it can be said that this is the criterion supported by the erga omnes binding value of the precedents and jurisprudence of the Constitutional Jurisdiction, ordered by Article 13 of its Law—in this sense, see, for all, for example, 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, among many others—.» (underlining is not from the original, Constitutional Chamber, No. 1739-92 of 11:45 a.m. on July 1, 1992).

«This Chamber in its pronouncements has also pointed out, that incriminating evidence cannot be assigned that sole purpose [of demonstrating with certainty the accused's guilt], but also that of being a guarantee for the realization of a fair process, eliminating judicial arbitrariness, because the fundamental right of the presumption of innocence requires, to be rebutted, evidentiary activity obtained respecting fundamental rights» (Constitutional Chamber, No. 2001-7341 of 2:38 p.m. on September 12, 2001).

«Within the different interpretations on the unlawfulness or not of evidence, we have the theory of spurious evidence. Theory of spurious evidence or fruit of the poisonous tree doctrine, which supposes that whenever an evidentiary means originating from a constitutional violation provides elements of guilt for the accused, the act producing the evidence and all evidentiary means derived from it are null. In that same order of ideas, we find the relative position, called the 'independent source' doctrine, according to which, if the evidence derives from an act violating constitutional guarantees, but also originated from another autonomous element gathered during the investigation and prior to the constitutional violation, the evidence remains valid, because that evidence came from another element, and not necessarily from the act violating the Constitution. This Chamber, in vote 701-91, already expressed: '...the majority thesis of the Chamber in relation to the validity of evidence related to illegitimate evidence, can be synthesized by saying that such evidence retains its validity as long as it does not have the illegitimate evidence as its origin,' understanding then that the causal chain producing the evidence must be studied, with evidence being spurious and null if it comes exclusively from a violation of the Constitution» (underlining is not from the original, Constitutional Chamber, No. 02529-94, cited in No. 2005-04707 of 3:03 p.m. on April 27, 2005).

And it is in this way that Judge Camacho Morales concludes that not only is evidence No. 588 null but also all the other evidence that originates or derives exclusively from it and that, applying the method of hypothetical suppression of unlawful evidence, the accused fact must be held as unproven, since there are no other independent or autonomous evidentiary elements prior to the violation of the Political Constitution. Judge Camacho Morales explains that the Public Prosecutor's Office's own accusation corroborates that it is the evidence obtained in Panama, in relation to Marchwood Holding, that allowed the discovery of Servicios Notariales Q.C.S.A. (cf. accused fact No. 190 on page 45), and adds:

«In the preceding fact [No. 190, page 45], it is clear, and the Public Prosecutor's Office itself so affirms, that it was the evidence obtained in Panama that led to the discovery of Servicios Notariales Q.C.S.A. and that said evidence was the basis for the news published by the media regarding Servicios Notariales Q.C.S.A., which is precisely the evidence declared unlawful in this majority vote, also evidencing, moreover, that there was a transfer of information from the Public Prosecutor's Office to the media in flagrant violation of the duty of privacy provided for in numeral 295 of the Criminal Procedure Code and 22 subsection 3 of the Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications [Law No. 7425], conduct that could constitute the crime of disclosure provided for in numeral 24 of the same Law» (Judgment, page 1939).

Judge Camacho Morales also points out that from the statement of [Name032] it can be clearly established that on his part, in relation to his supposedly represented company Marchwood Holding, there was never prior and express consent for obtaining documentary evidence No. 588, but rather that said authorization occurred several years after the evidence was obtained in Panama (cf. Judgment, pages 1939 to 1940). He then concludes that:

«…it is not possible to hold any fact of the accusation as proven, because all the evidence gathered in the process is unlawful evidence, since the entirety of the investigation derives from one, or rather, from several constitutional violations in obtaining the evidence that guided the investigation from its genesis, and as there is no possibility of excluding the application of the fruit of the poisonous tree doctrine, such as the independent source of the evidence or the inevitable discovery thereof, nor any other exception that excludes the application of the exclusionary rule for unlawful evidence, according to which, evidence obtained directly from a constitutional violation must be excluded from the process as well as all that which derives indirectly from the unlawful evidence, which in this process is the entirety thereof.» «The foregoing is sufficient reason to acquit all the accused of all penalty and responsibility, given the impossibility of establishing, with lawful evidence, any link of the monies, which according to the accusation they received with Servicios Notariales Q.C. and with Alcatel Cit.» The contested judgment was rendered on April 27, 2011, and a few days later, the Third Chamber of the Supreme Court of Justice issued the judgment that resolved the cassation appeals that had been filed in the case known as «Caja-Fischel» (judicial file No. 04-005356-0042-PE). By majority decision, Judges Ramírez, Pereira, and Chinchilla declared the nullity of all the evidence gathered in Panama through the Treaty of Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (T.A.L.M.), as well as all the evidentiary elements that directly depend on it (cf. Third Chamber, No. 499 of 11:45 a.m. on May 11, 2011, folios 14004 to 14014, 14042 to 14043, and 14541 of file No. 04-005356-0042-PE, there is a dissenting vote by Judges Arroyo and Víquez), which in our understanding definitively resolves the discussion on the legitimacy of this documentary evidence, in the same sense as presented by Judge Camacho Morales and in the same way as this Court of Appeals considers it. The Third Chamber states:

«Regarding the challenge against the validity of the evidence from Panama: By majority composed of Judges Ramírez Quirós, Pereira Villalobos, and Chinchilla Sandí, this part of the claim, also formulated through the second ground of appeal, is granted, decreeing the nullity of the evidence gathered in Panama through the Treaty of Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (T.A.L.M.) and all the evidentiary elements that directly depend on it. To analyze the appellants' claim, we must first go back to the origins of the reform of the Criminal Procedure Code of 1996, which is inspired by respect for human rights, whether of the accused or the victim. Regarding the accused, which is the point under discussion, the principle of Innocence is established as a foundation, from which derives, among others, the need for a prior trial and that the process be the one regulated by the Code, as also determined 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, treaties which, as they all refer to fundamental human rights, are and must be analyzed, with primacy over any mutual legal assistance treaty between countries, thus Article 2 of the Treaty of Mutual Legal Assistance in Criminal Matters among the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. Returning to the antecedents of the Criminal Procedure Code currently governing us, one of the fundamental aspects it reclaims is respect for Due Process and it places special emphasis on the Inviolability of the Defense (Article 39 of the Political Constitution), which is why we have affirmed, quite rightly, that the mentioned reform is nothing other than the constitutionalization of Criminal Procedural Law. Under this conception, the legislator considered that the investigation of criminal cases should be directed by the Public Prosecutor's Office, precisely for greater control in the manner of bringing evidence into the process, in strict compliance with the Constitution and the law; in other words, the Public Prosecutor's Office, which is in charge of investigating the crime, must direct the actions of the investigation officers, in order to bring, through all lawful means at their disposal, the evidentiary elements into the process; the foregoing implies the absolute prohibition of using illegitimate means of proof which, consequently, the Judge may not give any formal or material significance, because the procedural order, under no circumstances, tolerates the sacrifice of constitutional guarantees, which protect the citizen, in favor of the search for truth in the criminal process (in this sense, the Judicial Investigation Agency, the Public Prosecutor's Office, and the Judge must adhere strictly to the Constitution, International Human Rights Treaties, and the Law), because the legitimacy of acts and their lawfulness become the only valid criterion to be taken into consideration by the judge in resolving a specific case, the contrary means the obligation of the hierarchical superior to declare, even ex officio, the ineffectiveness of the procedural act. In the specific case, the evidentiary elements obtained in the Republic of Panama, although it is true, according to the internal laws of that country, in which, due to the constitutional rank of the Public Prosecutor's Office, prior to the reform of the Criminal Procedure Code of Panama in the year two thousand eight, it was conferred the power to lift bank secrecy, without jurisdictional authorization, in the process of an investigation in that country and therefore, as indicated in the appealed judgment, in the procedure carried out in that country, there is no violation of internal Panamanian law, whereby for that legal order, the evidence is obtained legally; there exists a serious procedural defect from the outset, which occurs in Costa Rica, regarding the application of the Criminal Procedure Code which requires the Public Prosecutor's Office to make the request for lifting bank secrecy to the Guarantee Judge, to manage before the Central Authority (under the Treaty on Mutual Legal Assistance) the assistance in order to bring from that country, evidence that implies violating the private sphere of their accounts and private correspondence; this absolute procedural defect, in our view, has been overlooked by all the intervening authorities in process number 04-005356-042-PE, arguing that, as in Panama the Public Prosecutor's Office is empowered to carry out the act, in our country the Public Prosecutor's Office can arrogate to itself that right to request directly from the Central Authority (Procuraduría General de la República) the execution of the proceeding, without the assessment of the Guarantee Judge being necessary; an interpretation which, in our view, can in no way be endorsed, by those of us who have been appointed as the last instance to which the parties may appeal for satisfaction and protection of the fundamental rights of their clients. It cannot be valid in our Democratic State of Law that, for the sake of agile compliance with the prosecution of persons accused of the alleged commission of criminal acts, without exception of the person involved, the rights that assist persons accused of committing a crime are trampled arbitrarily and illegitimately (by whoever at that given time had the functional direction of the process in the Public Prosecutor's Office), with erroneous interpretation of unlimited powers, from the very moment they are suspected of committing that criminal act. It is clear that our democratic system in its Legal Order has opted for the wise decision of leaving it in the hands of the competent jurisdictional body to ensure the protection of fundamental rights (among which are the right to privacy, the secrecy of communications, and inviolability of private documents), which is why it authorizes, under exceptional and previously established circumstances, the cases in which they may be restricted, specifically for the knowledge of matters submitted to the Courts of Justice, in which the judge may order the lifting of that secrecy. In the present case, that jurisdictional assessment was required to request the Central Authority, in accordance with the cited treaty, to give the corresponding processing to the assistance request required by the Public Prosecutor's Office, to bring documentary evidence from Panamanian banks into the investigation; this is so because it must be the judge who weighs the necessity, usefulness, relevance, and proportionality of the request made by the body in charge of the investigation. It is important to note here that the interpretation given in this process by the Public Prosecutor's Office is erroneous, a body which, in our understanding, is the first that must be clear about its function and its investigative powers, to the extent conferred upon them by the Constitution and the current Law, in order not to carry out an action that, it must have known, set aside the limits that the legal order imposes when it requested directly from the Procuraduría General de la República, to give the corresponding processing to the execution of an assistance request to Panama, which should have been previously authorized by the Guarantee Judge, since it implied violating the fundamental rights of persons subjected to process in our country and, as is known by each and every one of the justice operators in Costa Rica, the ordinary legislation requires that: a) the order be duly reasoned. b) If possible, individualize the documents on which the decision will be executed, the name of the person who has them in their possession, and the place where they are located. c) Have as a prerequisite a criminal activity, with a determination of a proven indicium regarding its commission. All these aspects require prior weighing on the necessity, suitability, and proportionality of the request that the Public Prosecutor's Office should have brought to the knowledge of the jurisdictional authority; it would be a gross error to conclude, as the lower court does, and this Chamber's minority criterion endorses, that this implies giving an order to the Panamanian authorities; quite the contrary, it constitutes the endorsement of the jurisdictional authority of Costa Rica so that the Central Authority of our country, in accordance with the repeatedly cited treaty, could proceed as stipulated before the competent authority of Panama. The foregoing is not a mere formality; it constitutes the procedural act that legitimizes, according to the internal order, the intrusion into the private sphere of a person, because it is not the function, nor the power, of the Attorney General, nor of the representatives of the Public Prosecutor's Office, to request and access confidential information of persons, without prior authorization from the Judge who is the guarantor of respect for the fundamental rights of citizens subjected to process. This is concluded from the provisions of Articles 24 of the Political Constitution, 12 of the Universal Declaration of Human Rights, 11, subsections 2 and 3 of the American Convention on Human Rights, and 17 of the International Covenant on Civil and Political Rights, all set forth in Articles 2 and 3 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications, No. 7425 (law that even criminally sanctions non-compliance) and 107 of the Organic Law of the Judicial Branch. The power that the Criminal Procedure Code establishes, in its Articles 226 and 290 final paragraph, for the Public Prosecutor's Office to request reports from private persons or public entities, according to what is stipulated, is so as long as it is not private information, protected by Article 24 of the Political Constitution; the contrary, in accordance with the second paragraph of Article 181 of the CPP, implies a violation of Due Process, due to the infringement of the fundamental right to the privacy of private documents. The Mutual Legal Assistance Treaty aims to strengthen and facilitate the cooperation of the justice administration bodies of the region, through an instrument that allows assistance in criminal matters, but it is clear that this must occur with full respect for the internal legislation of each Member State; what is replaced is the cumbersome consular procedure, to streamline communication channels, and in no way can its content have repercussions on the system of guarantees applicable in the country. This is so true that its preamble expressly establishes that such assistance is provided with full respect for the internal legislation of each State. As mentioned at the beginning of this vote, the possibility of streamlining procedures cannot become an open letter to arbitrariness, arrogance, and disrespect for constitutional guarantees and the current internal order.

It is not legitimate that, as happened in the present case, representatives of the Public Prosecutor's Office (Ministerio Público) even travel to another country to be present during the gathering of evidence, yet do not take the minimum time necessary to correctly make the request before the appropriate judicial authority, thereby sacrificing essential evidence for the resolution of the case submitted to the Costa Rican courts, as the invalidity of the act carried out in violation of Due Process (Debido Proceso) must be declared, an act which also entails time and money that all Costa Ricans must pay. On previous occasions, this Chamber has already declared the invalidity of actions in similar procedural acts where the Public Prosecutor's Office, in carrying them out, has acted contrary to the law, with very unfortunate consequences for the proper administration of justice, and in this regard, as stated at the outset, without exception for the person subject to the process, the law is equal for all, and consequently, it is not about achieving a conviction at all costs, but rather that which results from the correct introduction of evidence into the process, 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 criticism (sana crítica), such that the prosecuting body must be the first party interested in presenting a case to the jurisdictional body, not only with the possibility of making its theory prevail in the adversarial debate because it possesses sufficient evidence, but also ensuring that such evidence is effective because its collection has respected the constitutional guarantees that protect the person subjected to the process. On this point, doctrine has held: “…In our legal environment, the constitutional structuring of procedural rules has always been under discussion. Thus, for example, information obtained in violation of constitutional guarantees cannot be used; therefore, Article 96 of the NCPP conditions the validity of the act on respect for the fundamental rights of the person, except ‘that it favors the accused’ (Art 181 NCPP). The doctrinal current is maintained, which orders that this type of irregularity is not susceptible to convalidation (convalidación) in accordance with Article 178 NCPP and must be declared ex officio by the Judge, whenever they imply non-observance of rights and guarantees not only in the Constitution, but also in current International or Community Law.” (ARMIJO SANCHO, Gilberth, Garantías Constitucionales, Prueba Ilícita y Transición al Nuevo Código Procesal Penal. Premio Anual. Alberto Brenes Córdoba, page 127). Consistent with this position, national case law has leaned towards the doctrine of the “fruits of the poisonous tree” in the sense that evidence obtained as a result of illicit evidence has no probative value. It is important to reaffirm that, notwithstanding the supra-legal status held by the TALM, this does not place it above the Political Constitution (Constitución Política), given that this condition is only achieved by treaties on Human Rights (Article 48 of the Political Constitution). In conclusion, the obtaining of the evidentiary elements that were brought into the criminal proceedings against [Nombre032], [Nombre037], [Nombre021], [Nombre038], [Nombre039] known as [Nombre040], and [Nombre041], through the letters rogatory to Panama and their extensions, without observing the constitutional and legal guarantees that govern the ability to request their obtaining in accordance with Costa Rica's internal legal order, constitutes spurious evidentiary elements, illegitimately incorporated into the process. By means of a defective procedural act of an absolute nature, their invalidity is declared, as well as that of the other evidentiary elements derived directly from them, specifically: the documentary evidence obtained through the Letters Rogatory to Panama and their extensions; the investigative statement (declaración indagatoria) of [Nombre032], insofar as it is based on the evidence from Panama; the testimonies of [Nombre042], Panamanian Prosecutor, [Nombre043], assistant to the Panamanian Prosecutor's Office, [Nombre044], Director of the Office for Enforcement of the Legal Assistance Treaty, all witnesses who refer to the evidence whose invalidity is declared regarding the content and manner of obtaining it; the OIJ Report, No. 200- DEF-495-04-06, insofar as it alludes to the evidence from Panama; the statement of the experts from the Judicial Investigation Agency (Organismo de Investigación Judicial), [Nombre045] and [Nombre046], in what corresponds to the hearsay evidence. Finally, it is appropriate to analyze the convalidation (convalidación) that the lower court (a quo) makes of all the evidence based on the letters rogatory to Panama and their extensions, in hearing number 156 of the trial, with the Court supporting its decision on the “authorization” given by the accused [Nombre032] when rendering his investigative statement; which is absolutely illegal. In the first place, because, as there are several accused persons who filed the Defective Procedural Activity (Actividad Procesal Defectuosa) motion, having seen their fundamental rights affected because the procedural act through which the evidence was obtained did not respect Due Process; the fact that Mr. [Nombre032] himself desists from his motion for Defective Procedural Activity, an action also taken by his defense attorney, cannot convalidate an act that affects other co-defendants in the case, whose fundamental right to the privacy of their documents has been violated. The citation made in the dissenting opinion (voto de minoría) regarding case law from this Chamber in no way corresponds to the issue raised here, because in that case, there is no violation of the fundamental rights of other implicated parties, and the evidence was only important in proving a fact between the person authorizing it and the offended party. Added to the foregoing, the authorization that relieves the necessary intervention of the Judge is only valid insofar as it is given prior to the execution of the procedural act; in this sense, see the provisions of the first paragraph of Article 29 of the Law on Registration, Seizure, Examination of Private Documents and Interception of Communications (Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de Comunicaciones), No. 7425, a provision that must be harmonized with the provisions of Article 24 of the Political Constitution and Article 1 of the Criminal Procedure Code (Código Procesal Penal). In a second and extremely important aspect, Article 29 of the cited special law expressly provides that the authorization to examine banking documentation, when there are several account holders, must be given by all its holders. It is accredited in the case that the holders of account [Valor034] at BAC INTERNATIONAL BANK DE PANAMA, ARE [Nombre032] AND [Nombre047]; this constitutes the main account, as it is the one opened in Panama with the purpose of receiving, as established in the judgment being appealed, the monies paid by the company Instrumentarium Corp. Medko Medical, monies that are then diverted to their personal accounts Marchwood Holding, Harcourt Holding, Walka, and to the personal account of the co-accused [Nombre037], according to the evidence whose invalidity is declared in the majority opinion (voto de mayoría). The foregoing means that, although [Nombre032] had the representation, with the possibility of acting individually, this cannot be validly interpreted, in contravention of the law, as the lower court does in the challenged decision, because Article 29 of Law No. 7425 of August 9, 1994, expressly requires the authorization of all holders, and this is precisely so because that authorization implies intrusion into the sphere of privacy of individuals and the privacy of documents, protected in the Political Constitution, whereby the decision made by one of its holders cannot violate that right over the others. Consequently, the Court's decision to convalidate the defective procedural activity affecting the letters rogatory to Panama and their extensions is an act that does not conform to the provisions of the law; consequently, it does not have the effect of convalidating the vitiated act and in no way affects what has been stated regarding the declaration of invalidity of all evidence originating from Panama. Magistrates Arroyo Gutiérrez and Víquez Arias dissent.

If, according to the Chamber's precedent, that documentary evidence and its direct derivatives are null for that matter, they are necessarily also null for the present case, which is a derivative of that one. It is not superfluous to add that disregarding this Chamber precedent would give rise to a contradiction that could eventually constitute grounds for cassation (Article 468, subsection a of the Criminal Procedure Code). Thus, evidence 588 and all probative elements that depend directly on it are null. Having suppressed this documentary evidence, only the statement of the collaborating accused (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 said it would take the opportunity to give "complementary arguments to the arguments raised in the judgment to uphold the legality of this evidence" (cfr. audiovisual record c0002121107132843.vgz, from 13:42:10 to 13:42:30) and insisted that not only is evidence no. 588 lawful, but that there is also an uninterrupted, parallel, and independent line of journalistic investigation, which may also be a source of independent evidence to prove the fact that constitutes the object of this judicial process, according to case law or doctrines of the Supreme Court of the United States of America. It refutes the criterion expressed by our Third Chamber (Sala Tercera) in judgment No. 2011-499 (Caja-Fischel case) to maintain that Mr. [Nombre032] is indeed legitimized to authorize the use of evidence 588. This Chamber does not share the Prosecutor's Office's criterion. As stated in the previous section—to which we refer to avoid unnecessary reiterations—evidence no. 588 is illicit, as well as all the probative elements that derive directly from it, according to the Political Constitution and Costa Rican laws, which allow the issue to be resolved directly, as the Third Chamber of our Supreme Court of Justice did. Nor is the thesis acceptable that the grounding of the sentence can be "complemented" through this means of challenge, or that the fact under process can be derived independently from the journalistic investigation, for the following reasons. In the first place, because it is the judges of the trial court, not the prosecutors, who hold the power to ground the conviction. The Prosecutor's Office cannot complement or integrate reasons to supply the lack of grounds in a judicial resolution that is being challenged (the sentence must be self-sufficient in what concerns its grounding). In the second place, because, in principle, one cannot presume as lawful the manner in which the media obtain information protected by Article 24 of the Political Constitution, if they have obtained it from a supposed "confidential source" or by means different from those prescribed by the Political Constitution and the laws of the Republic. Information in such a situation may perhaps be recorded in their news or give rise to new lines of journalistic investigation (even as a legitimate exercise of the right to information) and thus give rise to valuable debates of public interest, but it definitively cannot be incorporated into the criminal process to ground a conviction, because there is an insurmountable limit imposed by Article 181 of the Criminal Procedure Code:

«Evidentiary elements shall only have value if they have been obtained by a lawful means and incorporated into the procedure in accordance with the provisions of this Code.» «Unless it favors the accused, information obtained through torture, mistreatment, coercion, threat, deceit, undue intrusion into the privacy of the home, correspondence, communications, private papers and files, nor information obtained by any other means that impairs the will or violates the fundamental rights of persons, may not be used» (the underlining is supplied).

Article 24 of the Political Constitution guarantees the right to privacy, freedom, and secrecy of communications, which includes bank secrecy. In this regard, our Constitutional Chamber (Sala Constitucional) states that:

«In general, all banking activity involving contracts, applications, and any other type of relationship with private individuals -as clients-, is, by its nature, covered by bank secrecy.-» «The operations carried out by private individuals with banks -as subjects of private law- constitute, both in their obtaining and in the form and manner of their constitution and service, private documents that are covered by the protection established in Article 24 of the Constitution -unless by their nature they must be recorded in public documents or in registers, also public, from which, and without the bank's intervention, the information they contain could be obtained-, so the bank cannot provide it except in the cases and in the manner that said article provides for it.» (Constitutional Chamber, No. 578-92 of 10:45 a.m. on February 28, 1992).

Article 615 of the Commerce Code (Código de Comercio) provides that:

«Bank checking accounts are inviolable and banks may only provide information about them upon request or with the written authorization of the owner, or by order of a competent judicial authority. Excepted is the intervention that, in fulfillment of its functions determined by law, the General Superintendency of Financial Entities (Superintendencia General de Entidades Financieras), or the General Directorate of Taxation (Dirección General de Tributación) authorized for this purpose may carry out.» The "Law on registration, seizure and examination of private documents and interception of communications" (Law No. 7425 of August 9, 1994) is the special legislation that—in compliance with Article 24 of the Political Constitution—establishes in which cases the Courts of Justice may order the seizure, registration, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their knowledge. From a constitutional and legal standpoint, when it is absolutely indispensable to lift bank secrecy to clarify a matter submitted to the knowledge of a Criminal Court, that information can only be obtained by the Courts of Justice and necessarily in the manner provided by the law governing this matter. In any case, the alleged line of journalistic investigation is not even prior to or independent of the act of judicial assistance from Panama that vitiated evidence no. 588, since all the notes are subsequent to it or expressly refer to the Prosecutor's Office's investigation as a source of information. A.2.- The statement of the accused [Nombre026]. The participation attributed to Mr. [Nombre012] is derived by the court from the testimony of [Nombre026]. a.- General considerations on the assessment of the statement given by a “collaborating accused” (imputado colaborador). The principle of opportunity (principio de oportunidad) is an exception to the principle of legality (principio de legalidad), according to which the Public Prosecutor's Office (Ministerio Público) must exercise public criminal action in all cases where it is appropriate, in accordance with the provisions of the law. In this sense, the principle of legality seeks to guarantee legal certainty and equality in the application of the law. But Article 22 CPP regulates a list of exceptions to that rule, which it calls «criteria of opportunity». These are very specific cases in which, with prior authorization from the hierarchical superior, the representative of the Public Prosecutor's Office may request that criminal prosecution be totally or partially dispensed with, that it be limited to one or several offenses, or to some of the persons who participated in the act. Of those cases, we are interested in the one provided for in subsection b) of Article 22 CPP, which reads as follows:

«It concerns matters of organized crime, violent criminality, serious crimes, or those of complex processing, and the accused collaborates effectively with the investigation, provides essential information to prevent the continuation of the crime or the perpetration of others, helps to clarify the investigated act or other related ones, or provides useful information to prove the participation of other accused persons, provided that the collaborator's conduct is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents» This hypothesis is called by some «Crown Witness» for historical reasons (relating to the origin and development of the institute in the Anglo-Saxon system, meaning witness of the King or Queen); others call it—more than imprecise, pejorative—a “repentant” witness, “informer,” or “snitch.” Because Costa Rica is a Republic, in which the dignity of persons is respected (Articles 1 and 33 of the Political Constitution), we choose to refer to this subject as a “collaborating accused,” which are the terms in which Article 22 CPP describes them. For the application of this exception to the principle of legality to be reasonably justified, the results indicated in the rule must be obtained (to increase the efficacy of the investigation of facts, to prevent the continuation of the crime or the perpetration of others, to obtain useful information to prove the participation of other accused persons), but respecting a value judgment, namely, that obtaining these results regarding the punishable acts whose prosecution it facilitates (or whose continuation it prevents) is more valuable than the reproach that can be made to the collaborator for their conduct. In other words, that it is more convenient to partially or totally dispense with criminal prosecution against the collaborating accused if, through their collaboration, those benefits are achieved. The figure itself has been heavily criticized because it breaks fundamental principles of a Rule of Law State (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), going so far as to say that:

«...recognizing in the Public Prosecutor's Office a discretionary power (undisguised opportunity or regulated opportunity) so that it may: 1) Either not exercise criminal action, despite knowing of the existence of a fact with the appearance of a crime, with which the process does not even begin, 2) Or request that a different or lower penalty than the one legally provided be imposed on the accused, despite being aware that the penalty established in the Criminal Code (Código Penal) is another or higher, and 3) Either conclude the process without a conviction being handed down in it, and always despite the existence of a fact at least apparently constitutive of a crime, all of this must necessarily imply the perversion of the entire criminal material system.» «The most serious aspect of the matter is that all the effort of the criminal legislator, the political decisions adopted when typifying a conduct and establishing a penalty, can be rendered meaningless by virtue of a non-criminal rule authorizing the Public Prosecutor's Office to dispose of the application of that Criminal Law in specific cases. If the rule establishing the principle of opportunity were to be classified as procedural, one would arrive at the contradiction that the entire Criminal Code would be subject in its application to a procedural criminal rule, to a single rule, with which it could be said that all the substantive criminal rules are left empty of content» (MONTERO AROCA, Juan: Principios del proceso penal, Valencia, Tirant lo blanch, 1997, pages 78 to 79).

«The introduction of this figure into Argentine criminal law was not, nor is it, exempt from controversy. Against it, important voices have risen that openly reject the possibility that the State enters into negotiations with one who perpetrates an unlawful act, whether for moral and constitutional reasons, or because of the delegitimization of the purposes of the State penalty that the agreement causes» (SCHIAVO, Nicolás: La figura del ‘arrepentido’ en la Ley 23.737, in <http://new.pensamientopenal.com.ar/16102007/doctrina03.pdf)>.

In the case of the collaborating accused, more than opportunity (understood as convenience), it is opportunism, in the second meaning of this word, “...which consists in taking maximum advantage of circumstances to obtain the greatest possible benefit, without regard to principles or convictions” (REAL ACADEMIA ESPAÑOLA: Diccionario de la Lengua Española, Madrid, 21st edition, 1992, page 1049), as it is in this matter to make exceptions to the mandatory nature of the exercise of criminal action.

«...The crown witness, called ‘pentito’ or repentant in Italian procedural legislation, is a dishonorable, dangerous, and immoral instrument, which the state resorts to in its fight against crime. The holder of the right of prosecution, which in our system is the Public Prosecutor's Office, does not realize that fighting against unlawfulness using morally questionable resources comes to be, in a certain way, legitimizing the conduct of one who places themselves outside the law. Evidently, it is an effective and powerful resource [...] However, this does not distort the immoral nature of the resource employed. The so-called criterion of opportunity is not such; it is an opportunistic criterion and not one of opportunity. The parties have no way of knowing whether the legal rights being negotiated are of greater or lesser rank than those being violated. The Public Prosecutor's Office handles this dangerous instrument at will and accounts for it only at the trial itself. Is this not defenselessness? A few years ago, taking advantage of the presence of Eugenio Raúl Zaffaroni in Costa Rica, I spoke with him in the company of the distinguished colleague Lic. Ricardo Hilje. Using the occasion, I asked the illustrious academic and Argentine magistrate his opinion about this resource that was just dawning as a possibility on the Costa Rican procedural horizon. Zaffaroni answered what I had always thought: that a Rule of Law State cannot fight against crime using the same resources as crime, that is, those that violate basic principles such as loyalty. The informer is odious everywhere, although the result of their informing may be axiologically acceptable...» (CASTELLON V., Gonzalo: El testigo de la corona, in the newspaper La Prensa Libre, Thursday, April 29, 2010).

It is also an exception to the regime of prohibitions referring to the accused's statement, specifically in Article 96 of the Criminal Procedure Code, as there is no doubt that negotiating the application of this criterion of opportunity can be a way of inducing or determining the accused to “voluntarily” declare what interests the Public Prosecutor's Office. The third paragraph of Article 96 CPP (“The promise of an advantage shall only be admitted when it is specifically provided for in the law”) allows what the rest of the rule prohibits. An advantage not provided for in the law would be prohibited, because it is manifestly irregular to offer advantages to an accused in exchange for their confession or an informing, since obtaining the benefit would be a factor that could condition or determine them to “freely” say what the Public Prosecutor's Office wants to hear them say in exchange for the advantage that, from an evident position of superiority, it offers them. It is the law, but it entails a normative dissonance. Although the accused is made an offer authorized by Article 22, subsection b) CPP, the trial court cannot overlook that the accused has been truly tempted or manipulated by the advantage offered by the penal actor, that if they declare, they do not do so with a will as free and spontaneous as it seems, but rather conditioned by the obtaining of an advantage for themselves, against the rigor of the penal system, such that the mere authorization of the law to agree on a criterion of opportunity does not exempt the court from the duty of being particularly careful when establishing the probative value of the statement given by the “collaborating witness” (as Judge Camacho Morales warned in his dissenting opinion for the resolution at 1:30 p.m. on September 2, 2012, cfr. Volume XXVIII, folios 13713 verso to 13714 verso). But if our legislator adopted the institute, it is to be supposed that its purpose was to strengthen the efficiency of the system (cfr. GONZÁLEZ ÁLVAREZ, Daniel: El principio de oportunidad en el ejercicio de la acción penal, in Ciencias Penales, Revista de la Asociación de Ciencias Penales de Costa Rica, San José, Year 5, No. 7, July 1993, pages 63 to 69), not to favor impunity:

«In all these assumptions, it is a requirement that the act whose prosecution is dispensed with is considerably less serious than those that the accused helps to investigate or to cease its continuation; the opposite would be to foment impunity for serious crimes, with which the application of the principle of opportunity would lose all meaning» TIJERINO PACHECO, José María: Principio de Oportunidad, in A.A.V.V.: Reflexiones sobre el nuevo proceso penal, San José, Imprenta y Litografía Mundo Gráfico S.A., 1996, page 98).

The head of the Public Prosecutor's Office who authorizes the request is the competent authority to assess the “opportunity,” convenience, and need to apply this criterion (Art. 22 CPP). Regarding the judicial control of the application of criteria of opportunity, the Constitutional Chamber has ruled in the sense that:

«...the function of accusing in crimes of public action is a function assigned by Law to the Public Prosecutor's Office. Consequently, it corresponds to the Prosecutor to decide on the convenience of applying or not applying a criterion of opportunity [...] The judge's authorization excludes the performance of an analysis of the convenience or opportunity of the measure, given that they cannot substitute the prosecutor's decision, who is in charge of the exercise of criminal action...» (Constitutional Chamber, No. 2001-02662 of 3:30 p.m. on April 4, 2001).

But it is clear that it is the trial court that is responsible for analyzing and assessing the evidence produced through this particular criterion of opportunity. The Third Chamber has indicated that because the criminal action against the collaborating accused “...is suspended, subject to the outcome of the trial, the statement given by the ‘crown’ witness in the trial against the other accused must be made in their capacity as accused and with respect for the guarantees that this entails” (Third Chamber, No. 476 of 10:02 a.m. on March 16, 2012).

The Constitutional Chamber has also provided some criteria to be followed regarding the collaborating accused, and it has done so precisely in relation to this specific case, in judgment No. 2009-12090 of 2:40 p.m. on July 31, 2009, which refers to an action of unconstitutionality brought by Mr. [Nombre012] against Articles 24, 297 subsection d) and 299 second paragraph of the Criminal Procedure Code:

«...the fact that no right of appeal is provided for the resolution approving the application of a criterion of opportunity by those who appear as accused in the same case does not violate due process or the right of defense, given that the testimony given by the person to whom a criterion of opportunity has been applied will be assessed by the court, which must justify the credibility it grants or not, in relation to the rest of the evidence, and furthermore, may be extensively questioned by the parties in the trial. Likewise, the accused has the right to challenge the sentence if they consider that defects have occurred in the reasoning of the judgment or in the incorporation or assessment of the evidence...» «...the possibility of dispensing with the exercise of criminal action is provided [...] provided that their conduct is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents. This evaluation of reprehensibility refers to culpability, in such a way that the person who collaborates must deserve a judgment of reproach or lesser culpability than the main perpetrator with respect to whom they provide the collaboration...» «...It is important to mention as a reference that the European Court of Human Rights, in a judgment of September 6, 1978, admitted the legitimacy of the crown or repentant witness.

Subsequently, the same jurisdictional instance determined, according to decisions of September 27, 1990, and November 20, 1989, that its admissibility must be only as a source of circumstantial evidence, that is, that the data or information it provides requires the support of other means of proof. It becomes a means of investigation subject to confirmation, direct or indirect, of the data or circumstances it has provided regarding the facts under investigation. These requirements do not detract from the legitimacy of the collaborator, according to the jurisprudence of the European Court of Human Rights» «... from a reading of the challenged Article 22 subsection b), it is clearly inferred that the prosecutorial discretion based on collaboration (criterio de oportunidad por colaboración) applies to those participants whose actions are considered less culpable (reprochable) [...] it is also required that the accused effectively collaborate with the investigation, provide essential information to prevent the continuation of the crime or the perpetration of others, help clarify the investigated act or other related ones, or provide useful information to prove the participation of other accused persons; all this collaboration requires, as provided by the rule, that the conduct of the collaborator be less culpable than the punishable acts whose prosecution it facilitates or whose continuation it prevents. Culpability has to do with the degree of guilt with which one acted, which cannot be determined a priori, but must necessarily be evaluated in each specific case...» It is important to note that in this ruling of the Constitutional Chamber (Sala Constitucional), Judges Calzada and Jinesta dissented, warning that:

«In our opinion, ‘prosecutorial discretion criteria’ produce the unlawful effect of the total or partial waiver of the ius puniendi with respect to some infractions or certain persons who have participated in an allegedly criminal act. The non-waivable nature of a first-order public power is irreconcilable with any criterion of opportunity or discretion—ultimately relative and subjective—in its exercise. Moreover, the fundamental charter presupposes a fundamental ethical and moral order, so much so that Article 28 of the Constitution prescribes that the principle of autonomy of will has morality as one of its limits. In our opinion, ‘prosecutorial discretion criteria’ can be, eventually, objectionable from a universal moral point of view and from a minimum ethical-constitutional substratum, because they enable the criminal prosecution body to dispense with public criminal action against certain persons or for certain acts. In another vein, the principle of legality in criminal matters supposes that the People, in whom the original power to legislate resides, delegate it to the Assembly through suffrage (Article 105 of the Constitution), so that it may classify certain conducts as unlawful and guilty; the criminal prosecution body, which lacks all democratic legitimacy, is not in a position to decide, discretionally or conveniently, which conducts and which persons to prosecute even though the legislator, by delegation of the people, has previously deemed that they should be prosecuted. In short, a body that lacks mediate or immediate democratic legitimacy is not in a position to weigh what the public or general interest deems should or should not be prosecuted. It must be taken into consideration that the basic or fundamental guidelines and policies for investigation, prosecution, and the exercise of criminal action are established, primarily and above all, by the repressive legislation enacted by the Legislative Assembly by virtue of the power delegated to it by the people. In this way, another fundamental principle of the constitutionality parameter enshrined in Article 129 of the Constitution is contravened, which prescribes that ‘Laws are obligatory’ and that ‘A law is not abrogated or repealed except by a subsequent one,’ given that, despite the rule and binding nature of the law and the impossibility of repealing a law for a specific case, prosecutorial discretion criteria allow the law to be disapplied for one or several acts and for specific persons. The previous argumentation proves that prosecutorial discretion criteria are incompatible with a correct and due understanding of a Constitutional State of Law, despite the multiple arguments of a doctrinal, sociological, or criminological nature that may support their establishment (e.g., that the penal system does not have the capacity to repress all conduct, the economy of resources in prosecution, that there are insignificant conducts—bagatelle crimes—that should not be prosecuted, or that criminal prosecution has traditionally focused on conventional crime, ignoring unconventional crimes, etc.). All those arguments of a doctrinal or meta-juridical nature that support prosecutorial discretion criteria cannot be placed above—because they lack constitutional support—the stated constitutional precepts, values, and principles. The partial or relative derogation of the principle of legality—inherent to the Constitutional State of Law—through prosecutorial discretion criteria, is of such magnitude that it inexorably requires a constitutional reform that admits it, an extreme that our Constitution does not contemplate. Thus, by way of illustration, according to a systematic hermeneutics and keeping the proportions of the case, Article 180, paragraph 3, of the 1949 Constitution admits, in national Public Law, the derogation or displacement of the principle of substantive and budgetary legality by that of necessity, under circumstances qualified ‘to satisfy urgent or unforeseen needs in cases of war, internal commotion, or public calamity.’ Finally, it is necessary to point out that the legislative body, in the exercise of its legitimate sovereign power, for the achievement of the ends sought by prosecutorial discretion criteria, has other alternatives or political options, such as decriminalization or ‘descriminization,’ the increase of administrative faults, rigorously delimiting the terrain of Criminal Law and sanctioning Administrative Law, the introduction of suitable and expeditious tools to combat unconventional crime, etc.» b.- Considerations on the analysis and assessment of the statement made by [Nombre026]. If prosecutorial discretion based on collaboration (criterio de oportunidad) was granted to [Nombre026] for utilitarian purposes, then that decision of the Public Prosecutor's Office (Ministerio Público) must be judged by its results or consequences. From this perspective, the following questions must be asked about the accused [Nombre026]:

Did he effectively collaborate with the investigation of the act attributed to him?; Did he effectively collaborate in clarifying other crimes related to the one in whose case the prosecutorial discretion criterion is being applied to him?; Did he provide essential information to prevent the continuation of the crime or the perpetration of others?

Did he help clarify other related facts?

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

Was the conduct of [Nombre026] less culpable (reprochable) than the acts whose prosecution he supposedly facilitated or whose continuation he prevents?

This Chamber considers that the answer to all these questions is “No,” since it is evident that [Nombre026] did not even give a reliable statement and that the majority of the court neither analyzed nor critically assessed it, as was required by such a particular and supposedly essential deposition. Let us remember that [Nombre026] is the only eyewitness to the alleged participation he attributes to [Nombre012], which implied the need to have been cautious when analyzing and assessing his statement, as advised by scholars of this discipline who have reflected on this institution since the Enlightenment:

«Some tribunals offer impunity to the accomplice in a serious crime who reveals the others. This recourse has its drawbacks [...] The drawbacks are that the Nation authorizes betrayal, detestable even among the wicked; because crimes of courage are always less fatal to a society than those of baseness, since the former is not frequent, and with only a beneficent force to direct it, it will conspire for the public good; but the latter is more common and contagious, and always concentrates on itself. In addition to this, the tribunal reveals its own uncertainty and the weakness of the law, which implores the aid of the one who offends it...» (BECCARIA, Cesare: De los delitos y de las penas, Madrid, Alianza Editorial, 1997, pages 108 to 109).

Also in classical literature, there are well-founded objections regarding the testimony about another’s act given by the accused who confesses everything or part in exchange for an advantage, for example:

«We repeat that whenever the incrimination in the generic sense of the accomplice is presented as a discharge by the accused person who is accusing, the suspicion about the veracity of the latter is legitimate. From this it follows that this suspicion becomes excessive when impunity has been promised on condition that the name of the accomplice be revealed, for the impulse to lie is so great that logic refuses to take into account a revelation of participants like this, which has as its price the impunity of the one who makes it. But fortunately, that hypothesis of impunity as the price of revelation has lost much importance, since it has been proven that it causes serious damage. The promise of impunity, instead of constituting a brake against crime, due to the distrust it creates among accomplices, is an incitement to crime, due to the assurance it gives each one of always having an open path to escape criminal justice. The promise of impunity, which is an immoral pact between the law and the delinquent, besides being a legal error, is an evidentiary error, because, on the one hand, it incites crime and corrupts and disturbs society with the spectacle of the release of an unpunished delinquent, who is almost always not only the most guilty but also the most perverse; and on the other, it subverts all evidentiary criteria and produces in the consciousness of the accused person, and by operation of the law, a very powerful impulse toward false revelations» (FRAMARINO DEI MALATESTA, Nicola: Lógica de las pruebas en materia criminal, Volume II, Editorial Temis, S.A., 2002, page 260).

At present, it is worth bringing up the observations of Ferrajoli and Riera Beiras on the figure of the collaborating witness (testigo colaborador). The former has warned that as the guarantor model (modelo garantista) inverts the idea that the end of truth justifies any means, such that it is solely the nature of the means that guarantees the attainment of the end; hence derives the prohibition of any promise or direct or indirect pressure on the accused to induce them to repentance or collaboration with the accusation; and warns us that:

«All criminal and procedural guarantees [...] are effectively altered by the negotiation between the parties or, worse yet, between judge and accused having as its object the proof and the penalty: the retributive link between penalty and crime, since the penalty and its measure are made to depend on the procedural conduct of the defendant more than on the gravity of the crime; the principle of strict legality, due to the completely indeterminate and debatable nature of the degree of reliability and relevance of the collaboration provided and, therefore, of the prerequisites for the penalty reduction; the principle of materiality, given the eminently subjective character of the collaborationist attitude or, even worse, of the ‘repentance’ or ‘dissociation’ required of the accused, on whom, moreover, the accusatory burden of proof is shifted; the principle of contradiction, due to the confusion of roles between the parties and the monologue character imprinted on all procedural activity; the guarantees of defense and publicity, because the collaboration of the accused with the accusation requires a tête à tête between investigator and investigated that does not tolerate the presence of third-party strangers and which, on the contrary, due to the unequal nature of the relationship between the contracting parties, degrades into murky transfers of trust of the ‘servant and master’ type; finally, the principle of penal equality, given that only the guilty can collaborate, bargain, and profit, and all the more so if they are seriously guilty, whereas the innocent or those with marginal responsibilities could not do the same, and for not knowing anything of the crime and not providing any accusatory contribution, they are doubly penalized. Legality, jurisdictionality, non-derogability of the action and the trial, and unavailability of penal situations definitively vanish in this unequal negotiation, leaving space for an entirely dispositive power that inevitably leads to arbitrariness» (emphasis added, FERRAJOLI, Luigi: Derecho y razón Teoría del Garantismo Penal, Editorial Trotta, Madrid, 1995, pages 608 to 609).

For his part, Rivera Beiras warns with utmost clarity and precision of the risk that the figure of the collaborating witness (testigo colaborador) entails for the investigation of the truth:

«... perhaps this is one of the points that most forcefully evidences the presence of the political over the legal. So much so, that clear examples can be seen of European legislations that have been—though with diverse legislative techniques—"legalizing" the special, benevolent, and rewarding treatment of the figure of informers/repentants/collaborators with justice, etc.» «And, truly, I believe it can be affirmed, without fear of being mistaken or exaggerating, that it has been the regulation on "repentants" that would most forcefully end up profoundly changing the character of criminal legislation and its inspiring principles. Indeed, this was the legislative trend that disrupted the foundations of a Criminal Law of the act, of the deed, turning them into those of a Criminal Law of the author. Why is such a judgment made? Let us see certain points, essential for piecing together the process I am trying to describe.» «In the first place, it must be pointed out that the repentance of the subject to be rewarded is by no means the spontaneous repentance that has always existed in ordinary criminal legislations. Quite the contrary, it is a calculated repentance. And such calculation is verified on the basis of measuring the benefits—procedural, penological, or penitentiary—that the repentant thinks they can obtain.» «Put in much plainer terms: it is about achieving the change of sides of the offender in exchange for judicial remuneration or remuneration negotiated judicially.» «Likewise, and increasingly so, the distortion of law becomes more evident; it is then about instrumentalizing the accused to subsequently be able to use their confession—as privileged evidence—against their former denounce companions.» «It must also be said, in close relationship with the foregoing, that the repentant usually—according to the degree of repentance/delation/betrayal they reach—stops being an accused to move into the category of a witness. Of course, this is not an impartial witness but a deeply interested one.» «From here on, it is evident that it will no longer be possible to know when they are telling the truth and when they are beginning to exaggerate, lie, or simply invent in order to achieve the benefits. And this is because their benefits become inversely proportional to the harm suffered by the denounced persons; the rule is simple: the more harm they manage to cause their former companions, the more personal benefit they will achieve.» «One of the most outstanding consequences of this entire system is thus reached: it will end up serving less sentence, not those who commit fewer crimes, but those who denounce more.» «There is no need to argue too much, it seems to me, after the noted comments, to conclude by affirming that a penal system—substantive and procedural—inspired by the principles that have been described, constitutes a true weapon of political struggle that has ended up subverting the principles of a Criminal Law born in the liberal-Enlightenment tradition.» «A concrete and current example of everything being mentioned is constituted by a norm of the Spanish Criminal Code, when it provides that: "[...] the Judges and Tribunals, reasoning it in the sentence, may impose a penalty lower by one or two degrees than that indicated by law for the crime in question, when the subject has voluntarily abandoned their criminal activities and appears before the authorities confessing the acts in which they have participated, and furthermore, actively collaborates with them to prevent the commission of the crime or effectively contributes to obtaining decisive evidence for the identification or capture of other responsible persons or to impede the activity or development of armed bands, organizations, or terrorist groups to which they have belonged or with which they have collaborated"» (emphasis supplied, RIVERA BEIRAS, Iñaki: Recorridos y posibles formas de la penalidad, Anthropos Editorial, 2005, pages 117 to 119).

Among the criticisms that our academy makes of the “collaborating accused” (imputado colaborador), is precisely that of the low reliability of its results:

«The main criticisms concern the scant credibility that a Crown witness (testigo de la Corona) may have...» «The practice of the 1996 Code has been unclear; in the first place, the institution fell into disrepute when in a well-known case the Crown witness changed their 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 the evidence obtained by this route deserves very little credit, as the case of a subject who wants to involve others to protect their own situation, seeking to be released from their criminal responsibility, can easily arise. Ultimately, the legal benefit that the collaborator can obtain depends on the effectiveness of their contributions, so these can be seriously conditioned by their own interests, not only procedural but also economic and even for publicity. But not only that, it is also feasible that the alleged collaborator may rather seek to confuse the authorities in charge of the investigation, providing false data. Consider, for example, the manipulation that several accused could do, simply by agreeing to offer distorted collaboration, falsifying, for instance, their information» «For some, when an accused denounces others, affirming that they committed the act together with them or that they intend to incur more crimes, the authorities are obliged to act with the utmost prudence and caution, without despising that information, but granting it only the value corresponding to a notitia criminis. If an accused decides to reveal secrets that another would jealously guard, how many reasons can motivate that conduct? Therefore, it has been said, with good reason, that the system should establish all the necessary guarantees to ensure the veracity of the data, confirming the information by other means.» «However, in many cases the revelations of the collaborator are easily accepted as authentic indications of criminal responsibility, without regard to the personality of the informant, nor the scant credibility they deserve, nor the preceding contradictory statements they may have made. Although at times the collaborating accused does not say everything they know or does not assume all the responsibility that corresponds to them, it can happen that, due to an accommodating attitude, their revelations deserve much more credit than any exculpatory version offered by those who are denounced. In certain cases, this can lead to a lack of depth in police inquiries and, in close relation to it, to a stagnation of investigation techniques.» «In these circumstances, procedural guarantees, the presumption of innocence, and the classic parameters of judicial investigation can be destroyed by the simple word of the collaborating accused» «... It must also be taken into account that the prosecution (fiscalía) negotiates with subjects who could eventually continue to be part of the criminal organization or be related to it, so it is feasible that they supply false information, whether with the aim of diverting the investigation, delaying it, or leading it to failure, possibly giving rise, even, to an unjust conviction, issued against an innocent person» (emphasis added, 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).

In the same vein, regarding the “procedural frauds” that the collaborating accused can promote and the problem of their evidentiary value, it is warned that:

«To the list of reproaches is added the risk that the Administration of Justice may be used by ‘false repentants,’ who, with the aim of misleading the investigations, can compromise the dignity and safety of persons who have no connection whatsoever with the crimes» «It seems beyond any doubt that a criminal sentence can validly be based on the version supplied by a single witness, when the examination of their testimony in the specific case supports the analysis of the rules of correct human understanding. If this is so, and the statement of a co-accused against another has been admitted as a valid element of proof, one might question what the specific reproach is that is made to the figure regarding its evidentiary value. The basic objection consists of underlining that it is a highly interested statement aimed at harming the other defendants, and thereby obtaining an advantage in the process brought against them» (emphasis added, 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 is worth mentioning that Judge Camacho Morales, in his dissenting vote (voto salvado), also explained that in the processing and granting of the prosecutorial discretion criterion (criterio de oportunidad) to [Nombre026] there were infringements of due process; he even warned of this previously, with abundant reasons, from when the resolution of 1:30 p.m. on September 2, 2010, was issued in an interlocutory manner (cf. “Protests for defective procedural activity formulated before the appearance of [Nombre026] in the hearing on the basis of the prosecutorial discretion criterion are rejected,” Volume XXVIII, folios 13676 to 13736), a resolution in which he also drafted a dissenting vote (emphasizing the need to guarantee jurisdictional control over the application of that institution to the co-accused who did not benefit from that prosecutorial discretion criterion) to which he refers and cites literally in the present document (cf. pages 1944 to 1988), adding to what he had said on that occasion that it is clear that necessary information was hidden from the criminal judge to resolve the request for application of the prosecutorial discretion criterion. Judge Camacho Morales informs us that:

«The Public Prosecutor's Office (Ministerio Público) made a request to the Criminal Judge, hiding decisive information to establish the lesser culpability (reprochabilidad) and the necessary proportionality analysis in the application of the prosecutorial discretion criterion (criterio de oportunidad). Not mentioned in the request for the prosecutorial discretion criterion were other conducts that could be criminal and that were confessed by [Nombre026] and that emerge from expert report 297-DEF, documentary evidence No. 598, such as “royalties” for $110,207.00 and $29,833.95 received from Cibertec S. A. and Empaques Asépticos S. A. (folio 38). Also, money that [Nombre026] confessed to having received from [Nombre041] through check No. [Valor035] from account No. [Valor036] of the Banco de San José, belonging to [Nombre041], related to the La Joya power generation project, supposedly receiving a total of $56,000.00. This last fact is recorded in the complaint provided by the Technical Defense of [Nombre012] as evidence when raising defective procedural activity against the prosecutorial discretion criterion, in an interlocutory manner, a complaint that gave rise to case No. 08-000032-615-PE. In said documentation, there is a request for dismissal of the case where the prosecution (fiscalía) lists all the facts denounced against [Nombre026] by the co-accused [Nombre012], admitting that they have been the subject of investigation, but requests the dismissal of the complaint, under the argument that the exercise of criminal action against [Nombre026] was suspended due to the application of a prosecutorial discretion criterion and therefore the Attorney General (Fiscal General) has not incurred the crime of breach of duties. Based on said request, the complaint was dismissed. However, if the prosecutorial discretion criterion file is analyzed, it will be easily determined that in the respective requests directed to the Criminal Judge and in the unfounded resolution that grants the prosecutorial discretion criterion, none of the facts mentioned supra form part of said prosecutorial discretion criterion, so the suspension of criminal action that occurs as an effect of the application of subsection 22 b) of the Criminal Procedural Code (Código Procesal Penal) could not cover said facts, which were not presented to the Criminal Judge so that they could fully evaluate the situation of [Nombre026], and determine if the application of the requested prosecutorial discretion criterion was proportional, and above all, the lesser culpability of [Nombre026] in view of all the crimes for which the Public Prosecutor's Office had in mind to grant impunity to said co-accused, but which it omitted to bring to the attention of the Criminal Judge in the respective request, with the result that the Criminal Judge applied the prosecutorial discretion criterion solely and exclusively in relation to the facts included in the request, as expressly indicated in the resolution, by stating in the “Therefore” clause (Por Tanto) that “(…) the exercise of public criminal action is suspended in relation to the facts described in the first recital (considerando) of this resolution” (resolution of folios 41 to 89 of the prosecutorial discretion criterion file. The highlighting was supplied), so that the other facts to which reference has been made, not having been described in the request for application of the prosecutorial discretion criterion and therefore not forming part of the first recital of the resolution either, are and always have been outside the prosecutorial discretion criterion and regarding them, impunity has been granted to [Nombre026], allowing the extinction of criminal action due to the statute of limitations (prescripción), a situation that is evidently illegal and that the Public Prosecutor's Office has refused to correct, despite having been pointed out by the co-accused [Nombre012] in the mentioned complaint and by his Technical Defense in the hearing, at the time of raising defective procedural activity against the prosecutorial discretion criterion.

With the actions of the Public Prosecutor's Office, [Name026] has been granted impunity through a de facto, not de jure, application of the opportunity criterion (criterio de oportunidad), evading the necessary judicial oversight that must mediate in this regard." (Judgment, pages 1989 to 1990).

Judge Camacho Morales also informs us that in the negotiation of the opportunity criterion (criterio de oportunidad), [Name026]'s possession of million-dollar sums in US currency of allegedly illicit origin was legitimized, having been supposedly received as gifts (dádivas), disapplying and disregarding the legal provisions that establish that the destination of the proceeds of crime is and must be subject to confiscation (comiso), thus operating a legitimization of capital that allowed [Name026] to retain in his possession a significant portion of money and assets acquired as the product of the gifts (dádivas), an economic benefit that Judge Camacho Morales estimates at around two million four hundred thousand dollars ($2,400,000.00) (cf. judgment, pages 1990 to 1991). In this way, Judge Camacho Morales indicates, [Name026]'s statement was determined:

"[Name026] also had his fundamental rights violated and particularly his status as a person and the dignity inherent to it was disregarded. By negotiating with him an opportunity criterion (criterio de oportunidad) through illegal offers (economic benefit and absence of legal prerequisites for granting the opportunity criterion), he has been instrumentalized, degraded to the condition of an object, and used by the State's requesting body to achieve its unacceptable purposes, in a democratic judging system, to secure a conviction by resorting to means proscribed by law, the Political Constitution, and International Human Rights Law. The statement made by [Name026] and the formation of the will to make it, was determined in an openly illicit manner (Art. 96 of the Code of Criminal Procedure, Código Procesal Penal), for which reason he has been used by the Public Prosecutor's Office to achieve its ends, without considering that at the end of this process, if legality (minority criterion) prevails, [Name026] could always be subjected to trial, which is why a false expectation was created for him and the principle of swift and fulfilled justice was violated against him." "Thus, [Name026]'s statement is illicit evidence and cannot and must not be assessed to support any resolution (Art. 181 of the Code of Criminal Procedure, Código Procesal Penal)..." The facts said to be accredited in relation to Mr. [Name012] are described in Considerando III of the judgment, facts No. 84 to No. 114 (cf. Judgment, pages 995 to 1007). Facts No. 84 to No. 94 describe the alleged conversation that [Name026] and [Name012] had on the morning of December 4, 2000, at the latter's house, in which it is said that [Name026] told [Name012] about the gift (dádiva) proposal made to him by [Name035] and [Name015] the previous day at the "[...]" restaurant, in exchange for carrying out the necessary actions as director of ICE to promote the migration from TDMA technology to GSM technology, prevent the bidding process for the four hundred thousand lines from being aborted, and vote in favor of awarding said bid to the company Alcatel. There it is said that [Name012] approved [Name026]'s acceptance of the proposal from the Alcatel officials and arranged how the gift (dádiva) would be distributed between the two of them. These facts, according to the majority of the Court as duly accredited, are those held to constitute the crime attributed to [Name012], but the only direct evidence of that fact is the testimony of [Name026] (there is no independent element corroborating the truthfulness of his statement). It is important to bring up what Judge Camacho Morales tells us in this regard:

"The specific configuration of the referred facts is sustained exclusively by the statement of [Name026], which, as already stated, is illicit evidence and, even if it were not, would be insufficient by itself to demonstrate such facts, as resolved by constitutional and cassation jurisprudence. In ruling 12090 of 2009 at 14:40 hours on July 31, 2009, the Constitutional Chamber (Sala Constitucional), referring to the legitimacy of the crown witness (testigo de la corona), cites resolutions of the European Court of Human Rights indicating that the admissibility of the crown witness must be as an indicative source of evidence, so that the data or information provided requires the support of other means of proof. The Constitutional Chamber expressly indicated: "It is important to mention as a reference that the European Court of Human Rights, in a judgment of September 6, 1978, admitted the legitimacy of the crown witness or repentant witness. Subsequently, the same jurisdictional instance determined, according to decisions of September 27, 1990, and November 20, 1989, that its admissibility should only be as a source of circumstantial evidence, that is, the data or information provided requires the support of other means of proof. It becomes a means of investigation subject to confirmation, direct or indirect, of the data and circumstances provided concerning the investigated facts. These requirements do not diminish the collaborator's legitimacy, according to the jurisprudence of the European Court of Human Rights." (Emphasis supplied). Exactly the foregoing is the position taken by the Third Chamber (Sala Tercera) of the Supreme Court of Justice in ruling 136-2003, referring to the statement of an accused person who testified as a crown witness, denying it any value by itself to accredit the narrated facts, expressly indicating the need for evidence corroborating their version. In this regard, the Third Chamber stated: "The only element considered by the judge is the statement of co-defendant [Name048], who gave the names of two other persons as participants in the thefts, and describes the contribution of each and the places where they negotiated the stolen objects. However, this version was not corroborated with other elements, except with respect to the participation of the 'repentant' one, as objects suitable for committing this type of crime, and stolen goods, were seized from his car. The only thing linking [Name049] to the accused acts is the co-defendant's statement, which is insufficient. [Name050] depends on the outcome of this case for a dismissal (sobreseimiento) to be issued in his own."" "Given that, as already indicated, [Name026]'s statement is illicit evidence, but is also the only evidence with which the Public Prosecutor's Office seeks to accredit the criminal acts attributed to [Name012], and even if it were lawful evidence, it would not be sufficient to prove them, given the condition of crown witness and the benefit he expects to achieve with his statement, requiring additional evidence to prove such facts, which is not available, for all of which reasons, the facts in question were not demonstrated with any valid evidence." (Judgment, pages 1993 to 1995).

Judge Camacho Morales adds that for these same reasons, the sole testimony of [Name026] is also insufficient to prove the conduct attributed to co-defendants [Name018], [Name004], [Name001], [Name027], [Name021], [Name015], and [Name009] (cf. Judgment, pages 1996 to 1997). For this chamber, it is objectionable that the MP chose to apply the opportunity criterion (criterio de oportunidad) to [Name026] because it seems they failed to make an accurate prognosis of the blameworthiness that could reasonably be anticipated for each of the alleged agents before reaching trial. It has been said that this lack of discrimination can lead to situations as unacceptable as, for example, the perpetrator of a Homicide being favored with impunity in exchange for their confession incriminating 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 (Sala Tercera) has stated that:

"It is a requirement for the application of this criterion that the criminal action being waived is considerably less serious than the punishable acts whose prosecution it facilitates. This is so, because as previously indicated, impunity is not the goal sought with the application of the institute, but rather greater efficacy of the system. If the negotiation were allowed for a person with greater participation or who committed a more serious crime than the one intended to be prosecuted, there would be no proportionality between the punishment imposed and the event left unsanctioned. If the acts are of the same seriousness or participation, chance or arbitrariness would determine who is prosecuted and who is not. It is for this reason that the application of the criterion was established only for those cases in which the participation of the 'repentant' is less than that of the person desired to be caught, in the case of the same act, or the less serious crime when it is a different one. In the present matter, the opportunity criterion should not have been applied, since both accused had identical participation in the same act. According to the statement of proven facts, there were three people committing the thefts, dividing the functions such that [V.Z.] and [M.A.] entered the houses and took the objects, while [E.Q.] drove the car in which they traveled, waited for them outside the chosen homes, and then they fled the scene in that car. According to the evidence, they also traveled in the vehicle driven by [E.Q.] to sell the stolen objects, and the profits were shared among them all. It is evident that the three accused are co-perpetrators in the illicit acts. The selection of one defendant to be taken to trial, and another to apply an opportunity criterion to, was capricious and gives rise to arbitrariness and insecurity. The prerequisite that the participation of the 'repentant' be considerably less serious than that of the one intended to be prosecuted was not met" (the underlining is not from the original, Third Chamber (Sala Tercera), No. 2003-00136 of 9:20 on February 28, 2003).

The defendant [Name026] did not maintain a coherent version throughout the process, so much so that the inquiry (indagatoria) made of Dr. [Name012] was based on the first version that [Name026] maintained (according to which he incurred in the receipt of gifts (dádivas) without a prior promise for a completed act, with no other action by [Name012] than the receipt of gifts related to the money received by [Name026] from Alcatel), while the accusation and the oral trial (debate) were based on a different version, about which the defendant was not questioned (according to which he received a corrupt proposal that he accepted and therefore favored Alcatel in exchange for a subsequent gift (dádiva), with prior participation of [Name012]). Thus, Mr. [Name012] was not even notified of the exact charges (intimado) or questioned about the alleged meeting at his house, where he supposedly determined [Name026] to commit a crime, so that—as Attorney Gairaud reproaches—he was never charged for the conduct said to constitute the crime of instigation (instigación). The judgment asserts that [Name012] instigated [Name026], and this was not a fact known in the case file at the time [Name012] testified, but only eight months later, when [Name026] gave his second version of the facts. [Name026] himself acknowledges that he changed his initial version in his trial statement, and tries to justify it:

"That night at the Public Prosecutor's Office I assumed my responsibility and said that the offer had been after the award, it was a way of self-justifying, I was so confused and disoriented, but it was obvious that this statement would not stand on its own; that was because the Prosecutor's Office said it could not have been like that, to justify it, and that was when I clarified things, I said that the offer was not after the award but before" (Judgment, page 520).

"Yes, I said in that statement that I received the money or prize from Alcatel after the award by the board of directors, I believe I gave that version on September 30, 2004, I do not remember if I consulted my lawyer about it. What I have is a thin layer of legal knowledge, but I already explained here that the truth is different, I had already stated that here, what I said here is the truth. I did not lie, but rather I simply at that moment tried to cover myself or protect myself, but later I was clarifying. Alcatel offered me 1.5% or 2% [...] In that statement of September 30, I admitted my responsibility and gave a detailed description of them, in an eagerness to self-justify I indicated that the offer would materialize later, but later I was clarifying the point..." (Judgment, pages 543 to 544).

Later, he changes his version to confess an alleged Aggravated Corruption by Improper Bribery (Corrupción agravada por Cohecho impropio), a statement that precisely would allow him to obtain an expedited procedure (procedimiento abreviado) in May 2005. It is obvious that what he actually did was not "clarify the point" but substantially modify his version, for the benefit signified by an expedited procedure that ultimately was not even concretized because, through the opportunity criterion, he was granted impunity in exchange for testifying to his new version of the facts. Since the two indicated versions cannot both be true, at least one of them must have been false, so that we can state with certainty that he lied at some point to benefit himself, that in this way he obstructed the investigation of the truth, for which reason the trial court should have been more suspicious when analyzing and assessing his testimony. However, the majority overlooked this reality and trustingly considered that [Name026] testified disinterestedly to collaborate with the Administration of Justice. The majority vote, on the one hand, evades the problem concerning Mr. [Name012]'s inquiry (indagatoria) by saying that the defendant had to request to expand his first statement to refer to these "other" facts, as if it were the defendant's burden to ensure being duly charged. Attempting to claim that the defendant has the obligation to ascertain what fact is being attributed to him and to know the evidence against him is Kafkaesque. The charging notification (intimación) is part of due process (S-IV, No. 1739-92); the change in the facts for which he is being investigated compromises the defendant's right of defense; it is the Public Prosecutor's Office's responsibility to question the accused again, charging him with the new facts attributed. On the other hand, the majority ignores the lack of coherence of the defendant [Name026], evades the difficulty derived from his evident inconsistency, and rather gives it the character of full evidence, grants it full credibility, a matter of great impact on what the majority resolved, considering that concerning most of the proven facts, there is no other piece of evidence corroborating [Name026]'s sole statement. There are grounds to reasonably suspect that [Name026] changed his version throughout the process to obtain different procedural benefits (house arrest instead of pre-trial detention, the possibility of agreeing to an expedited procedure, and finally obtaining a principle of opportunity (principio de oportunidad)). It is reasonable to suspect that he sought his impunity at all costs, including testifying against third parties (especially against [Name012]). His was a self-interested statement, therefore the court necessarily had to be more suspicious and rigorously examine whether there were other independent pieces of evidence confirming or corroborating [Name026]'s statement on the issues of fact of criminal relevance.

[Name026] did not have to swear to tell the truth; he testified as a defendant assisted by a defense attorney, abstaining from testifying or answering questions posed to him; his defense attorney—seated beside him—even spoke into his ear before he answered, as observed in the audiovisual record of the corresponding hearings of the oral trial (debate). The majority itself records in its resolution that [Name026] abstained from answering questions posed by the lawyers of the defendants [Name012], [Name015], and [Name021], but the judges say that this does not detract from the credibility of his account, either because they were questioning him about self-incriminating facts (cf. Judgment, pages 1642 to 1643), a criterion that this chamber does not accept as valid, because if the criminal actor has completely waived criminal prosecution against him, it is assumed that it has been precisely so that he collaborates with the investigation of the material truth. On the other hand, even when [Name026] incurs contradictions (which he attributes to "confusions") that the defense points out to demonstrate that he is unreliable, the majority of the court chose to excuse him, as for example on page 1723:

"[Name026] relates that these were dates of emotional confusion for him and that is why he made the mistake of indicating that the delivery was in cash, when the truth is that it was as he declared in the oral trial (debate), that is, resorting to the investment certificates of money belonging to his mother because his funds from Alcatel deposited in the Saint Georges Bank had been blocked. For this panel, the cited explanations are valid according to the rules of logic and common experience due to the various banking movements made by [Name026] to proceed with the respective deliveries of money to [Name012], added to which it has been corroborated, according to his oral statement and the documentary evidence, that the described amount was not delivered in cash but through 7 bearer certificates..." (Judgment, pages 1723 to 1724).

Finally, regarding the substance of his statement, concerning what [Name026] says happened, his statement is not reliable either, for he says he did not accept the offer until [Name012] gave him his approval, this being so, he explains, because when they made the proposal he replied that he alone could not do what they asked for in exchange for the offered "prize," that he could not "direct the criteria of six colleagues on the board of directors" because it was "something very big [...] and required a higher level beyond my capabilities." He says he assumed he would have to count on [Name012]'s promise, that if Mr. [Name012] had said no, he would "abort the situation" (cf. judgment, page 502), but later it turns out that neither he nor [Name012] had to do anything to direct other members of the board, according to what [Name026] himself says:

"The award in favor of Alcatel was unanimous, if there was any member of the board of directors with a dissenting position, they did not make it public. No one presented an objection. My action to award the bid to Alcatel was to cast a vote, I had no more importance than the rest of the directors and for that reason, if there was dissent, the interference of the President of the Republic was important, in case the rest of the directors had another direction. I do not know if the eventuality arose because that is up to the President" (judgment, pages 539 to 540).

"I do not know if he [[Name012]] did something or did not do something" (sic, judgment, folio 548).

It is very suspicious that he claims he required [Name012]'s approval to achieve a result that, in the end, occurred without requiring any "direction of course" from him. There is no piece of evidence indicating that [Name012] helped in any way for [Name026] to fulfill what the corruptors asked of him. All this allows reasonable doubt that the alleged participation that [Name026] attributes to [Name012] was real, as it is plausible to suppose that it could well be a false accusation, arranged to simulate the existence of a more blameworthy defendant than himself and thus be able to obtain the benefits derived from the opportunity criterion (criterio de oportunidad) as a collaborating defendant. One could even suppose that at the time [Name026] tries to introduce [Name012]'s alleged participation, his influence was already unnecessary. c.- Conclusion.- As we said before, the defendant [Name026] is the only eyewitness to the alleged form of participation that he attributes to [Name012] (having instigated or determined him to commit the crime of Aggravated Corruption in the modality of Improper Bribery) and his statement is the only direct evidence of that alleged fact which constitutes nothing less than the core of the accusation, a circumstance that underlines the need for caution when analyzing and assessing the credibility of his statement, which—being a collaborating witness—required to be confirmed or corroborated by independent pieces of evidence, not regarding secondary circumstances, but with respect to the essential elements of his statement, a condition prescribed by constitutional jurisprudence itself that was not met in this matter. The mere circumstance that the alleged protagonists of the act—[Name035], [Name015], [Name026], and [Name012]—were in Costa Rica on December 3, 2000 (according to the study of their immigration movements, expense reports, and travel itineraries, made by the majority of the court in the judgment, cf. pages 1685 to 1690, a subsection titled "Verification of [Name026]'s statements regarding the meeting at [...] and at the home of the defendant [Name012]"), which was the day on which [Name026] claims to have spoken alone with [Name012] at his house, is not evidence that corroborates that [Name012] "approved" [Name026]'s acceptance of Alcatel officials' proposal; it is an indication so ambiguous or equivocal that, by itself, it could simply be a coincidence. Nor could the alleged fact that circumstances made it urgent for [Name026] to do what his corruptors asked (cf. Judgment, pages 1691 to 1693) be considered an indication that [Name026] told the truth in attributing participation to [Name012]. Finally, the existence of documents corroborating that [Name026] transferred money to [Name012] does not necessarily confirm that [Name026] told the truth, because they would also allow corroboration of [Name012]'s defense, who explains that its cause is a personal loan that [Name026] made to him and which he accepted because he considered that the latter's fortune was legitimate. The absence of objective elements corroborating [Name026]'s statement, regarding the approval and indications he says he received from [Name012], is patent. The majority of the trial court minimized that the temptation to obtain impunity for one or more of his own acts could have determined the defendant [Name026] to falsely incriminate other persons as participants, that his interest could have been great enough to motivate him to deceive the Public Prosecutor's Office and the judges with lies, even slandering an innocent person, falsely accusing him as a co-perpetrator or participant (accomplice or instigator), if in this way he could minimize or evade his personal responsibility. The suspicion of mendacity of the collaborating defendant concerning the other person's act, the reason for his discredit, is a common place in the doctrine, and all the citations included in this section are to illustrate to the reader why it is considered that the collaborating defendant is not a suitable witness (for lacking the will to tell the truth and, rather, having the will to deceive). The very nature of the crimes attributed to [Name026] is an objective factor that allows reasonable suspicion of him, for if it is precisely affirmed that he deliberately failed in the duties of the public function entrusted to him, lowering it to a means to act corruptly and enrich himself, it is plausible to suppose that he lacks the moral sense that sincere repentance entails, especially if other objective factors concur, such as the high prison sentences that could be imposed on him, the magnitude of the economic damage caused, which together can motivate him to be interested in informing on or even slandering third parties if by doing so he mitigates the rigors of the penal system or obtains a procedural advantage as appreciable as impunity; plus the possibility of retaining, through this route, a large part of the money and assets acquired through the received gifts (dádivas). And if to the foregoing it is added that [Name026] has incurred contradictions, that he has been substantially and conveniently modifying his version of the facts (which regarding the substance is also unreliable), it will be understood why this chamber considers him unworthy of the credibility granted to him by the majority of the trial court. [Name026] did not act or testify in a sincere and disinterested manner, nor did he do so "...so that situations like his would serve as social reflection" (Judgment, pages 1632 to 1633). The majority of the trial court considered that "his statements are totally credible and disinterested" (Judgment, page 1642); this assumption of the judges is not anchored in any objective element. On the contrary, the process of change evidenced in his version of the facts is an objective factor that allows reasonably supposing that he acted in a biased or selfish manner, motivated by his own interest or convenience. B) Extinction of criminal action (prescription, prescripción). In this matter, there was an erroneous application of the rules relating to the regime of prescription (prescripción) of the criminal action. Prescription is one of the causes for extinction of criminal action (Article 30, subsection e of the CPP) and it is worth remembering that the Constitutional Chamber (Sala Constitucional) has referred to the nature of the institute of prescription in the following terms:

"This Chamber has indicated on multiple occasions that the prescription of criminal action constitutes a procedural sanction against the inertia of the Administration of Justice, whose immediate objective is to guarantee legal certainty, both for the subjects involved in the case, and for the community in general" (Constitutional Chamber, No. 856-2001 of 15:18 hours on January 31, 2001).

Article 62 of the "Ley contra la corrupción y el enriquecimiento ilícito en la Función Pública" (Law No. 8422 of October 6, 2004, effective as of its publication in La Gaceta No. 212 of October 29, 2004), reformed the prescription regime for crimes against the duties of the public function, in the following terms:

"Article 62.-Prescription of criminal liability. The criminal action regarding crimes against the duties of the public function and those provided for in this Law, shall prescribe in the manner established by applicable legislation; however, the following rules shall govern:" "a) Once the prescription is interrupted, the time limits set in Article 31 of the Code of Criminal Procedure shall 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 criminal action may be interrupted by the declaration of illegality of the administrative function, active or omissive, or by the annulment of administrative acts and contracts related to the corresponding crime, whether the ruling is made in judicial or administrative proceedings." It is obvious that subsection a) of Article 62 of Law No. 8422 introduced a significant exception to the provision of the first paragraph of Article 33 of the Code of Criminal Procedure (reformed by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2001) as the legal effect of the interruption of the prescription period:

"Once the proceeding has begun, the time limits provided in the article before last shall be reduced by half for their calculation, for the purpose of suspending or interrupting the prescription..." It has been discussed throughout the process whether subsection a) of Article 62 of Law No. 8422 is applicable to this matter, specifically whether, once the prescription is interrupted, the time limit set in Article 31 of the CPP runs again for a new period, with or without any reduction.

This is a problem of the application of law over time, which is resolved by the direct application of two norms of our Political Constitution, namely, articles 34 and 129, which read as follows:

«Article 34.- No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations.» «Article 129.- Laws are obligatory and take effect from the day they designate; in the absence of this requirement, ten days after their publication in the Official Gazette.» «No one may plead ignorance of the law except in cases authorized by the law itself.» «The waiver of laws in general has no efficacy, nor does the specific waiver of those of public interest.» «Acts and agreements contrary to prohibitive laws shall be null, unless the same laws provide otherwise.» «A law is neither abrogated nor derogated except by a subsequent one; disuse, custom, or practice to the contrary may not be alleged against its observance. By way of referendum, the people may abrogate or derogate it, in accordance with article 105 of this Constitution.» (Thus amended this last paragraph by Article 1, subsection d) of Ley 8281 of 28 May 2002, published in La Gaceta No. 118 of 20 June 2002).

Pursuant to these norms, article 62 of Ley N° 8422 cannot be given retroactive effect to the detriment of the accused, and it must be considered obligatory and effective from the day that law designates, which is that of its publication, occurring on 29 October 2004. By that date, the interruption of the limitation period in the case of Dr. [Nombre012] had already occurred, which was the first formal charging of the facts (pursuant to article 33, subsection a of the Code of Criminal Procedure), for which reason the limitation period was reduced by half and began to run anew from 15 October 2004 (the day on which the accused's investigatory statement was taken), because that is the effect provided for in the law in force at the time of the interrupting act. The initial limitation period for the criminal action, in the case of Dr. [Nombre012], is five years (according to the relationship of articles 31 and 32 of the Code of Criminal Procedure; 46, 74, 340, and 342 of the Penal Code, since the maximum term of the penalty is five years, as he is accused of "Instigation to the crime of Aggravated Corruption in the modality of Improper Bribery"). Once the proceeding began, that period is reduced by half for the purpose of computing it in order to suspend or interrupt the limitation, and it was interrupted by the investigatory statement of 15 October 2004 (cf. Volume II, folios 552 to 558), giving rise to a new period reduced by half (that is, two years and six months) beginning to run, which elapsed without any cause for suspension of the criminal action intervening and which was completed on 15 April 2007. The next interrupting act provided for in the law was the order convening the preliminary hearing for the first time (article 33, subsection c of the CPP), an event that did not occur until 10 September 2007 (by order of 1:30 p.m. on 10 September 2007, cf. Volume XX, folios 8452 to 8453), which is why the extinction of the criminal action by limitation did indeed occur in the case of Dr. [Nombre012]. Now then, this Chamber does not overlook that the final paragraph of 376 of the Code of Criminal Procedure indicates that:

«When the application of the complex proceeding is ordered during the preparatory or intermediate phases, the reduction of the limitation term by half, provided for in article 33 of this Code, shall not apply» (Thus added by Ley N° 8146 of 30 October 2001, published in La Gaceta N° 227 of 26 November 2001).

However, it is not sufficient that the order determining the matter is of complex processing be issued during the preparatory or intermediate phases for the reduction of the limitation term by half not to apply, as it is evident that it cannot be applied with retroactive effect to cases in which a cause of interruption has already occurred that—for the benefit of the accused—reduced the term by half, as happened in this matter, since the order determining that it is of complex processing was not issued until 3 March 2006 (by order of 3:00 p.m. on 3 March 2006, cf. Volume XVII, folios 7506 to 7566) and became final by means of Voto N° 403-06 of 1:30 p.m. on 23 June 2006, cf. Volume XVII, folios 7703 to 7707), because the issuance of that order cannot revoke or annul the legal effect that the law itself assigns to an interrupting act already completed. We must bear in mind that the rule is that orders are not executed during the period for appeal and while the appeal is being processed, unless there is a legal provision to the contrary (article 444 CPP). The second paragraph of article 379 of the CPP emphasizes that:

«The Courts shall especially ensure that the application of the special rules [of the proceeding for complex processing matters] does not distort the principles and guarantees provided for in the Constitution, in the International or Community Law in force in Costa Rica, and the law.» If the order determining that the matter is of complex processing (having been issued during the preparatory or intermediate phases) is retroactively attributed the legal effect provided for in the final paragraph of article 376 CPP, this would infringe the cited constitutional norms governing the application of law over time and the very principle of legality provided for in article 1 of the CPP, unjustly giving the Public Prosecutor's Office—and the court itself—the opportunity to circumvent that procedural sanction which is the limitation of the criminal action.

Furthermore, there are Costa Rican legal works that analyze the scope of the final paragraph of article 376; this concerns the academic opinion of two recognized jurists (both former substitute magistrates of the Third Chamber, former judges of the Court of Criminal Cassation, and professors of the Faculty of Law of the University of Costa Rica) that were brought to the attention of the court by the defense attorneys, specifically the following texts by licenciada Rosario Fernández Vindas and Doctor Javier Llobet Rodríguez. The former explains:

«In accordance with this, if the proceeding is declared of complex processing after the ‘first formal charging of the facts to the accused in crimes of public action,’ an act which, in accordance with numeral 33, subsection a) of the C.P.P., entails the interruption of the limitation of the criminal action, for a term reduced by half, this reduction must apply, since at that moment the proceeding would not be of complex processing but rather simple. In summary, it is not appropriate to give retroactive character to the said complex declaration, for the effects of the exception established regarding the limitation of the criminal action, as this is connected to the performance of certain acts, which ultimately determines whether the reduction of the time to be considered for the criminal action to prescribe applies or not, such that if the interrupting act of the limitation of the criminal action occurs under the validity of the declaration of complex processing of the proceeding, issued in the preparatory or intermediate stages, that reduction does not operate, and the full period must be counted from that point forward; on the contrary, if the act that interrupts that limitation occurred when the complex processing of the case had not been ordered, that is, when the proceeding was conducted according to the general, simple procedure, the reduced limitation period must apply, which would remain in effect as long as no other act with the power to interrupt that limitation occurs, which, if it occurred once under the authorization of complex processing, and, therefore, under the exception situation, would mean that the period of interruption of the limitation of the criminal action must be counted in full (not reduced by half) from that specific act onward» (underlining supplied, 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, 1st ed., San José, 2007, pages 923 to 924).

For his part, regarding the third paragraph of article 376 of the CPP, Doctor Llobet Rodríguez comments the following:

«This paragraph was introduced in the reform of Ley 8146 of 30 November 2001. The correct approach is that the non-application of the reduction of the period cannot be applied retroactively, so that when a cause of interruption of the limitation occurred before the declaration of complex processing, the period that continues to run is reduced by half. In that scenario, when a new cause of interruption of the limitation occurs after the declaration of complex processing, then the provision that the limitation period is not reduced by half does operate, so that the period that runs from this interruption onward is complete (on this, see: Cf. Fernández Vindas. Procedimiento..., pp. 923-924)» (underlining supplied, LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4th ed., San José, Editorial Jurídica Continental, 2009, p. 567).

However, for the trial court, the declaration of complex processing does have, once it becomes final (23 June 2006), the effect provided for in the final paragraph of article 376, that the reduction of the limitation term by half, provided in article 33, does not apply; it so resolved—unanimously—in its order of 8:00 a.m. on 14 May 2010 (cf. Volume XXVII, folios 13352 to 13408 verso). In that order, the following is stated:

«The last paragraph of numeral 376 of the Code of Criminal Procedure was included by a reform effected by Ley N° 8146 of 30 October 2001, published in La Gaceta N° 227 of 26 November 2011, so it is and has been a norm in force for several years before this proceeding began, which dates from late 2004, and before the accused gave their respective statements, all of which were given starting from the month of October 2004. While it is true that the reduction of the limitation period by half initially operated at the moment the first interrupting act of the limitation occurred (declaration of the accused, pursuant to numeral 33, subsection a) of the Code of Criminal Procedure), at which time the proceeding was being processed as ordinary, the truth is that the defendants have been aware since that very moment and since the cited procedural reform was published, in principle, that said reduction could become ineffective if the proceeding became processed as complex, since numeral 376 so established. Therefore, the validity of the reducing effect on the limitation period was always subject to the proceeding continuing to be processed as ordinary and that it would be lost if the rules of complex processing were applied, unless, of course, the limitation period had been completed before that event, because in such a case, all the circumstances that would extinguish the criminal action by limitation would have been configured, according to the rules of the ordinary proceeding, and it should be declared as such, insofar as the accused's legal situation became fully consolidated, without the application of the complex processing being able to reverse that state of affairs, regarding which the subsequent order that recognizes it has declaratory and not constitutive effects.» «Thus, the elimination of the reducing effect by half of the limitation period in those cases whose ongoing limitation period had not been completed at the moment the declaration of complex processing became final does not constitute any retroactive application of numeral 376 of the Code of Criminal Procedure, nor of the judicial order that applies it, nor an affectation of the principle of legal certainty, because the accused, from the beginning of the proceeding, knew what to expect in this regard» (Volume XXVII, folio 13364).

That reasoning contravenes the cited constitutional norms; its conclusion is fallacious, because the mere validity of the final paragraph of article 376, since it was added by Ley N° 8146 in 2001, does not imply that the accused could foresee—much less that they had to accept or "expect"—that the court would give a retroactive interpretation and application to that norm to "reverse" the effect of an interrupting act completed before the order determining the matter to be of complex processing was issued. If the trial court itself admits that the limitation of the criminal action "is a sanction for inertia in processing and judging" (cf. Judgment, folio 788), it is not understood how it opts for an interpretation that circumvents the meaning of that cause of extinction of the criminal action, giving the prosecutor and the court itself the possibility to "reverse" that effect so that the criminal action is, so to speak, reborn, and by that means elude the procedural sanction.

However, it is with that criterion that in that order of 14 May 2010, the case of each of the accused was analyzed, resolving the following:

«Unanimously, the exceptions of limitation filed in favor of the accused [Nombre004]; [Nombre001]; [Nombre007], [Nombre009], [Nombre018], [Nombre015], and [Nombre021] are rejected. The exceptions of limitation interposed in favor of [Nombre024] and [Nombre012] are reserved for the moment of judgment.» (Volume XXVII, folio 13407 front and verso).

In issuing the judgment, the court retakes the topic in the Considerando II of the judgment, section A), which it titles "Exception of limitation of the criminal action in favor of the accused [Nombre007], [Nombre021], [Nombre024], and [Nombre012]" and resolves with the same criterion (although this time by majority vote, since Judge Camacho Morales dissented on this point), reiterating that it is not a retroactive application of the law, but rather "the immediate effect of a procedural stipulation in a pending criminal case," making a convoluted argument that the principle of non-retroactivity only applies to substantive criminal law, not to procedural norms or institutes, such as limitation (cf. judgment, pages 786 to 800), an argument that in any case—for this chamber—does not justify or authorize disregarding the legal effect (immediate, one might say) produced by the investigatory statement according to the legislation in force at the moment that interrupting act occurred. Judge Camacho Morales, as stated before, dissented on this question, modifying the criterion he had previously shared with his colleagues in the order of 14 May 2010 (cf. dissenting vote, judgment, pages 1997 to 2012) and relies on case law that is pertinent to mention. In the first place, he cites the Constitutional Chamber, according to which:

«Since the proceeding is a sequence of singular acts previously regulated by law, the new legislation can perfectly govern the acts that are carried out after its effectiveness, and the previous law governs the acts carried out under its formal validity, prior to its derogation, so that each act is valued according to the law in force at the time of its performance» (Constitutional Chamber, N° 4397-99 of 4:06 p.m. on 8 June 1999).

He also mentions a judgment of the Court of Cassation, which refers specifically to the application of article 62 of Ley N° 8422, and states:

«Such a norm is effective only from its entry into force for cases in which one of the interrupting acts that the procedural regulations provide for occurs, and provided that the term had not already been reduced beforehand as was provided, since procedural acts are governed by the procedural law that is in force at the moment they occur and not by those that had already occurred. In other words, the entirety of the limitation period could not be restored based on a norm that was not yet in force at the moment when, according to the legislation that did govern, a cause with reducing effect occurred» (Court of Criminal Cassation, N° 2006-0132 of 10:30 a.m. on 23 February 2006).

According to everything stated in this section, this Chamber considers that the trial court erroneously applied the rules concerning the limitation of the criminal action, because in this case the extinction of the criminal action in favor of Dr. [Nombre012] did indeed occur. The undersigned of this judgment consider that the Public Prosecutor's Office belatedly requested the application of the special rules provided for the so-called "Proceeding for complex processing matters" provided in articles 376 to 379 CPP; if it had requested it in a timely manner, it could have prevented the limitation period from being reduced by half. It is another detail that, together with the manner in which the opportunity criterion was granted to [Nombre026], denotes the deficient management of the criminal action in this case by the Public Prosecutor's Office. For all the reasons indicated, the appeal is declared with merit, and the criminal action is declared extinguished because the limitation has occurred. The nullity of documentary evidence No. 588 and all evidentiary elements that depend directly on it is declared. The criminal conviction judgment issued against Mr. [Nombre012] is annulled, and in its place, he is directly acquitted of all penalty and responsibility, since due to the nullity of the essential evidence and the limitation, it is impossible to order the repetition of the trial or the ruling regarding the criminal action, for which reason a direct resolution must be made (article 465, third paragraph of the CPP) on the basis that his guilt was not proven by a final judgment, pursuant to article 39 of the Political Constitution. The challenged judgment remains intact insofar as it acquitted him for four crimes of Illicit Enrichment. Regarding the civil aspect of the judgment, we must abide by what will be stated in Considerando VI, in which the appeal filed by licenciado Cristian Arguedas Arguedas in favor of Dr. [Nombre012] is resolved. Due to the manner in which it has been resolved, it is unnecessary to rule on the other claims that the appellant raises in his appeal, since his corresponding claims have been addressed.

III.- APPEAL OF LIC. RAFAEL ENRIQUE GAIRAUD SALAZAR.- Lic. Gairaud Salazar, defense attorney for Mr. [Nombre012], has expressed his disagreement with the judgment through various writings, the first of which is an "appeal" filed on 2 June 2011 (cf. Volume XXXV, folios 16894 to 16905). The second is a "cassation" appeal filed on 4 August 2011 (cf. Volume XXXVII, folios 17840 to 17907). The third is an "appeal of judgment" (cf. folios 172768 to 172837), through which Lic. Gairaud Salazar adapts his previous claims to an appeal of criminal judgment, in accordance with Transitorio III of Ley N° 8837 of 3 May 2010 ("Creation of the appeal of judgment, other reforms to the challenge regime and implementation of new rules of orality in the criminal proceeding"), requesting to include that first appeal he initially filed. He warns that in the majority vote of Judges Rosaura García Aguilar and Ileana Méndez Sandí (Judge Jorge Camacho Morales dissented), there are evident errors in the determination of facts, in the incorporation and valuation of evidence, the reasoning is contrary to due process, and the penalty imposed on his client is disproportionate and contrary to law, because the accredited conduct is atypical of the crime of Instigation to Aggravated Corruption he is accused of. He denounces the non-observance of articles 22, 142, 175, 178, 184, 204, 361, 363 subsection b), and 369 subsections c), d), and j) of the Code of Criminal Procedure; 62 of the Law against corruption and illicit enrichment; of the Universal Declaration of Human Rights and the American Convention on Human Rights ("Pact of San José"); and of articles 47, 71, 340, and 342 of the Penal Code. He requests that the judgment be declared ineffective and invalid and that referral for a new substantiation be ordered, or that the acquittal of [Nombre012] be directly issued, for the following reasons. A) Lack of reasoning and violation of sound rational criticism. The majority did not provide reasons for its decision. Neither did it explain the value assigned to a large part of the evidence, which was not even analyzed, but simply mentioned by the ruling, despite the express request of the defense to do so. The majority gave full evidentiary value to the statement of the collaborating defendant [Nombre026], omitting to consider that his testimony was not corroborated by any other means of evidence. Nor is it appreciated that, according to [Nombre026]'s own testimony—in the sense that he accepts in principle the corruption proposal made to him in the restaurant [...]—it is evident to deduce that he was determined to commit a crime from the very moment he accepted the proposal, long before the supposed meeting with [Nombre012], and that what he supposedly required from the latter was to help him in case the "matter got complicated," something that never happened, according to what [Nombre026] tells us. Since [Nombre026] had accepted the offer of a gift, it is evident then that [Nombre026] was already determined before supposedly speaking with [Nombre012], so it is not possible to consider the latter as the instigator of anything. The majority takes everything [Nombre026] declares as true and does not even fully specify the circumstances of mode, time, and place in which the crime was supposedly consummated, nor what the supposed help from [Nombre012] consisted of. It omits to resolve the questions that the defense made of the application of the opportunity criterion in favor of [Nombre026], alleging lack of competence, which is not only illegal but a waiver of the powers of the appealed authority, given that the court is obligated to resolve all the debated questions. [Nombre026] could not benefit from said opportunity criterion because his culpability is equal to or greater than that attributed to his client: "...this is evidenced—says the appellant—when in the analysis of the civil action the Court itself, unanimously points out the impossibility of establishing a single joint and several liability among the supposed participants, pointing out independent chains of responsibility, with [Nombre026] appearing in two of them, while my client in only one, this to derive from the judgment itself the greater culpability of [Nombre026], without counting that [Nombre026] is identified as the PRINCIPAL PERPETRATOR and my client a simple participant, that [Nombre026] had DOMINION OVER THE ACT absolutely and my client did not, that [Nombre026] committed many more crimes than the one related to the contracting of the 400 thousand cellular telephone lines, which shows that it is clear and transparent that [Nombre026] was not eligible to benefit from the impunity agreed upon by the opportunity criterion because he does not have a lower culpability than my client, none of this was known by the Court in its majority composition, since it illegally breached its duty as controller of legality of the acts of the debate and refused to hear the appropriateness or not of the institute, as well as that the statement of [Nombre026] was invalid..." Likewise, an erroneous application of article 62 of the Law against corruption and illicit enrichment is made, approved long after Mr. [Nombre012] ceased being a public official and therefore not retroactively applicable to him, as the majority that imposed a conviction in this proceeding illegally did, contradicting a prior interlocutory order that they themselves had issued, noting that for the case of [Nombre012], all that had to be done was the precise determination of the applicable criminal type. He also reproaches the rejection of the defense's argument regarding the facts for which [Nombre012] was investigated: "The court does not consider the content of the defense's protest that noted that Mr. [Nombre012] was investigated based on the initial declaration of [Nombre026], something that he himself acknowledges in the debate, in which he claimed in his favor to have incurred the receipt of gifts for a fulfilled act, while the accusation and the debate concerned a supposed act of Aggravated Corruption, evidently these are absolutely diverse facts, some for which our client was investigated and others for which he is tried, violating the principles of inviolability of defense, due process, and notification, the majority vote evades the problem with an absurdity that the defendant could expand his declaration on these other or new facts, which I repeat is absurd because the burden of the accusation corresponds to the accusing body not the defense, so the problem is not resolved and the unquestionable fact subsists that the ex-president was not investigated for the facts for which he was tried. In his first statement, [Nombre026] never says that he received a corruption proposal, that he accepted it, and that for that reason he favored ALCATEL, for a subsequent gift; as is his initial declaration, our client is investigated, but later he is tried for facts that [Nombre026] related afterward and for which my client WAS NEVER INVESTIGATED...", which invalidates the entire proceeding. The evidence allows for sustaining the non-existence of an illicit action by [Nombre012], but the court, in an absurd and illogical manner, assigns the spurious version of [Nombre026] the character of full evidence and gives it full credibility. Regarding the imposed penalty, the lack of reasoning in the majority vote is evident; it is absurd to impose the maximum penalty on a simple participant when the principal perpetrator is granted absolute impunity. As evidence, he requests a) the videos of the conducted debate, to prove the real version of [Nombre026] at trial and the acceptance of the moment of consummation of the crime; b) that the statement of the convicted defendant [Nombre027] be received so that he refers to the existence or not of a corrupting proposal by Alcatel (cf. appeal in Volume XXXV, folios 16894 to 16905). B) Violation of due process in the fixing of facts. If the defendant with opportunity criterion, [Nombre026], acknowledges that he "accepted in principle" the proposal made to him by Alcatel officials (proven fact 88), the crime was consummated; the supposed instigation attributed to [Nombre012] at a later time is not possible. The proven fact, in any case, cannot be considered accredited by the sole testimony of the collaborating defendant [Nombre026]. If the court had doubt about the meaning of the phrase "in principle," it should have opted for the interpretation most favorable to the accused, by application of the principle in dubio pro reo (cf. appeal, Volume XXXIX, folios 172770 to 172772). C) Violation of due process in the incorporation and valuation of evidence. This is so because the declaration of [Nombre026] is taken as a means of evidence and not as a means to obtain evidence; upon incorporating it, it is given the value of full evidence and based on his sole testimony, facts of relevance are taken as accredited, such as the supposed meeting and the supposed acceptance attributed to [Nombre012] (cf. appeal, folios 172772 to 172773). D) Violation of due process in the fixing of the penalty.

The majority confirms the impunity of [Nombre026] and instead imposes the maximum penalty on [Nombre012] for conduct that does not even constitute the crime of instigation, but even if it is considered criminal, it is evident that it constituted minimal participation, so the penalty does not reflect the criteria of proportionality and reasonableness established in our law, and therefore requests that it be reduced to the minimum and that the benefit of conditional execution of the sentence be granted (cf. appeal, folios 172773 to 172774). E) Lack of reasoning in the sentence issued by the majority, proven facts No. 71 to 75 have no evidence other than the mere statement of the cooperating defendant [Nombre026], which was not corroborated or validated by any lawful means of evidence obtained through him (as a "source of evidence"). The lady judges do not explain how [Nombre012] "requested" and then "ordered" [Nombre026] to arrange payments from Alcatel. In the case of the co-defendant [Nombre018], there are several supposedly circumstantial elements that corroborate [Nombre026]'s statement about his participation, but the same is not true regarding [Nombre012], as no reference is made to any element of evidence that directly or circumstantially corroborates what [Nombre026] says. He testified as a defendant, enjoyed all the rights and guarantees of that condition, being assisted by a defender and allowed to abstain from testifying in response to the questions posed to him, even allowing his defender to whisper answers to him and he simply repeated them, something that in any legal model is absurd, since the defender cannot answer for the defendant (requests that the video of [Nombre026]'s statement under cross-examination by the defense be viewed). It is clear that [Nombre026] sought his impunity at all costs, testifying against third parties, so his was a self-interested statement, and therefore it was necessarily required to have other means of evidence to support his statement. [Nombre026] changed his version from September 31, 2004, when he confessed an alleged receipt of gifts as he himself indicates in his trial testimony transcribed in the sentence when he states: "Yes, I said in that statement that I received the money or prize from Alcatel after the award by the board of directors, I believe I gave that version on September 30, 2004, I don't remember if I consulted my lawyer about it. What I have is a veneer of legal knowledge, but I have already explained here that the truth is different, I had already indicated that here, what I said here is the truth. I did not lie, but simply at that moment I tried to cover myself or self-protect, but later I clarified. Alcatel offered me 1.5% or 2% [...] In that statement of September 30, I admitted my responsibility and gave a detailed description of them, in an effort to self-justify I indicated that the offer would materialize later, but later I kept clarifying the point..." [Sentence, pages 543 to 544], which he later changes to confess an alleged Aggravated Corruption by Improper Bribery, a statement that is precisely given to grant him an abbreviated procedure, with only four years of imprisonment, when the prevailing jurisprudence was based on the principle that "house arrest" did count towards the sentence, such that [Nombre026] would have served half the sentence and could request the application of the benefit of Article 55 of the Criminal Code, by the time he provides his second version of the facts, but that house arrest, strangely, when no other defendant was subject to precautionary measures restricting their freedom of movement, for the cooperating defendant was maintained until the moment the possible sentence to be imposed, according to that jurisprudence today totally discredited by the Third Chamber, would have been completely served. [Nombre026] obtains the application in his favor of the opportunity criterion by virtue of that new statement, thereby obtaining impunity not only for the crime the Prosecutor's Office links with [Nombre012], but for seven or eight more crimes, some related to the Alcatel company itself for money received as a result of corruption [cites the testimony of the OIJ expert, [Nombre036], who testifies that [Nombre026] received money before and after the four hundred thousand lines, without it having been established that he required external support to receive that money], as the Prosecutor's Office stated during the process, only to later retract, but at a time when all these crimes are time-barred or in the process of becoming so. [Nombre026] did not provide any independent means of evidence to support his statement, it is not true that from his first statement he demonstrated an evident purpose of collaborating with the Administration of Justice, because the truth is that in one of his two versions he lied because they were mutually contradictory. In the first version he says that Alcatel officials contacted him to offer him a gift after the award of the four hundred thousand lines, in his second version he says they contacted him before the award: "How to say - questions Mr. Gairaud Salazar - that [Nombre026] collaborated with Justice from the beginning, if he would then declare, to obtain the benefit of the abbreviated process or the opportunity criterion, that he was contacted before the award and was offered the gift, at a time when, enjoying house arrest, he was first offered an abbreviated process with a meager penalty (while my client was given the maximum penalty as an alleged instigator), and then an opportunity criterion that grants him ABSOLUTE IMPUNITY, when identified by the Prosecutor's Office in closing arguments, as a DIRECT PERPETRATOR WITH FULL DOMINION OVER THE ACT. In this regard, we must say that if both versions are diametrically different, in one of them [Nombre026] lies. If it is in the first, his interest was not to collaborate with the Administration of Justice, but to hinder it, obstruct it, and if it is in the second, he similarly lies in a self-interested manner, to obtain a benefit, and thus the questioning, supposedly excluded by the majority judges, that his interests in testifying are spurious is fully corroborated, against the naive and biased version of the majority vote." Facts No. 85 to 93 that are held as proven against [Nombre012] lack legitimate reasoning, because [Nombre026]'s statement alone is not enough, rather the trial court needed to have independent evidence to corroborate the collaborator's version. The Section of Economic and Financial Crimes of the OIJ determines that the alleged gifts delivered by [Nombre026] to [Nombre012] do not correspond to the 60% that according to [Nombre026] was agreed upon, which constitutes a "counter-indication" that allows sustaining that [Nombre026] is not telling the truth. The lady judges disregard the nature and applicability of the opportunity criterion ("crown witness") and err by giving the status of absolute proof to [Nombre026]'s statement, the alleged participation of [Nombre012] was not part of the corruption agreement between [Nombre026], [Nombre035] and [Nombre015], disregarding the fact that in his statement [Nombre026] indicates that said meeting took place in the month of November 2000, not in the first week of December. The majority tried to accommodate reality to what [Nombre026] said, violating the principle - accepted by them themselves - that [Nombre026]'s version must be corroborated on questions of fact of criminal relevance. The majority also did not rule on another "counter-indication" raised by the defense in closing arguments, which discredits [Nombre026], that the meetings in [...] and at [Nombre012]'s house cannot have been on December 3 and 4, 2000, because on December 5, [Nombre026] attended to vote on the ICE Board of Directors contrary to what was required by Alcatel (he voted for a direct procurement instead of an open procurement exclusively in favor of Alcatel for the purchasing procedure), which also allows seeing that [Nombre026]'s statement cannot be considered truthful nor corroborated by any direct or indirect means of evidence, it cannot be considered as a testimony, because he is a defendant who had a direct interest in the outcome of the process. Requests that the sentence be annulled and a retrial ordered (cf. appeal, folios 172774 to 172800). F) Lack of reasoning in the sentence because it omitted to analyze and rule on the following questions raised by the defense: a.- That on December 5, [Nombre026] attended to vote on the ICE Board of Directors contrary to what was required by Alcatel (he voted for a direct procurement instead of an open procurement exclusively in favor of for the purchasing procedure), which discredits what [Nombre026] says about the alleged meetings in "[...]" and at [Nombre012]'s house and highlights that as of December 5, no such corruption pact existed, that [Nombre026] lied, that the alleged meeting at [Nombre012]'s house, on which the majority bases the alleged criminal liability of Mr. [Nombre012], did not occur (cf. appeal, folios 172800 to 172803). b.- The effect that a vote by [Nombre027] on the Board of Directors has on the alleged existence of a corruption pact between Alcatel and several ICE directors and which is the substrate of the alleged reality that, according to the majority, gives credibility to what [Nombre026] said. "The sentence holds as proven that this process of buying consciences by Alcatel took place between April and August of the year 2000 and that through this action attributed to the defendants who were Alcatel officials ([Nombre035] and [Nombre015]) at least three directors were enrolled, two appointed by my client ([Nombre027] and [Nombre026]) and one with a close relationship to him although appointed by President [Nombre051] ([Nombre004]). In sum, to hold [Nombre026]'s statement and the seduction process to which he claims to have been subjected by Alcatel officials as truthful, the majority vote holds as accredited at least that by the end of the year 2000 three ICE directors were bought by the French transnational. However, the same majority vote points out, when recounting the different sessions of the ICE Board of Directors related to mobile telephony, that for the month of March of the year 2001, [Nombre027] took actions contrary to Alcatel, specifically requesting to reconsider and revoke a previous vote that had determined to acquire 160,000 lines of GSM technology from the Alcatel company, with [Nombre027] not having sufficient votes to get said reconsideration accepted [...] If the court in its majority vote holds this as accredited based on the documentary evidence that incorporates the minutes of the ICE Board of Directors and has pointed out that by the end of 2000 [Nombre027] was a piece, necessarily had to be a piece bought by Alcatel, to thus corroborate [Nombre026]'s version, it is evident that it was essential, not only to accredit the existence of the corruption plan, but the very veracity of what [Nombre026] said, to resolve, as we requested, this specific issue which was clearly evaded by the majority who did not even consider this aspect in their "reasoning", I reiterate, expressly required by the defense and which was requested to be resolved in order to make evident the impossibility of giving credibility to the confessed [Nombre026]'s version. Both arguments were presented to the Court and it did not resolve them by providing reasoning on the content of the defense's proposals" (cf. appeal, folios 172803 to 172805). c.- [Nombre026] gives two versions of the facts in the process, the first on September 30, 2004, in which he says he received a gift from Alcatel without a prior promise, and another in May 2005, given on the occasion of the application of an abbreviated procedure in his favor that later resulted in an opportunity criterion, in which he indicates that the proposal was prior to the award, in which he committed to three conditions (which, based on the above, he breached on December 5, 2000) and in which the alleged participation of [Nombre012] is no longer limited to receiving part of those gifts, but to allegedly intervening in the process of [Nombre026]'s determination to commit a crime. Both versions are contradictory, they cannot both be true, but the court does not analyze the defense's questioning about [Nombre026]'s credibility (cf. appeal, folios 172805 to 172806). d.- The defense also raised that, given the obvious contradiction of [Nombre026]'s versions, it was necessary to determine which one was true and, if this was impossible, to opt for the one most beneficial to the parties, applying the principle of in dubio pro reo. But the majority omits to resolve that argument, which has decisive consequences on the ruling, because "...if the crime was Receipt of Gifts and my client, in the version of September 30, does not intervene in [Nombre026]'s decision to commit a crime, then the reprehensible conduct would have been, as we elaborated in closing arguments, hypothetically a simple receipt of gifts by my client, which was atypical since they would have been received when my client was not a public official, an essential element of the objective elements of the crime and therefore would be unpunishable, or at least the statute of limitations would have applied" (cf. appeal, folios 172806 to 172807). G) Violation of the rules of sound criticism, because the sentence is not coherent but contradictory on essential aspects related to the credibility that can be given to the version expressed by the defendant [Nombre026] and the conditions that he was required to fulfill by Alcatel within an alleged corruption offer made to him in "[...]" in Alajuela. "On the one hand, the resolution sustains, in the analysis of the merits, that [Nombre026]'s version is completely credible and that regarding the existence of the illicit proposal, it is accredited that [Nombre026] was offered a percentage of the value of the four hundred thousand cellular telephone lines contract, this in exchange for fulfilling three conditions: 1) Protect the migration to GSM technology, 2) protect that said migration be carried out through an open public bidding procurement procedure, and 3) that once the technical areas recommended Alcatel's proposal, he would vote favorably for it. Notwithstanding the above, the majority vote itself recognizes that the determination to migrate was determined by the technical areas of ICE and in them, [Nombre026] himself declares, he had no interference, nor did he ever speak or seek anything to the effect that migration should occur. Second, the majority vote itself recognizes that the decision of how to acquire, by direct procurement or open or competitive procedure, WAS NOT HIS RESPONSIBILITY and WAS NOT the responsibility of ICE to determine, much less its Board of Directors and even less [Nombre026], but rather the Comptroller General of the Republic [...] From the above, an evident contradiction arises in the majority vote, either [Nombre026] committed to and fulfilled Alcatel's demands as part of the corruption proposal made to him, or it was the Comptroller's Office in its case and the technical bodies that determined not only the mode of procurement but the migration itself to GSM technology, but both propositions cannot be true at the same time. Both propositions are evidently contradictory. Either [Nombre026] tells the truth and he had control, some degree of control, over those issues, which is why he was required to fulfill them to receive the gift, or he lies and this, as the Court accepts in the majority vote, was in the hands of other entities over which or regarding which [Nombre026] had no control or influence, but both propositions cannot be true at the same time. The Court points out, as I said, in a contradictory manner, the credibility and the lack of credibility of [Nombre026]'s statement on core aspects of his alleged intervention in the questioned procurement, even more so of his ability to fulfill the requirements allegedly demanded by Alcatel, which makes the reasoning contradictory, both arguments mutually annulling each other and leaving the resolution without adequate reasoning. There is a clear contradiction in the analysis made of the elements, since as we said, by the principle of non-contradiction it is held that two mutually opposing judgments cannot both be true at the same time, two contrasting judgments annul each other. Equally contradictory is the resolution in that it holds as proven that by December fourth of the year 2000, [Nombre026] had received Alcatel's corruption proposal, had consulted my client and had been determined to commit a crime, we will see this issue of consummation later, but it is evident that the Court bases my client's liability on the fact that at the meeting allegedly held on December 4 at his home, he determined [Nombre026] to commit a crime, however it holds as accredited, without any doubt, that on December fifth, the day after [Nombre026] was determined to commit a crime, he votes favorably on terms contrary to the supposedly already accepted agreement, first he votes for a Direct Procurement, when Alcatel requires an open procurement process and also does not vote in favor of Alcatel, but of all its competitors. Since said statements are totally contradictory, both cannot be true at the same time, resulting in the reasoning being incoherent and therefore null and void and subject to appeal, we expressly request the Court of Appeals to declare this ground of appeal with merit, annulling the appealed resolution for being based on contradictory propositions from which it makes or intends to derive criminal liability for my client" (cf. appeal, folios 172808 to 172811). H) Violation of the rules of sound criticism in the determination and reasoning of the facts. In the present case, the resolution flagrantly violates the logical rule of derivation, by considering, based on the evidence, that an illicit conduct by my client [Nombre012] existed, despite the fact that all the evidentiary elements indicate, including [Nombre026] himself, that there was no conduct whatsoever on the part of my client that favored in any way Alcatel or its procurement by ICE. According to [Nombre026]'s version, he determined at his home, after receiving the proposal from Alcatel officials, that the matter was very complex and that he needed to have the support, he says, of the President, to proceed, but that he never needed to ask him for anything because the procedure "was going very smoothly". The above is essential to corroborate two things: there does not technically exist, in any of the elements of evidence incorporated into the debate, a single one from which to legitimately derive the existence of illicit conduct by my client; on the contrary, as we pointed out earlier, when [Nombre026] refers to his participation he merely states that he presumably consulted the President in case the help of a higher authority was needed, which he confesses was never necessary. The majority vote itself holds this as proven [refers to proven fact No. 91]; even in the event that [Nombre026] informed the Alcatel officials that he required a higher authority, in none of his versions does he state that he told them it was the President of the Republic, in fact this decision to supposedly communicate it to Dr. [Nombre012] arises after he meditates on the topic at his home and simply in case he required some help which, we reiterate, was not necessary, according to [Nombre026] (cf. appeal, folios 172811 to 172813). I) Violation of the rules of formal notification of charges to the defendant. In its closing arguments, the defense raised the issue that [Nombre012] was not duly notified of the charges during the investigation stage for the acts for which he is ultimately accused and convicted. "The basis for such questioning - states Mr. Gairaud Salazar - lies in the fact that since the Constitutional Chamber has declared that formal notification is part of Due Process (votes 9879-2001 and 1739-92. Constitutional Chamber) and consists of the defendant not only being informed of the provisional classification made of the investigated facts or knowing the evidence the Public Prosecutor's Office has at that time, but fundamentally, associated as Llobet points out, with his right to remain silent, to know the specific facts for which he is being investigated. Evidently, as is logical, the facts for which the defendant is notified at the time could vary and this obliges that in the event that said variation affects or changes the possible liability, it is the obligation of the Public Prosecutor's Office to question the defendant again, formally notifying him of the new facts attributed to him [...] This is precisely what was argued before the court, my client was questioned on October 15 based on the facts that [Nombre026] had accepted, consisting, as was accredited to the Court in closing arguments, documented, in the affirmation that he, [Nombre026], after the award to Alcatel would have received a gift without prior promise. In those facts, [Nombre026] does not state that he required help from my client or that the meeting with Alcatel officials in '[...]' or at my client's house had taken place. He was thus formally notified that according to [Nombre026], of the gifts received, a part was given to my client. Nevertheless, when [Nombre026] changes his version in May 2005, regarding the offer of an abbreviated process, later used to benefit him with an opportunity criterion, [Nombre026] radically and substantially varies the facts and states that his original version, given, as he pointed out in the debate, due to his legal knowledge or veneer and as a mechanism of self-justification and seeking lesser liability, must be understood not in the sense that he received the gift without prior promise, but rather that there was a meeting in '[...]' in Alajuela in which [Nombre035] and [Nombre015] proposed the payment of a gift in exchange for fulfilling three conditions of assistance in favor of Alcatel and that, finding it attractive and accepting the proposal in principle, after thinking it over at home, he decides to consult the President of the Republic, Dr. [Nombre012]. Evidently, there is a huge difference between one set of facts and the other, in one case it is a gift without prior promise and without action by my client, except for the receipt of alleged gifts related to the money received by [Nombre026] from Alcatel, and in the second version there is an alleged 'prior' participation of my client, including a meeting, in which he is informed of the corruption proposal made to [Nombre026] and facilitates it. The issue is then that since my client was only formally notified of the first facts and later a new questioning was never ordered to formally notify him of the new facts related by [Nombre026], there is a flagrant violation of his constitutional and legal rights, irremediable as it involves the violation of fundamental rights nonetheless (Art 178 of the CPP), surprisingly the Court affirms, in its majority vote, that there is no defect whatsoever and inverting the procedural responsibilities says on the one hand that it was my client's or his defense's obligation to request the new formal notification, which is an absurdity that violates the constitutional principle of non-self-incrimination, and secondly because the competence over the control of the process corresponds to the Public Prosecutor's Office. It is in the Public Prosecutor's Office's interest that the act of formal notification be carried out, given that by law it was conferred that power with the reform that creates the current Procedural Code, and finally because it is not the defense's task, it is not the defense's competence to decide whether new facts should be formally notified to the defendant; what is the defense's competence is that, once duly notified, the defendant may testify or not. Thus, the issue rests on the fact that Dr. [Nombre012] was only formally notified of the receipt of two checks drawn from 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 discarded, as well as the receipt of some certificates with the third payment indicated by [Nombre026] on September 30, 2004; the rest of the alleged receipts of money are facts for which my client was never formally notified and therefore never questioned, nor was he for the existence of the alleged meeting at his home, in which he supposedly determined [Nombre026] to commit a crime, meaning HE WAS NEVER FORMALLY NOTIFIED OF INSTIGATION, preventing, in accordance with due process, him from being tried and much less convicted for such acts." The trial court rejects the defense's objection saying that the right to defense was not affected, that [Nombre012] could have requested the extension of his first statement, but the correct thing - argues the appellant - is that the defendant be formally notified of the facts imputed to him, at least the fundamental circumstances to fit the conduct to a criminal type and be able to exercise the right to defense, "...something that does not happen in this case, in which the formal notification, 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 because of the variation in the alleged participatory conduct and its classification, for this reason my client should have been re-questioned after the variation in [Nombre026]'s statement in May 2005, which did not happen [...] Therefore, to sustain, as the majority does, that our questioning is an absurdity, because if accepted the investigation stage would be paralyzed, is a mechanism to evade the specific point raised by the defense; it is not about evidence, I reiterate, it is about facts, and each time the facts vary, the defendant must be questioned about those new facts, as many times as they are susceptible to fitting a different criminal type. In this case, such essentiality derives from the assertion that my client instigated [Nombre026] and this was not a fact known in the case file at the time my client testified, but only eight months later, when [Nombre026] gives his second version of the facts." [Nombre012] was never formally notified of the facts for which he was accused, he was never formally notified of facts of instigation; the new formal notification should have occurred at the time new facts are inserted, which did not happen either in the intermediate stage or at the debate, as is falsely affirmed in the majority vote; what happened at the start of the debate is that the Prosecutor's Office reclassified the facts to a more serious figure, Aggravated Corruption by Bribery, but there was no variation whatsoever in the facts charged. It is an irremediable defect, an absolute defect under Article 178 subsection a) of the Criminal Procedure Code, because it is a right of constitutional nature, being a fundamental right enshrined in the Universal Declaration of Human Rights and in the American Convention on Human Rights ("Pact of San José"), as the Constitutional Chamber has pointed out, therefore a dismissal should have been issued, since it is not possible to revert the matter to stages already precluded to remedy the defect (cf. appeal, folios, 172813 to 172821). J) Violation of the rules of sound criticism and of the control of the legal tool of the opportunity criterion. Given interlocutory questions raised by the defense regarding the application of the opportunity criterion, the same judges who issued the majority vote in the sentence, concurred in issuing the resolution at 1:30 p.m. on September 2 of the year 2010, indicating that their court was not competent to hear the questions raised against the opportunity criterion granted in favor of [Nombre026], saying that this power corresponds to the Third Chamber of the Supreme Court of Justice.

This concerns an illegal, even unconstitutional, waiver of the criminal court's powers, which is responsible for hearing all the matters debated and exercising jurisdictional control over due process, as mandated by current procedural law. As Judge Camacho Morales points out in his dissenting vote, the procedure followed for the application of this legal mechanism in favor of [Name026] violated due process. It is in the judgment that the judges determine that it is by comparing the supposed reproaches attributable to [Name026] against [Name018], [Name015], and [Name012] that it can be established that the conduct of [Name026], as the principal perpetrator, is supposedly less reprehensible: "However," the complainant adds, "such a possibility was denied to the judge who heard the request for the application of the criterion of opportunity, thus violating the jurisdictional control of the criterion of opportunity established in procedural law. The Judge to whom the prosecutor's request was presented was not allowed to establish whether it was true that [Name026]'s conduct was more or less reprehensible than that of the other three accused persons mentioned. It is precisely the reasoning made by the Court regarding the possibility of comparing the lesser lack of reprehensibility or lesser seriousness of the act among the different agents involved in the legal mechanism that was violated, because by deliberately dividing the powers, by the Prosecution, such that one judge heard the request for the application of the Criterion of Opportunity and another heard the Accusation, it prevented that control regarding the greater or lesser lack of reprehensibility required by the legal system from being able to be carried out in any way, rendering the procedure for granting the legal mechanism completely flawed, violative of due process and the legal system, not a nullity for nullity's sake, but because the exercise of my client's right to defense derives from the application or non-application of the mechanism, its real and not merely formal exercise, even more so when the benefited accused has the virtue of convincing a court that determines it is not necessary to have evidence corroborating his statement, but rather the problem is one of simple credibility or not. Given that, as we have seen, the statement of the cooperating accused, within the legal 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 proof that allow corroborating or validating the version of said accused and that therein lies the value of said statement, NOT as a MEANS OF PROOF, but as a means of OBTAINING EVIDENCE in accordance with numeral 22 of the Criminal Procedure Code (CPP) which provides '... and the accused cooperates effectively with the investigation, provides essential information to prevent the continuation of the crime ... helps to clarify the investigated act or other related ones or provides useful information to prove the participation of other accused persons ...' It is evident that the Judge who approves said criterion must have at his disposal the totality of possible lack of reprehensibilities, that is, the accusation and the request for approval of the criterion of opportunity, and decide, as the law requires at the end of the preliminary hearing (audiencia preliminar), numerals 37 and 319 of the Procedural Code violated by the majority vote." Secondly, the appellant reproaches that it was not appropriate to evade the resolution of the criterion of opportunity and to point out, as the majority vote does, that [Name026] testified moved by an altruistic interest, since his spurious interest is evident. Nor does he share the majority's statement when it says that the Third Chamber has erroneously interpreted the issue of greater or lesser lack of reprehensibility, in the sense that the participation of the "repentant" is more minor than that of the one being pursued, since reprehensibility cannot be determined until the sentencing stage, when the existence of the unlawful act has been determined, which would make said procedural mechanism inapplicable in any case. In this case, [Name026]'s conduct is more serious than that of any other accused person, since the prosecution itself indicates that he was the direct perpetrator with full control over the act and therefore his conduct could not be less "reprehensible" than that of a participant; it was not possible to grant impunity to a perpetrator in the face of an alleged instigation that the court recognizes does not consist of a direct action of determination, but rather was symbolic. It requests that the appealed judgment be declared invalid for being based on an illegally granted criterion of opportunity and that a judgment of dismissal (sobreseimiento) be issued (cf. appeal, folios 172821 to 172828). K) Violation of the rules for the application of the penalty and lack of sufficient reasoning. It alleges that if the majority imposes the maximum extreme of the penalty on its client, it does so by saying that this is by virtue of his "greater lack of reprehensibility" against the protected legal interest and for a reason that is clearly spurious, because he was the President of the Republic and because [Name026] is less reprehensible, for talking and because he returned a sum of money, while his client did not return any sum and tried to evade his responsibility by attempting to give explanations that were, in the majority's judgment, untenable and because he did not give explanations for the origin of part of the funds received from [Name026]. "These statements," alleges licensed attorney Gairaud Salazar, "even though the majority rushed to try to point out that they are not applying the theory of Author-Based Criminal Law, are evidently revealing that indeed the reasons for which the maximum penalty is imposed are untenable: First, the greater or lesser lack of reprehensibility does not depend on the hierarchy of the function performed by the public official, but on the greater or lesser incidence on the injury to the specific legal interest, not in the abstract, meaning that for the specific act, the acts of the responsible party are of such or such a magnitude that they determine the imposition of the penalty. Second, the exercise of the right to defense, which is precisely the corollary of the statement that [Name026] confessed and that my client did not, is a flagrant violation, another one, of due process; the penalty and the maximum of the penalty cannot be imposed because the accused exercised a constitutional and legal right. Such a statement becomes arbitrary and illicit, legally and constitutionally. Finally, it is based on the reversal of the burden of proof; it is not up to the accused to demonstrate, it is up to the prosecution, in such a way that the fact of not having, supposedly, given said explanation of the funds does not make the subject's conduct more or less reprehensible. These three reasons result in the illegitimacy of the criterion used by the majority to establish the supposed greater lack of reprehensibility of my client compared to [Name026], but they do not constitute a reasoning for why the maximum penalty is imposed on my client. In any case, since they are illicit reasons, they would be excluded as a foundation for the imposed penalty, as they are, and having not specified the reasons, not for the supposed greater or lesser lack of reprehensibility of my client, but for the why of the quantum of the penalty, it is evident that the penalty is imposed in an arbitrary and illegal manner, violating the duty to state the reasons for the penalty. [...] For exercising his right to defense, the maximum penalty is imposed on him, that is the conclusion we reach after reading the reasoning for the penalty by the majority vote. Nor is it possible to consider said penalty reasonable if we consider that my client acts, according to the majority vote, as a simple instigator, not as a perpetrator, that the instigation was subliminal, a gesture or a division of percentages, not the direct and express action on the psyche of [Name026], so it is disproportionate that the Direct Perpetrator with Full Control over the Act goes unpunished and the subliminal instigator is given the maximum penalty provided for the crime." It requests that the ground of lack of sufficient reasoning and adequate determination and proportionality of the penalty be accepted and that, in the event that the other grounds of appeal on form and substance are not accepted and the appealed judgment is confirmed, the imposed penalty be correctly adjusted to an equivalent extreme that allows the conditional execution of the sentence (cf. appeal, folios 172828 to 172831). L) Violation of the rules of application of the substantive norm of Instigation (articles 47, 342, and 340 of the Penal Code). The acts that were taken as proven in judgment numbers 90 and 91 do not fit the criminal types of 'Accomplices' (article 47 of the Penal Code), 'Improper Bribery' (article 340 of the Penal Code), and 'Aggravated Corruption' (article 342 of the Penal Code). [Name026] did not require being determined but rather potentially having help. For the majority, the instigation is not even direct but derives from the statement "let's go 60/40." Licensed attorney Gairaud Salazar adds: "So, from the very moment the proposal is made to him, [Name026] accepts it. The majority vote says that [Name026] notes that he does so 'in principle,' an adverb that according to the 'Pequeño Larousse' dictionary is provisional, without full acceptance, which is evidently not correct. When [Name026] says he accepts in principle, he says he accepts the proposal and the possible conditionality is resolved in proven fact 91; he needed to know if eventually my client could help him in case the matter became complicated, which, as we saw, never happens. In other words, [Name026] is determined to commit the crime at the very moment the bribe is offered to him, which, according to the violated substantive norms, is the moment of consummation, and my client could not determine the commission of a crime that HAS ALREADY BEEN CONSUMMATED, according to the very considerations of the majority vote. Accepting in principle reveals that [Name026] tells them: yes, I accept but I have reservations, I must think about it, which is effectively what the majority vote says happens when he goes home and, seeing the dimension of the case, decides to consult the eventual collaboration of my client; this is evidently NOT INSTIGATION; therefore, the norm of article 47 and 340 on the topic of CONSUMMATION are flagrantly violated by the majority vote. Consequently, if [Name026] accepted the proposal made in the same [...], if later he only required eventual help and not to be determined, evidently my client did not instigate him, given that Castillo González, cited by the court, points out: 'Castillo González points out that 'to determine' implies that the instigator influences the will of the perpetrator immediately or, put another way, 'causes' or 'gives rise' in the perpetrator the resolution to commit the crime (Op. cit., p. 499). Regarding the subjective type, the instigator must determine another and do so intentionally; it is a willful action and neither negligence nor eventual intent (dolo eventual) is applicable (Op cit., p. 510). One improperly speaks of a double intent (doble dolo): i) that the instigator acts intentionally regarding his own activity as a determiner. ii) Also, the instigator must have an intent directed toward the intentional perpetration by the perpetrator of the consummated punishable act. (op. cit., p. 511).' Consequently, if [Name026] accepted the proposal made in the same [...], if later he only required eventual help and not to be determined, evidently my client did not instigate him and therefore the appealed resolution incorrectly applies the norms of instigation and the consummation of Improper Bribery." It requests that this claim be accepted and, noting that from the proven facts it derives that [Name026] consummated the crime before supposedly meeting with [Name012], that he was already determined at the time of the supposed meeting in the case of his client, and that therefore he could not have been instigated, that it is illicit that he has been convicted as an Instigator of the Crime of Aggravated Corruption by Improper Bribery, and that, instead, and based on the list of proven facts, the acquittal judgment that legally corresponds be issued in his favor (cf. appeal, folios 172831 to 172836). It concludes its brief requesting this Sentence Appeals Court (Tribunal de Apelación de Sentencia) to revoke the appealed resolution, to order the holding of new proceedings, or to issue an acquittal judgment in the event that the absence of elements to support the accusation against his client at trial is evident to this court. It requests that an oral hearing be scheduled to inform.

IV.- THE APPEAL OF LICENSED ATTORNEY RAFAEL ENRIQUE GAIRAUD SALAZAR IS RESOLVED.- In view of what has been resolved regarding the appeal of Dr. [Name012] in the preceding Considerando, it is unnecessary to issue a pronouncement regarding the appeal of his defender, Licensed Attorney Rafael Enrique Gairaud Salazar, as his claims have already been accepted.

V.- APPEAL OF LIC. CRISTIAN ARGUEDAS ARGUEDAS.- Lic. Arguedas, also an attorney for Mr. [Name012], has expressed his nonconformity with the judgment through various writings, the first of which is a "cassation" appeal (recurso de casación) filed on August 1, 2011 (cf. Volume XXXVII, folios 17387 to 17407). The second is a "sentence appeal" (recurso de apelación de sentencia) (filed on February 10, 2012, cf. Volume XXXIX, folios 172687 to 172710), whereby Lic. Arguedas adapts his previous cassation claims to a criminal sentence appeal, in accordance with Temporary Provision III of Law No. 8837 of May 3, 2010 ("Creation of the sentence appeal, other reforms to the challenge regime and implementation of new rules of orality in criminal proceedings"). It claims the non-observance of articles 41, 153, and 154 of the Political Constitution; 41, 112, 142, 266, 363, 365, and 367 of the Criminal Procedure Code; 99, 290, 291 of the Civil Procedure Code; for the following reasons: A) Lack of sufficient reasoning in the judgment, by virtue of the fact that the court refrained from resolving matters related to the civil action filed by the Costa Rican Institute of Electricity (Instituto Costarricense de Electricidad, ICE), because supposedly its civil action for damages lacks an adequate factual basis (it does not have a clear description of the acts attributable to [Name012]) to support the claims made, for which reason it refers the interested parties to the civil venue to clarify the civil claims of the ICE. There is no legal norm that authorizes the trial court to decide thus, denying access to prompt and complete justice by not resolving a matter submitted to its cognizance and competence. Since the trial court cannot supply the deficiencies of the parties when litigating, the court should have declared the inadmissibility of the ICE's civil claim, its filing or outright rejection, as required by article 291 of the Civil Procedure Code, with the consequent award of legal costs. The trial court should have resolved the matter submitted to its jurisdiction and competence and did not do so, nor did it indicate its legal reasoning or the applicable norms to reach that decision of its not to resolve, thereby denying [Name012]'s access to justice. The Trial Court incurred in "citra petita" because it did not resolve a matter submitted to its cognizance. This defect has been pointed out unsuccessfully at all stages and opportune procedural moments. B) Lack of sufficient reasoning by virtue of the fact that the trial court did not resolve matters related to the civil action filed by the ICE. The trial court says that a peculiarity of this process is that not all the accused participated in all the accused criminal acts; rather, it starts from the intervention of groups of accused in certain acts, a circumstance that forces having to determine and specify each group of accused and third-party civil defendants that could result jointly and severally liable among themselves, also in relation to certain acts and certain damages that those specific acts could have caused, with which, the conclusion is reached that there is no single damage for which all the accused and eventually third parties must respond jointly and severally, which is the assumption on which the civil claims were liquidated by the Costa Rican Institute of Electricity and the Office of the Attorney General of the Republic (Procuraduría General de la República). What could exist are damages caused by the criminal conduct of certain groups of accused, for which the accused of the group and eventually third parties would respond jointly and severally, independently of the eventual damages caused by other groups of accused. The court says that for each group of jointly and severally liable parties, it was necessary to specify the damages claimed and the claims, which was not done, making in this regard a global estimate and a single request for condemnation, as if all the accused and legal persons were joint and several debtors of a total damage, which is not the case, because what could exist in the specific case are various damages that can be individualized by group of accused and third parties that could be obligated to repair them. The total damage referred to in the civil actions could not be more than the sum of the individual damages caused by each group of eventual obligors, which, for the purposes of the compensation sought, lacks any legal relevance. The court adds that by proceeding as the civil plaintiffs (Office of the Attorney General of the Republic and Costa Rican Institute of Electricity) did in liquidating claims, they leave the Court unable to rule on the merits thereof, and that the above is aggravated by the circumstance that no attempt was made to establish the individual damage eventually caused by each group of joint and several debtors, so that, even if the Court decided to do the work for the civil plaintiff parties, it would lack the inputs to do so, and if it did, it would ultimately be only in the judgment that the civil defendants would come to know what the concrete, determined, and specific claims formulated against them were, in which case due process would be violated, which requires that the specification of claims must occur before the conclusion of the preparatory procedure, so that the civilly sued parties could properly exercise the right to defense, which would be violated if the Court ruled on the merits of the claims as formulated. That together with the above, it was also not considered that the very Costa Rican Institute of Electricity that sues for the repair of damages and losses in its favor is one of the legal persons who, according to the law, are jointly and severally obligated with the civil defendants to their repair. The Court considers that it could not supply the negligence of the party without seriously violating important principles of the civil process such as the objectivity and impartiality of the judges, the right to defense, and due process in general, by allowing actions contrary to the legal provisions regulating the civil action for damages that affect the correct development of the process and the right to defense of the parties, who would only come to find out what the concrete claim made against them consisted of when the judgment is issued. According to the court, similar questioning can be made of the civil actions filed by the Office of the Attorney General of the Republic, a State body that the Criminal Procedure Code entrusts with the exercise of the Civil Action for Damages representing not the State, but Collective and Diffuse Interests (article 38 of the Criminal Procedure Code). The Office of the Attorney General of the Republic could not ignore, when formulating the civil action for damages and its claims, that the State and the Costa Rican Institute of Electricity were also indicated by law as jointly and severally obligated parties to respond for the damages and losses to collective or diffuse interests, whose compensation is sought. The foregoing because in the eventual production of the damages and losses, public officials from the Executive Branch, the Legislative Branch, and the Costa Rican Institute of Electricity intervened. By not establishing a civil action for damages against said entities, the Office of the Attorney General of the Republic breached its obligations according to numeral 20 and 21 of its Organic Law. In such a way - concludes the court -, the Office of the Attorney General of the Republic, when claiming the social damage representing collective and diffuse interests, could not demand a total joint and several liability from all the civil defendants, without differentiating, as was appropriate in this case, among the different groups of joint and several debtors, having to determine regarding each group what the specific criminal act attributed was and the damage caused thereby, all of this factually supported in the description of acts. Therefore - concludes the complainant - the formal defects pointed out by the trial court regarding the rules of legal solidarity generate defenselessness, confusion, and result in poor processing of the civil actions; the court then decides not to resolve the matter, to escape from its constitutional obligation to impart justice, denying justice to the defendant [Name012], sending the matter to the civil jurisdiction, when the proper course was to hear the matter and declare it without merit, with the corresponding award of legal costs to the civil plaintiffs. Licensed attorney Arguedas indicates that during the transfer of the civil action, he raised the exception of necessary passive joinder of parties, by virtue of the solidarity rules governing the present case, but it was never heard; during the intermediate phase, in the preliminary hearing and in the trial phase, he supported that exception, since it was considered that the civil claims of the ICE and the Attorney General's Office (PGR) were not well-formulated and that there were various subjects who met the procedural conditions to be considered as defendants and were not being so, as for example the case of [Name026], whom the ICE never sued, despite being the principal perpetrator of the acts attributed to [Name012]. The court should have declared the exception of passive joinder of parties with merit and awarded legal costs, but never abstained from hearing the matter. C) Lack of sufficient reasoning in the judgment on the issue of legal costs, as the court does not tell us the reasons for its conviction, applicable legal norms, and foundations for, first, resolving without a special award of legal costs. Second, even though the court recognizes the irremediable defects of the civil claims of the ICE and the PGR, and that these are the responsibility of the civil plaintiffs and the Courts of Justice, this representation does not accept or share what the court intends: to also hold the defense responsible for the mishandling of its opponents' civil actions, since this is not the defense's responsibility, nor is such a conclusion logical or rational. In any event, Dr. [Name012]'s defense always made the various criminal judges aware of such situations, and to that end raised all kinds of exceptions at all opportune procedural moments, which is why said argument lacks any kind of sufficient reasoning. If the court recognizes that there are insurmountable defects in the lawsuits due to poor processing by the civil plaintiffs and the complicity of the administration of justice, that can never be attributable to the defense, especially when it is the defense that denounced such circumstances at all procedural stages. Thirdly, what was resolved by the court lacks all sufficient reasoning, since it does not say what the plausible reasons for litigating were. Not a single reason or justification is found to qualify as plausible for litigating and therefore exonerate the civil plaintiffs from legal costs, and it does not resolve what was requested by the defense at least in relation to the exceptions raised at all times. Nor did it analyze the recklessness and bad faith with which the ICE and the PGR litigated, making absurd lawsuits with no evidentiary basis whatsoever. It requests that this appeal be declared with merit, declaring the civil claims inadmissible and rejecting them on the merits, condemning the State and the Costa Rican Institute of Electricity to pay the legal and procedural costs, in accordance with the current decree on fees. D) Non-observance and erroneous interpretation of the Criminal Procedure Code, the Civil Procedure Code, and violation of the principle of congruence and correlation between civil claim and judgment. The court sets forth, with great legal wisdom, the foundations that could cause various grounds for appeal and cassation by virtue of the violation of the principles of congruence and correlation between civil claim and judgment; however, it errs and the court falls into citra petita when it comes to not resolving. According to the jurisprudence of the Second Chamber, citra petita is incurred in the case of omitting to rule on points discussed between the parties (cf. No. 618-2010 of 9:15 a.m. on May 20, 2010), as happens in this matter. Neither the legal representation of the ICE nor that of the PGR required or requested that the court not resolve the present matter submitted to its cognizance. Nor did the technical civil representation of Dr. [Name012] do so; rather, all parties were desirous that the court fulfill its constitutional mandate. From articles 99 of the Civil Procedure Code, 365 and 367 of the Criminal Procedure Code, it derives that the option of not resolving a matter submitted to the cognizance of the trial court finds no legal basis in civil procedural or criminal procedural legislation. The principle of congruence is violated when the trial court abstains from hearing the merits of the matter and does not resolve. For the foregoing reason, the present appeal must be accepted in its entirety. E) Violation of the principle of congruence previously described because the trial court did not hear the merits of the matter and consequently did not accept the claim of [Name012]'s defense. In addition to the lack of sufficient reasoning and contradictory ruling, licensed attorney Arguedas says he finds no valid legal argument whatsoever for the court not to have ruled on the merits of the matter. He requested the court to declare the civil actions of the ICE and the PGR without merit, since the damage claimed by the plaintiffs is non-existent. It never occurred, and therefore there is no compensation whatsoever to which they are entitled. In the first place, regarding the ICE's civil action, licensed attorney Arguedas raised the exceptions of lack of right, lack of active standing, lack of cause, among others, which were never resolved or addressed by the Court, since the ICE did not suffer any economic loss, but rather profited and benefited from the contracting of the four hundred thousand cellular lines. To this effect, the appeals court can consult evidence number 646, and the testimonies of the gentlemen Former Executive Presidents of ICE, [Name052], [Name053], and the ICE Marketing Manager [Name054], who testified at trial and confirmed the profits obtained by ICE by virtue of the contracting with Alcatel and also denied any economic loss for the ICE. In the same way, the ICE's claim is based on a reduction made by ARESEP to fixed-line tariffs, to the deposit or guarantee, and the refusal of a tariff increase, and therefore what is requested by the ICE bears no causal link whatsoever with the acts judged by the trial court. It is enough to observe evidence 782 to realize that the Aresep resolution reducing cellular tariffs dates from the year 2003, long before the acts judged by the Court came to public light (October 2004), which makes the lack of causal link with the judged acts evident. That is to say, what caused the Aresep resolution were not the acts of the present case file. In said resolution (evidence 782), Aresep, by virtue of its Organic Law, reduced tariffs for the entire cellular and fixed-line telephone network, and not only for the four hundred thousand lines contracted to Alcatel.

If this is so, the challenger asks, what does the reduction one year before the events concerning the telephone service contracted with Lucent and Ericsson have to do with, or what is the causal link to, the 2004 events attributable to Alcatel? The lack of causal link between what ICE requested and the facts adjudicated is evident. For this reason, ICE's claim should have been and must be declared without merit on the merits of the case. On the occasion of the same ARESEP resolution (evidence 782), contrary to what ICE requested at that time, the public services oversight body did not approve a requested increase of four hundred colones, since, as witnesses [Name055], [Name056], and [Name052] properly testified, with GSM, economies of scale were generated, the administration of the cellular network became cheaper, and that had to be passed on to the final consumer in the form of a decrease in rates. Therefore, what ICE requested in its civil action lacks any causal link to the facts elucidated in the court concerning the present case file. Finally, in said resolution, ARESEP reduced the guarantee or deposit per cellular line from sixty thousand colones to twelve thousand five hundred colones, all based on the new and better cost structure resulting from the implementation of the GSM network. However, as testified by the expert contracted by ICE, the guarantee deposit was not property of ICE, but of users. However, in an unprecedented manner, ICE sought a million-dollar indemnification for the impossibility of "riding" or capitalizing the interest from the users' money. This clearly constitutes unjust enrichment, and is therefore illegal, and in any case, has no causal link whatsoever with the facts adjudicated by the Court. In summary, the million-dollar and illegal indemnification sought by ICE has no causal link to the facts adjudicated by the trial court; for this reason, the adjudicating body should have ruled on the merits, declaring the civil action of ICE without merit and sanctioning ICE for bad faith, for filing a reckless lawsuit, without any causal link to the facts adjudicated by the trial court. Despite this, the Court, in direct violation of the Constitution, did not resolve the defense's motion, but rather, committed a failure to rule on a point (citra petita), as it resolved absolutely nothing.

On the other hand, regarding the civil lawsuit for social damage filed by the PGR, the same meets the same fate as that of ICE, as it is reckless and based on non-existent claims, which are discussed below. The PGR claims an alleged damage to democracy by virtue of electoral abstentionism, consisting of an absurd formulation, given that electoral abstentionism is a phenomenon that has been occurring in the country since the 1986 elections and from that moment has been steadily growing without stopping. The University of Costa Rica, at the request of the Supreme Electoral Tribunal just after the 2002 elections (two years before the ICE-Alcatel case was even known), conducted the study "Abstencionistas en Costa Rica ¿Quiénes son y por que no votan?", by Ciska Raventos Vorst and others (evidence 771), which holds and concludes the following: a) The weakening of party loyalties is not exclusive to Costa Rica; b) In a two-party system, party disaffiliation frequently leads to abstention; c) Starting in 1990 and 1994, but particularly in 1998, a new modality of abstention becomes evident, motivated rather by discontent with politics and politicians; d) The interpretation of the data leads us to conclude that the Costa Rican political regime, marked by significant stability in party options and voter preferences, has entered a period of change in the last two elections. (It should be considered that this refers to 1998 and 2002, before the investigated facts.) The main feature of this change is the discontent with politics and politicians, which is expressed in the distancing of voters from the two party options of the second half of the last century, and not with the present case. Regarding the 2021 elections, the trend was toward greater abstentionism. e) In 2002, this group of voters with a high educational level and good socioeconomic condition felt attracted to the PAC's platform, so they returned to exercise their right in this election. Moreover, on this occasion, voters from lower socioeconomic levels once again swelled the abstention percentages, literally offsetting the possible effect of those who abstained in 1998 but returned to the polls in 2002. The foregoing allows us to assert that, possibly, if a third option had not existed, abstention levels would have increased considerably; f) In summary, the increase in electoral abstention in the last two elections seemed to be fundamentally linked to political factors, associated with the closing of the political cycle of the second half of the 20th century, in which the main weakened institutions have been the political parties. Despite the real data proven and issued by the University of Costa Rica, the PGR bases its calculation of the abstentionism percentage on a news item from *Periódico Al Día* of October 6, 2004, which indicates that abstentionism for the 2006 elections was 64.20/0r, which, as is publicly notorious, never actually occurred, since the abstentionism in 2006 was 34.80/", for this it suffices to see evidence 772, which is the certification of electoral results issued by the TSE. In a completely absurd manner, the PGR proposes a methodology to calculate a damage to democracy that is totally non-existent based on the following. The PGR proposed that since an abstentionism of 31.2% was obtained in 2002, and the figure reported by *Periódico Al Día* when it interviewed 500 people was estimated at 64.2% in 2004, the difference between these figures, which equals 33%, or the 841,702 voters who would eventually abstain according to the electoral roll, then that number of voters must be multiplied by the sum of $12.71, which according to him is the cost per vote, yielding the sum of USD $10,697,617. Therefore, in this case, since the ICE-ALCATEL case has a responsibility of 33.9% according to a survey conducted on 104 people, the amount imputed to its represented party is the sum of USD $3,626,492. The above calculation is preposterous and absurd for several reasons: 1) the real abstentionism percentage has no relationship whatsoever with the facts adjudicated in this Court (evidences 771 and 772), given that it was lower than that maintained by the PGR and that it is due to factors unrelated to the facts adjudicated, as previously stated. 2) The election budget is defined constitutionally, and is spent regardless of the voters who come to the polls, whether 1, 10, 300, or the entire electorate vote. That investment is simply part of our decision as a country and our democratic identity, so the calculation of $12.71 per voter is clearly unfortunate. 3) The weight of 33.9% referring to the responsibility of the ICE-Alcatel case was defined by 104 people in Heredia in a survey, that is, it does not come from a serious study that is extrapolable to the entire national population, just as the PGR's own expert maintains and expert [Name057] stated when testifying at trial. 4) A real figure is compared with an evaluation from a survey that is not extrapolable to the population, conducted mid-electoral period, which demonstrates the lack of seriousness and recklessness of the PGR's civil action. 5) An action on election day is compared with a belief outside the electoral period, but above all, with data from a newspaper issued by a journalist with no knowledge of the matter, not even with real data. 6) There is no logic, nor is it justified in any serious study, that national abstentionism results from the image or trial of a political leader; for this, in an extreme case, one would have to assume that there was never electoral abstentionism before 2002 and that 100% of voters attended each election. 100% only attends in the entirety of the electoral roll. [Name012] bears no responsibility for the abstentionists or for damage to democracy in this sense. This makes the alleged damage to democracy simply untenable and lacking any causal link to the facts adjudicated, which is why the Court should have declared it without merit and ordered the PGR to pay legal and procedural costs.

In the same vein, the PGR seeks reparation for an untenable and non-existent damage to the national economy. The defense of Dr. [Name012] offered evidence and real data affirming that the Costa Rican economy suffered no damage from the facts adjudicated, but rather strengthened year after year. Despite the PGR raising an ineffective methodology without any scientific basis, real data indicates that the national economy suffered no impairment, or at least, the facts adjudicated by the Court had no negative impact on national economic development. Evidence 774, which is a certification issued by the Banco Central de Costa Rica, clearly reflects that the economy from 2001 to 2006 strengthened and increased year after year, and suffered no impairment. Likewise, evidence 774 indicates that tourists and tourism income between 2002 and 2006 always increased and never deteriorated, that is, the facts adjudicated here had no interference, except to benefit them; therefore, there is no causal link and a supposed damage to the national economy sought by the PGR is non-existent regarding the facts adjudicated here. The same evidence 774 is conclusive in the sense that national exports did not deteriorate due to the facts adjudicated by the Court. Note that the series of years from 2001 to 2006 indicates a sustained increase in national exports; that is, the facts adjudicated here had no impact on exports, therefore, the PGR's civil lawsuit should have been declared without merit, with the corresponding order for costs against the PGR. Regarding direct foreign investment, evidence 773 is clear, as the Ministry of Foreign Trade certifies that foreign investment for the years 2001 to 2006 never stopped growing, but rather increased and grew year after year; therefore, the PGR's civil lawsuit should have been declared without merit, with the corresponding order for costs against the PGR. Therefore, the civil claims of the PGR referring to the non-existent damage to democracy and the national economy are clearly preposterous and have no probative or legal basis, because in reality, neither democracy nor the economy were affected in any way by the facts adjudicated by the trial court regarding the Ice-Alcatel case. For this reason, the Court commits a failure to rule on a point (citra petita), since it did not resolve what was requested by the civil defense of Dr. [Name012], as the appropriate course is to declare the PGR's civil lawsuit without merit due to the absolute non-existence of any social damage. By virtue of the foregoing, the Court incurs a defect of inconsistency, since it was required to resolve the civil actions of both ICE and the PGR, and the only legally possible solution was to declare them without merit and order both civil plaintiffs to pay legal and procedural costs.

Petition. By virtue of the foregoing, it requests from the Chamber of Appeals the following:

"a) Uphold this appeal against judgment No. 167-201I of fifteen hundred hours on April twenty-seventh, two thousand eleven, from the Tribunal Penal de Hacienda of the Second Judicial Circuit, regarding the civil actions." "b) Declare the inadmissibility of the civil lawsuits filed both by the Instituto Costarricense de Electricidad and by the Procuraduría General de la República, ordering both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." "c) Declare the plea of necessary passive joinder of parties (litis consorcio necesario pasivo) regarding the civil lawsuits filed both by the Instituto Costarricense de Electricidad and by the Procuraduría General de la República, ordering both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." "d) Uphold this appeal by virtue of the lack of reasoning regarding the grievances previously mentioned, and order both the Instituto Costarricense de Electricidad and the Procuraduría General de la República to pay legal and procedural costs in favor of the civil defense of [Name012], by virtue of the reckless, untenable, and bad faith lawsuits." "e) Uphold this appeal and dismiss on the merits the civil lawsuits filed both by the Instituto Costarricense de Electricidad and by the Procuraduría General de la República, since the damages claimed by both civil plaintiffs are non-existent, ordering both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." VI.- THE APPEAL OF LICENTIATE CRISTIAN ARGUEDAS ARGUEDAS IS RESOLVED.- The disagreement of Licentiate Cristian Arguedas is valid; failure to resolve in the judgment what concerns the civil actions presented constitutes a denial of justice. A) Regarding the civil action for damages of the Instituto Costarricense de Electricidad. In Considerando XV of the challenged judgment, the issue of civil actions for damages is addressed. It is indicated that:

"The Civil Action for Damages filed by the Instituto Costarricense de Electricidad lacks an adequate factual basis to support the founded claims and the possibility of exercising the right of defense and control over the principle of congruence between the judgment and the civil action for damages, a defect that, in itself, constitutes an insurmountable obstacle at this stage of the process that prevents this Court from ruling on the merits of said civil action." (judgment, page 1862).

According to the trial court, Article 112 subsection d) of the Código Procesal Penal (specifically the indication of the grounds on which the action is based) implies that the civil plaintiff must provide a clear, precise, and detailed description of the facts on which the civil action is based, to safeguard the principle of congruence (cf. judgment, pages 1862 to 1873). The court indicates that this ground must be established at the time of formulating the request for constitution as a civil plaintiff, and that it would in no way be admissible for it to be done in the closing arguments of the trial as the ICE representation intended (cf. judgment, page 1873). It adds that the lack of the formal element of the description of the facts leads to a civil action for damages having to be declared inadmissible, in accordance with Article 291 of the Código Procesal Civil (cf. judgment, page 1874), but that:

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

And further on it adds:

"Given such a panorama, the appropriate course is to abstain from making a ruling on the merits of the civil action for damages filed by the Instituto Costarricense de Electricidad, whose formal defects evidently should have been corrected in earlier stages of the process, and if not done, to proceed to the declaration of inadmissibility, however, as already anticipated, at this stage of the process, the only solution the Court finds is not to rule on the merits so that the interested party may make their claims in the civil venue" (judgment, page 1879).

We consider that the trial court's reasoning is erroneous: even assuming that the very detailed description of the facts that the lower court (a quo) misses constitutes a requirement of the initial brief to become a civil plaintiff (a formalistic criterion that this chamber does not share), in any case it should have resolved what was appropriate regarding the merits of the matter, since having reached trial, the process cannot be retracted to precluded stages—admissibility or constitution—under the pretext that the civil plaintiff "completes its action and corrects the defect" (judgment, page 1873) of its constitution request (this is expressly prohibited by Article 179, second paragraph, of the CPP), much less to refer the parties to the civil venue. What the trial court ordered constitutes a clear denial of access to justice, a formalism that has no reasonable basis in Article 112 subsection d) of the CPP and that results from an interpretation of that norm that clashes with the rule set forth in Article 2 of the CPP, an error that must be rectified. Also, take into account what will be said in the following subsection of this considerando. B) Regarding the civil action for damages of the Procuraduría General de la República. Between pages 1879 and 1892, the trial court adds that it is also not possible for it to rule on the merits of the civil actions formulated by the Instituto Costarricense de Electricidad and by the Procuraduría General de la República, because both made an inadequate formulation of their claims, because "...there is no damage for which all the defendants must respond jointly and severally, which is the assumption upon which the civil claims were liquidated by the Instituto Costarricense de Electricidad and the Procuraduría General de la República. What could exist are damages caused by the criminal conduct of determined groups of defendants, for which the defendants of the group and eventually third parties would respond jointly and severally, independently of the eventual damages caused by other groups of defendants" (sic, pages 1884). Each group of defendants, the lower court (a quo) explains, has its own responsibility independent of the other groups, insofar as the accusation does not establish participation in all the crimes, by all the defendants, the only possibility of joint and several liability of all, for the entirety of the eventual damage caused. In addition—the trial court states—there are instances in which the responsibility of the State or the Instituto Costarricense de Electricidad is ruled out, so it was necessary to specify the damages claimed and the claims for each group of jointly and severally obligated parties, which the civil plaintiffs did not do (cf. judgment, page 1886). The trial court points out:

"By proceeding on the part of the civil plaintiffs (Procuraduría General de la República and Instituto Costarricense de Electricidad) to liquidate claims in the manner they did, they leave the Court unable to rule on the merits of the same. To rule validly, the Court would have to disaggregate the different groups of jointly and severally liable debtors, determine the specific facts attributable to them, and determine the eventual damage that those facts could have caused to the Instituto Costarricense de Electricidad and/or to the collective or diffuse interests that the Procuraduría General de la República represents. From the foregoing, it would be possible to assess the civil claims, which would have to be modified in accordance with the mentioned factual assumptions, which are the cause of the same. The foregoing is not a task that the Court can carry out, because these are aspects whose determination are the exclusive province of the parties and not of the Court, which, were it to do so, would lose its objectivity and impartiality by supplying the deficiencies of the parties and would violate the principle of congruence, by resolving outside of what was requested. The foregoing is aggravated by the circumstance that no attempt was made to establish the individual damage eventually caused by each group of jointly and severally liable debtors, so that, even if the Court decided to do the work for the civil plaintiff parties, it would lack the inputs to do so, and were it to do so, it would ultimately be only in judgment that the civil defendants would come to know what the concrete, determined, and specific claims that were formulated against them were, in which case due process would be violated, which requires that the specification of claims must occur before the conclusion of the preparatory procedure, so that the civilly sued parties could properly exercise their right of defense, which would be violated if the Court were to rule on the merits of the claims as they were formulated." "Added to the foregoing, it was also not considered that the same Instituto Costarricense de Electricidad that is suing for the reparation of damages and losses in its favor is one of the legal entities that, according to the law, are jointly and severally obligated with the civil defendants for their reparation. In other words, had the damages and losses claimed by the Instituto Costarricense de Electricidad been produced, said institution must bear part of those damages, as its own public officials (members of the Board of Directors and others) intervened in their production. In other words, and in principle, the Instituto Costarricense de Electricidad is a solidary debtor for the entirety of the damages and losses it claims, so having borne them in their entirety—which is equivalent to having fully assumed the solidary obligation—should their existence be proven, the other solidary debtors, vis-à-vis the Instituto Costarricense de Electricidad, do not have joint and several liability, but the liability that exists among solidary debtors within the internal relationship. In this regard, numeral 649 of the Código Civil establishes that "Solidary codebtors divide the debt among themselves in equal parts, unless there is an agreement to the contrary."" "As the civil action for damages of the Instituto Costarricense de Electricidad, a solidary civilly responsible party for the damages it claims, is directed against others of the solidary obligors, the claim must be limited to the proportional part that corresponds to each one, which can only be determined starting from the consideration of the totality of solidary obligors, since the debt is divided in equal parts among all. What is being sought to enforce are the actions that a solidary codebtor legally has against the others and not those of the creditor against the solidary debtors. According to numeral 693 of the Código Civil, "Every civil obligation confers upon the creditor the right to compel the debtor to the execution of that to which he is obligated." Regarding the amount of reparation in solidary obligations, facing another solidary obligor, a debtor is only obligated for the proportional part that corresponds to them and not for the totality (Art. 649 of the Código Civil), the foregoing when dealing with private parties. In the case of public officials, each one responds according to their degree of participation in the act, and in that determination, all participants must be taken into account even if they are not a party to the trial (Art. 205, subsection 1 of the Ley General de la Administración Pública)." "Thus, the Instituto Costarricense de Electricidad could not claim the entirety of the damages and losses caused from the civil defendants, nor did it have a solidary action against them. In the first place, it should have determined a concrete and specific claim regarding each group of solidary debtors, considering the concrete and specific damage that the concrete act produced; moreover, it should have specified, regarding each civil defendant and in the context of each group of solidary debtors, the specific claim through a proportional distribution of the claim, in the case of the private defendants, according to numeral 649 of the Código Civil, and regarding public officials, that specific claim should have considered the degree of participation of each official (Art. 205, subsection 1 of the Ley General de la Administración Pública), all of which, of course, should have had full support in the description of the facts, which should have provided the factual substrate for the claim, aspects all of which are determinable exclusively by the civil plaintiff." "As already indicated, in application of both the Ley General de la Administración Pública and the Código Civil, the concrete determination of the claim should have taken into account not only the civil defendants regarding each group of solidary debtors, but the totality of solidary obligors according to the law, including those not sued, who must be equally considered in the distribution within the civil liability in the case of solidary obligations, because otherwise the other solidary debtors would be harmed by increasing their liability. The Court again could not supply the neglect of the party without seriously violating important principles of civil procedure, such as the objectivity and impartiality of judges, the right of defense, and due process in general, by allowing actions contrary to the legal provisions that regulate the civil action for damages that affect the correct development of the process and the right of defense of the parties, who would only learn what the concrete claim against them consisted of when the judgment is issued." "Similar challenges can be made to the civil actions raised by the Procuraduría General de la República, a State body which the Código Procesal Penal entrusts with the exercise of the Civil Action for Damages in representation not of the State, but of Collective and Diffuse Interests (Article 38 of the Código Procesal Penal). The Procuraduría General de la República could not ignore, when formulating the civil action for damages and its claims, that the State and the Instituto Costarricense de Electricidad were also identified by law as solidary obligors to respond for the damages and losses to the collective or diffuse interests, the indemnification of which is being sought. The foregoing because public officials from the Executive Branch, the Legislative Branch, and the Instituto Costarricense de Electricidad intervened in the eventual production of the damages and losses. By not establishing a civil action for damages against said entities, the Procuraduría General de la República breached its obligations according to numerals 20 and 21 of its Ley Orgánica. According to the first, "The attorneys (procuradores) have, regarding the lawsuits in which they intervene before justice authorities, the powers that correspond to judicial agents (mandatarios judiciales), according to common legislation, with the following restrictions: they are absolutely prohibited from acquiescing (allanarse), settling (transar), conciliating (conciliar), or withdrawing (desistir) from the lawsuits or claims, as well as submitting lawsuits to the decision of arbitrators, without the prior written authorization of the attorney general (procurador general), the deputy attorney general (procurador general adjunto), or the official to whom they delegate. What is done in opposition to the preceding paragraph shall have no value or effect, in or out of court, and the nullity of the proceedings to which the violation reasonably gives rise must be declared, even ex officio, by the courts of justice." The second cited numeral states: "The servants referred to in the previous article are prohibited from: failing to establish the lawsuits or claims in which they must intervene as plaintiffs; (…)."" "In such a manner, the Procuraduría General de la República, when claiming social damage representing collective and diffuse interests, could not demand total joint and several liability from all the civil defendants, without differentiating, as was appropriate in this case, among the different groups of solidary debtors, needing to determine regarding each group what the concrete criminal act attributed was and the damage caused thereby, all factually supported in the description of facts." By not proceeding in this manner, but instead through a global claim, as if all civil defendants had participated in all the accused crimes and without describing in the facts the specific damage caused by the specific act with respect to each group of jointly and severally liable debtors, the Court, just as in relation to the civil action for damages filed by the Instituto Costarricense de Electricidad, finds itself unable to rule on the merits of the civil actions because to do so it would also have to do the work for the civil plaintiff, regarding matters that only concern it, with the corresponding loss of objectivity and violation of due process manifested in the principle of congruence, the principle of inviolability of the defense, and the principle of impartiality." "The actions of the civil plaintiffs involve deficiencies in the civil actions, which, for the reasons stated, prevent the Court from ruling on their merits. It is true that such defects could have been corrected with timely and appropriate intervention by the courts that acted in the stages prior to the debate, mandating their correction, but by not doing so and by admitting the civil actions in the form they were filed, they contributed to the defective procedural activity not being overcome and continuing until this moment when no corrective measure is possible, and because the procedural activity involves defects of an absolute nature such as the violation of due process and the right to defense, it is not possible to consider said activity corrected, making applicable the provisions of numeral 194 of the Code of Civil Procedure [Código Procesal Civil] [...]" "Just like the Courts of the preparatory and intermediate proceedings, the civil defendants could also have alleged the noted defects to the civil actions for damages in the prior stages and not wait until the conclusions of the debate, in which case they also had their share of responsibility in the defects not being overcome and the Court being able to rule on the merits of the allegations, claims, and exceptions formulated." "Pursuant to the foregoing, the appropriate course is to omit a ruling on the merits of the civil actions filed by the Procuraduría General de la República and the Instituto Costarricense de Electricidad and to refer them to the civil jurisdiction so that their claims may be adjudicated." (Judgment, pages 1887 to 1892).

Again, the trial court's reasoning is erroneous; note that it says it cannot step in to supply the deficiencies or negligence of the civil plaintiffs without violating its objectivity or impartiality, that it cannot do the work for the civil plaintiffs of properly specifying their claims with respect to each civil defendant, yet it chooses to "omit a ruling" and refers them to the civil jurisdiction, so that there they may correct all the supposed errors they made when constituting themselves (recall what was said in the previous section of this recital) or when formulating their claims, a decision that truly compromises the objectivity and impartiality of the judge, because it denotes a tendency (or "paternalism," as Mr. Alejandro Batalla said in the oral hearing) favorable to the civil plaintiffs, which significantly aggrieves the civil defendants, who are deprived of a judgment that promptly and fully defines or resolves the situation until the civil plaintiffs manage to properly conduct their proceedings. An injury has been caused to the appellant that must be corrected in this venue.

• C)Regarding the costs [costas]. The issue of costs was resolved in recital XV, subsection D (judgment, pages 1892 to 1893). The trial court states that it resolves without a special ruling on costs regarding the civil action, on the grounds that since a ruling on the merits was omitted, the conditions for a ruling on costs are not present, adding that the civil plaintiffs had plausible reasons for litigating. As argued by Mr. Arguedas, on one hand, there is no express explanation of why it can be assumed that the civil parties had plausible reasons for litigating, a defect which leaves the decision without foundation; article 266 CPP clearly indicates that the court must issue a reasoned decision on the payment of procedural and personal costs when issuing the resolution that concludes the case. On the other hand, according to what has been said before, by having omitted a ruling on the merits of the civil actions, the lower court committed an error that directly impacts the fixing of costs (cf. article 270 CPP), causing injury to the parties, which must be corrected in this venue.
• D)Conclusion. The errors indicated in this recital regarding the civil actions and costs have caused an injury to the civil defendant [Name012] and by application of the extensive effect, his appeal benefits the other civil co-defendants, since it is not based on exclusively personal reasons (cf. article 443 of the CPP). It should be borne in mind that article 124 of the Code of Criminal Procedure [Código Procesal Penal] warns that "From their intervention in the proceeding, the civilly sued third party shall enjoy all the powers granted to the accused for their defense, in what concerns their civil interests." Regarding the correction or amendment that is appropriate to make in this case, it is not possible for this Chamber to make it directly—as Mr. Arguedas intends—but rather it is necessary to order a trial de novo [juicio de reenvío] to the competent criminal court so that, with a different composition, it proceeds to a new substantiation of those aspects (civil actions for damages and costs). The correction must be made in a trial de novo—in this same criminal venue—with the guarantees of an adversarial proceeding to preserve the principle of procedural equality (article 6 of the Code of Criminal Procedure) and to allow any of the civil parties who might eventually feel aggrieved the opportunity to challenge what is decided through the appeal [recurso de apelación]. The trial on the civil consequences and costs must be conducted according to the rules set forth in article 359 of the CPP, and on the basis that the act accused by the civil and criminal plaintiffs against the civil co-defendants was not proven at trial.

For all the foregoing reasons, the appeal filed by Mr. Cristian Arguedas is granted, the judgment is annulled in its civil aspect, insofar as it ordered to omit a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as well as the decision regarding costs, and the case is remanded [reenvío] to the competent court for the new substantiation of those aspects.

VII.- THE APPEAL OF [Name001] FILED BY PUBLIC DEFENDER YAMURA VALENCIANO IS RESOLVED.- 1. Regarding the crime of improper bribery [cohecho impropio]: Of the issues proposed by Ms. Yamura Valenciano Jiménez, representing Mr. [Name001], she has expressed her disagreement with the judgment through various writings, the first of which is a "cassation" appeal [recurso de casación] filed on August 30, 2011 (cf. Volume XXXVII, folios 17685 to 17738), and subsequently in an appeal by conversion. This Chamber proceeds to resolve the grounds that by themselves entail the nullity of the judgment and the acquittal of the defendant for the crime of improper bribery in the modality of aggravated corruption.

First Section.- Defects that by themselves entail the nullity of everything decided.

A. Dismissal due to statute of limitations of the case [Prescripción de la causa]. In the first ground of Ms. Valenciano's appeal, a violation of due process is alleged because the case had prescribed [haber prescrito la causa]. She indicates that she raised the objection of prescription [excepción de prescripción] in various instances, and it was rejected. The reason stated by the Trial Court to dismiss the prescription was based on the declaration of complex processing of the case issued on March 3, 2006, with the judges considering that by virtue of this, the reduction of the prescription term could not be applied, pursuant to the provisions of the third paragraph of article 376 of the procedural legislation. As the defense argues, procedural acts are governed by the law in force at the time they occur and take effect according to that law. According to Ms. Valenciano, article 376 CPP does not give the declaration of complex processing any possibility of making its effects retroactive nor of interrupting the prescription. Her claim is well-founded. The initial period for the statute of limitations of the criminal action [prescripción de la acción penal], in the case of Mr. [Name001], is five years for the crime of improper bribery in the modality of aggravated corruption, which, according to the provisions of articles 340 and 342 subsection l), has a maximum penalty of five years. Therefore, five years is the full prescription period that had to be counted, until any of the acts that interrupt the prescription and reduce the term by half occurred. The first act interrupting the prescription occurred on October 8, 2004, the date on which the accused appeared to give his statement on the facts, so that from that day on, the period for calculating the prescription went from five years to two and a half years, or what is the same, thirty months. Those thirty months were completed on April 8, 2007, without any of the grounds for interruption provided for in article 33 of the Code of Criminal Procedure or for suspension established in article 34 occurring during that time. Therefore, by the time the preliminary hearing [audiencia preliminar] was scheduled for the first time, that is, on September 10, 2007, the criminal action against [Name001] for the crime of improper bribery had already prescribed, and with it, the State's power to prosecute him criminally. The reasoning that supports this conclusion has already been expressed when resolving Dr. [Name012]'s appeal, to which reference is made to avoid unnecessary reiterations. It is therefore appropriate to declare the case against [Name001] dismissed due to the statute of limitations [prescrita] and to acquit him of the crime of improper bribery in the modality of aggravated corruption for which he was being charged.

B. Defects in the determination of the act and the evaluation of the evidence to determine the indications that led to the conviction for the crime of improper bribery. In the Second ground of Ms. Yamura Valenciano's Appeal on behalf of [Name001], the violation of the rules of sound criticism [reglas de la sana crítica] was alleged, specifically the rules of logic, the principle of derivation, regarding the crime of improper bribery. She indicates articles 1, 6, 9, 142, 361, 363, and 369 of the Code of Criminal Procedure as applicable regulations. The appellant submits that it is taken as proven that her client accepted a promise of a gift from the company ALCATEL in exchange for performing the necessary actions so that said company would be awarded the abbreviated process 1-2001, within the scope of his functions as advisor to the presidency and coordinator of the interdisciplinary commission in charge of the project called 400K. To reach this conviction, the Trial Court gave importance to four evidentiary elements. On one hand, a video from the company REPRETEL from 3:59 hours on January 29, 2004, an invitation to lunch, as described in evidence number 81, document 8 of evidence number 396 (folios 17, 19, and 21), the internal ICE memorandum PE-0102-P of February 22, 2002, evidence No. 75, folios 324 and 325, and, finally, evidence 686, which contains the so-called "action proposal" [propuesta de acción] of [Name058]. According to [Name001]'s defense, from these evidentiary elements, it is not possible to derive the conviction criterion expressed in the judgment, in the sense that [Name001] accepted a promise of a gift from [Name015] and [Name035] in late 2000 and early 2001. The claim is well-founded. Even though the act is considered prescribed, and for this reason it would be unnecessary to continue any discussion regarding the crime of improper bribery imputed to [Name001], this Chamber considers that the determination of improper bribery in its modality of aggravated corruption that was being attributed to him cannot be derived from the evidentiary elements that were taken into account by the Majority Court. This Chamber finds that the indications the judgment attempted to construct do not reach the relevance and specific weight necessary to impute criminal liability to [Name001]. In this regard, it must begin by stating that the action proposal designed by the political scientist [Name058] was not an invitation to commit corruption crimes and promote the illicit activity of public officials. Starting in 1999, it was not possible to define the directions that the issue of cellular opening in Costa Rica would follow. [Name058] designed a strategy that essentially meant the need to reach important sectors in public decision-making and convince them of the need to head down that path. In other words, Mr. [Name058] was pointing to the need to promote approaches that would facilitate the path of a possible opening in the telecommunications issue, but his plan did not encompass bribery and the promotion of corruption of public officials. In 1999, in effect, Mr. [Name001] was not an employee of the Instituto Costarricense de Electricidad. [Name001]'s arrival at the institution occurred with the objective of unblocking some processes that at that time were indispensable for the smooth running of the ICE, and in which [Name001]'s expertise, due to his previous experience, would be of great help. The decision for his entry into the ICE is the result of the efforts of Mr. [Name052]. At least here, there is no influence from Alcatel and [Name015] to introduce a key person for their interests into the ICE structure. The judgment itself, at folio 15894 (folio 1452 of the judgment, Volume XXXIII), accepts that [Name001] began working at the ICE in October 2000 as Executive Assistant of Superior Administration in the Executive Presidency, a designation formalized as of January 1, 2001. Among other activities entrusted to him were the reading and study of documents, advice, and recommendations on topics confided to him, as well as representation of the ICE in some forums before governmental and non-governmental bodies. The verdict refers to the coordination work assigned to [Name001] in the abbreviated process 1-2002 for the leasing of the 400 thousand GSM cellular lines (folio 1452). The designation was communicated by the Executive Presidency to the different Strategic Business Units (UEN's) on February 22, 2002 (evidence 75, folio 324). At folio 15896, the majority vote affirms that the one who appointed [Name001] is none other than [Name052], who confirmed in his statement that the official's arrival was to help "recover the peace" of the institution, seriously affected by the events that occurred with the "combo eléctrico." Mr. [Name052] affirmed having met [Name001] at the Universidad Nacional, in the School of Planning, and after hearing about his skills and characteristics, he decided that he was the person he was looking for for those pacification tasks, which he indeed fulfilled (folio 15896, folio 1454 of the judgment, Volume XXXIII). Regarding the coordination in the process of the concession of the 400 thousand cellular lines, it was [Name001]'s task to manage communication with the various groups so that they could present their technical criteria, in addition to being very active in the efforts taking place inside and outside the institution, such as, for example, before the Contraloría General de la República. As the conviction judgment finds, [Name001] was a person who lacked experience in the telecommunications issue, and it is surprised by Mr. [Name052]'s decision to hire him, however, it goes no further than pointing out a possible negligence in his designation. In this regard, it takes the opinion of Ms. [Name059] (folios 15896 to 15897 folios 1454 and 1455 of the Judgment Volume XXXIII) who alludes to that lack of technical and legal experience, which, however, was overcome over time. In general, the judgment concatenates elements to consider [Name001] as a key figure in the process of defining the 400 thousand cellular project, an activity to which he devoted himself intensely, as several witnesses indicated in the verdict made known, such as the case of Mr. [Name060] and Mr. [Name061], who had contact with him and met him around that time, but also located in these tasks by Mr. [Name062], Deputy General Director of Alcatel and [Name063], Director of the Unit for the Execution of Developments and Projects of the ICE (folios 1455 and 1456 of the judgment). From what is stated in the verdict, it can be deduced that at a certain point, Mr. [Name001]'s main activity consisted of supporting and coordinating activities related to the project of the 400 thousand cellular lines. The court's thesis consists of imputing to [Name001] the acceptance of a promise of a gift, between late 2000 and early 2001. The promise supposedly came from [Name015] and from [Name035], with the objective that he would carry out actions within the scope of his functions as advisor to the Executive Presidency of the ICE, and as the person in charge of executing the 400 thousand lines project, to favor Alcatel in this matter. The majority vote accepts that this conclusion must be produced indirectly, since these are illicit activities, forged in secrecy, and therefore a conclusion about them must come from the concatenation of indications. This is how the first element assessed by the Court is reached, that is, the Repretel video from 3:59 hrs. on January 29, 2004, where [Name001] accepted having received money from Alcatel, that he would assume the consequences of his illicit behavior, and that everything was due to a spiritual weakness on his part (folio 1457 of the judgment). Defender Yamura Valenciano disputes this indication. She argues the thesis that her client only accepted having received a sum of money, but that this in no way means the acceptance of a specific criminal classification, in particular, bribery, and that rather it was a case of illicit enrichment [enriquecimiento ilícito], which would already be prescribed. In effect, Mr. [Name001]'s spontaneous statement does not provide certainty as to what he committed in terms of a criminal figure, he only affirms having received a sum of money that he considered an illegitimate act for which he would assume consequences. According to the court's thesis, it was not necessary for [Name001] to qualify his action from a criminal-legal perspective, that it was a journalistic interview that must be assumed and interpreted judicially. It is thus that it begins to intertwine that statement by [Name001] with the so-called evidence no. 396, which apparently has a close relationship with evidence no. 75 and 686, as well as with document 8, folios 17, 19, and 21, all with the letterhead of Servicios Notariales QC S.A. With regard to the notes included in evidence numbered 396, identified as document 8, at folios 17, 19, and 21, evidence to which the court says it gives full credibility, Ms. Valenciano reproaches that the right to defense has been violated since the dubious authenticity of the same was argued, as they did not bear any element that would allow knowing if they were sent or received, in addition to being unsigned and without reference to who prepared them. This was alleged, but the claim was rejected by the Court. According to the defense's thesis, it cannot be deduced from these documents that [Name001] received any promise of a gift from [Name015], and it only refers to the fact that the appointment of [Name001] was made by [Name052], and that [Name001]'s intervention arose from the ICE itself to unblock the execution of projects. What the note actually reveals is that an initial approach is made with an official surnamed [Name061], with whom there is not much progress, and that they require a change of interlocutor. The person signing the note says they know [Name001], a person recently appointed by [Name052], and that this person could be Alcatel's interlocutor in the negotiations aimed at the new cellular expansions. In fact, the note alludes to certain characteristics of [Name001], qualifying him as "more political" and that he "will not be contaminated by the influences affecting the central administration." From these statements, the idea arises rather that they find in him the conditions to maintain more fluid communication. In a later note, it is added that they managed to have [Name001] "take the lead" in the negotiation, now expecting a "more flexible position from the negotiating group." The reading of this evidence does not generate in this Chamber the understanding that a gift was promised to [Name001], but rather gives the idea that they have a person more inclined to dialogue and to making positions more flexible in the face of a need that is also understood to be political, due to the great market pressure facing an election year. Similarly, a note from November 29, 2000, denotes enthusiasm, as progress has been made in getting the ICE to consider other alternatives for immediate needs. Here, the position of the person signing these notes is aimed at showing a positive perspective regarding progress in the conversations on the issue of the ICE's opening, but it also alludes to the Contraloría's eventual refusal to accept Mr. [Name052]'s proposal of a possible direct purchase, and to the fact that progress was rather moving towards a bidding process (cf. fls. 1458, 1459). The direct purchase, it must be said, was an objective set by Mr. [Name052], and he directed his efforts towards it, clashing, however, with the Contraloría's refusal, as will be seen later. The writer of the notes was analyzing the progress of the opening process, the setbacks, the difficulties, and the role of [Name001] in the progress. A derivation from this, for example, that [Name001] had accepted a gift cannot be proposed, only that there was allusion to positive information about an institutional climate inclined towards cellular opening. It is in this manner that the court proceeds to include in its reasoning an invitation to lunch from [Name015] to [Name001], coincidentally on a November 29, the same day as one of the notes just alluded to. The judges accept that a lunch means nothing, but they link it to the fact that these invitations are also offered to [Name026] and to [Name021], as if that were the modus operandi for offering gifts, when the truth is that there is evidence that these lunches were also offered to other ICE officials who have not been accused of any crime. But the majority court concentrates on [Name001], but also on [Name004], and deduces from these attentions an illicit closeness, an institutional advantage supported by a remunerative promise, which would ultimately benefit Alcatel in the award of the 400 thousand cellular lines. The judicial discourse pretends not to see these elements as isolated circumstances or at least disconnected from a will on Alcatel's part to influence the entire cellular opening process and ensure its preponderance when intervening in the award of the 400 thousand lines. Upon reaching this point in the argument, they proceed to study the internal memorandum PE-010-P of February 22, 2002, sent by the Executive Presidency of the ICE to the Strategic Business Units (UEN's), where it is reported that for the abbreviated contracting process for 400 thousand GSM lines, a commission had been appointed, coordinated by [Name001] who would be in charge of the study and award process for the project. In that same vein, it is reported that the commission's objective is the study of offers, answering clarifications, evaluation in all aspects, recommendation of the award, consultation, and resolution of possible appeals, all with the goal of having the contract duly countersigned. The commission would depend directly on a high-level body composed of [Name052], [Name061], and [Name027]. Because these notes are supposedly received by [Name015] and representatives of Alcatel Cit in France, they infer that [Name015] is aware of what was happening internally at the ICE regarding the 400 thousand lines project, and of his satisfaction with the designation of [Name001] as coordinator of the commission. However, that satisfaction, generally or specifically, is not derived from that evidence, even though it can be admitted that he could logically be satisfied with the path the whole process was taking, but for which [Name001] alone was not responsible, but rather it was a concatenation of other conjunctural, institutional, and even opportunity factors that were not controlled by [Name001], even if he had wanted to control them. Thus, it can be concluded, at least preliminarily, that the accusation is based on the idea that an offer of a gift was made to [Name001] as the person in charge of the award process for the 400 thousand lines, which he is at least as of February 2001, and there is no clarity on what acts were expected of [Name001], beyond obtaining some advantageous position in a process that was not controlled by [Name001], and that was under the supervision both of control and decision of a higher-level body. The minority vote alludes to this circumstance, regarding the indeterminacy of the acts expected of [Name001], which puts the defense in difficulties and hinders its work, since it is not known what [Name001] did that could have positively impacted Alcatel's expectations. In contrast to the minority vote's thesis, the two main supporting bases of the majority vote's argumentation go in the direction of considering [Name001] an asset of Alcatel that they manage to position in the ICE, and who subsequently becomes a mastermind of the business expectations of this multinational, ultimately achieving the award of the four hundred thousand lines. The truth is that the designation of [Name001] does not come from Alcatel's efforts. His designation comes from a decision-making process in which Alcatel did not intervene, regardless of how pleased they might have been with the designation of a "more political" person and one less "contaminated" by the vices typical of the public administration. Moreover, the effective award did not depend on [Name001] either. His work of coordination and exchange of communication was aimed at creating conditions to make a decision that in the end was not within his purview. The documents signed by "[Name091]", or that at least bear this indication, also do not show that [Name001] received instructions from Alcatel or that he put his services at the disposal of the multinational's expectations. The truth is that these documents, lacking their linkage and subscription, do not allow proving what the Court wants to derive from them, nor can the concatenation with the video or the notes addressed to the UEN's support the idea that [Name001] received a specific promise from Alcatel. The video may allow the derivation of the receipt of a gift for an accomplished act, after the effective award, if one wishes to extract a criminal-legal consequence from what the defendant stated, or, at least, the acceptance of illicit enrichment, but it is not indirect proof of a promise of a gift, however much one might want to think so given the decidedly extraordinary conditions of that public acceptance of illegitimate conduct by [Name001] to Repretel journalists. These funds were decidedly not received for legitimate acts, as [Name001] accepted, but the information did not contextualize why they were received, or in exchange for what they were received.

Without that prior promise, active bribery collapses under its own weight and leaves standing only subsidiary figures that could well have been charged by the Public Prosecutor's Office. The defense counsel's complaint about the prosecution's accusatory work, and the trial court's effort to concatenate circumstantial evidence, leads her to discuss the logical problems of the judgment, which prevent imputing conduct of active bribery to both [Nombre001] and [Nombre004], and the ample margin existing to acquit them based on *in dubio pro reo*, at least due to the lack of clarity regarding which illicit actions they were being pursued for, and specifically which acts were carried out in relation to Alcatel's expectations. The judges in the majority opinion accept that the final decision in the award process was not within [Nombre001]'s purview, but insist that for [Nombre015] and [Nombre035] it was important to have a key person on the coordination commission, since they already had [Nombre027], [Nombre026], and [Nombre004] in key positions.

The conviction of [Nombre027] and [Nombre064] in separate abbreviated proceedings gave the trial court certainty of this chess-piece game that Alcatel designed to ensure its success in this award process. They add to this the document prepared by the external consultant Mr. [Nombre058] (folio 1463 of the judgment), called “action proposal,” which alludes to the need to approach people from different factions, whether business, religious, and, above all, political, encompassing the entire ideological spectrum, in addition to deputies, former presidents of the Republic, pre-candidates for the Presidency of the Republic, the political directorate of Liberación Nacional, and even the advisory services of a former president. According to the majority judgment, this would have influenced the considerations of [Nombre015], as the representative of Alcatel Costa Rica, to carry out the plan of approaching [Nombre001], [Nombre004], and the rest of those involved in the case. However, the consultant's document did not promote the creation of a network of bribes and corruption, but rather gave advice on how to achieve a consensus favorable to a telephone opening solution aimed at the use of the GSM network.

The strategic plan designed by this political scientist, aimed at preparing Alcatel's participation in the Costa Rican cellular market, did not involve committing crimes, nor does it say that public officials must be corrupted with gifts to achieve their participation and consent. The document by [Nombre058], as defense counsel Yamura Valenciano explains, is not an element that allows justifying the conclusion that it is the basis of the corrupt criminal plan, much less the supporting source for the eventual illicit behaviors of Alcatel's directors. In Considering “V” of the Judgment, in some background elements of the case, it was taken into account that Alcatel was a company that was outside the direct purchases of telephone services made to Ericsson and Lucent Technologies, companies already positioned in the national market thanks to their distribution of TDMA networks, dominant up to that moment. According to the majority trial court (folios 974 and 975 of the Proven Facts - Considering V -, Volume XXXII), this state of affairs did not suit Alcatel, so its directors, among them [Nombre015], planned a strategy of approaches to change that situation.

On January 26, 1998, through 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 commitment that these lines would not be used to meet demand needs, an aspect that was later corrected in a Council session in April 1998. Regarding the issue of ICE's opening to GSM (PCS) lines, the Board of Directors made the decision not to venture into them until such topic was included in the Telecommunications Law (Session No. 5042 of February 2, 1999). Here there are already signs that venturing into this field was being evaluated since 1999, with the reservation, of course, that it would not be done until the relevant law contemplated this new field of development.

Meanwhile, other decisions of the ICE Board of Directors were aimed at arranging direct purchases of additional cellular lines from Lucent Technologies and Ericsson, in equal parts, which signified a natural movement, taking into account that it was said TDMA technology that dominated the cellular telephony market at that date. Later, through another agreement, it was decided to increase by 10 thousand lines of this type with Ericsson for the metropolitan area. The movement was explainable given the high demand for cellular lines and the prevailing technology at that date, it must be emphasized.

It was thus that a direct purchase of 100 thousand cellular lines was then decided upon, from the two existing suppliers at the date (Lucent and Ericsson) under the protection of article 79.1 of the General Regulation of Administrative Procurement (folio 976 and 977 of the judgment). According to the report in the judgment, Alcatel disagreed with this course of events, considering that the direct purchase was not justified, since the articles desired to be acquired were not exclusive. On May 23, 2000, during Session No. 5186, Alcatel CIT made a formal presentation to the ICE Board of Directors about the benefits and advantages of GSM technology. As a result of this presentation, the Council asked ICETEL to prepare and present a feasibility study within a period of three calendar months, including a business plan, that would allow the governing body to make a decision in this regard.

On May 30, 2000, in Board of Directors Session No. 5187, after some statements by the members, it was decided that it was not the time to make direct contracts with suppliers other than those already established or to migrate to another technology, but a period of sixty calendar days was established to conduct a feasibility study, a business plan, and a draft bid specifications for GSM-PCS technology, to determine the viability of the technology change and the expansion of telephone technology suppliers for upcoming contracts (number 24, folios 977 and 978 of the judgment, Volume XXXII). Up to this point, it could not be said that ICE was not interested in migration towards another technology, or that all possibility of introducing Alcatel among the cellular technology offerors in Costa Rica was discarded.

This Chamber believes, as defense counsel Yamura Valenciano well considers, that these steps are directed at creating decision-making conditions that would allow migration towards another technology, with all the necessary technical studies to make a reasoned decision in this regard. Thus, on June 13, 2000, in Board of Directors Session No. 5191, it was agreed to give a period of 45 calendar days to the Sub-Management of ICETEL to present a comparative study to continue understanding the contracting of GSM-type cellular lines, suspending what was decided in Session No. 5182 of May 9, and it was ordered that the requested report be presented on July 30, 2000. The need for a decision by ICE on the issue of the demand for cellular lines existing in the country at that date is noted, and the framework or horizon of possibilities that was opening at that moment, which was almost restricted to continuing with the growth in TDMA lines or migrating to GSM technology, which promised aggregated services and more favorable prices.

ICE's decision seemed to be defined by this demand factor, but also by the situation arising with the available technologies. It is for this reason that benchmarking studies (for installation cost comparison), feasibility studies, and business proposals were essential elements for a correct decision according to the needs of the country, attending to the public interest evident in this matter. This can be read from the decisions of the ICE Board of Directors that are reviewed.

However, the judgment interprets that this entire panorama was adverse for Alcatel, that decisions were not taken with sufficient speed, and that [Nombre015] and [Nombre035] needed to ensure Alcatel's preponderance, since the actions of this Council were not directed at accelerating decision-making. From there, the judges derive the need for these defendants to corrupt public officials, directly or indirectly linked to the decision, to achieve their objective of getting ICE to open the bidding process on GSM cellular lines and for the final result to favor Alcatel (cf. number 28 of folio 978 of the judgment, Volume XXXII).

On July 11, 2000, in ICE Board of Directors Session No. 5199, it is possible to verify that the decisions ICE was making were inspired by the search for the best technology, at the best price, in order to meet the growing demand for cellular lines that afflicted the country, through the most suitable contracting system according to the Costa Rican legal system. By virtue of these guiding lines, it is decided to form a commission composed of [Nombre065] and [Nombre004], so that, with the support of an external consultant, the legal viability of using a special abbreviated procurement procedure for the supplier companies be analyzed, allowing the acquisition of mobile technology equipment in the shortest time (number 29, of folio 979 of the judgment, Volume XXXII).

Events then begin to move towards the acquisition of GSM technology telephone services. The ICE Board of Directors, in session No. 5249, in accordance with the recommendations of the technical area, ordered the implementation of this technology in the 1800 MHZ band, and as indicated by the UEN for mobile telephony, which had explored the technical feasibility of 400 thousand mobile telephony solutions starting from existing fixed switches from Alcatel, Siemens, Nortel, Ericsson, and Lucent. From here the idea can be derived that the decision for GSM technology did not arise from Alcatel's pressures, but was an institutional objective, based on technical decisions and business recommendations that allowed observing GSM technology as an opportunity to satisfy the existing demand and the expected growth of the Costa Rican market.

The ICE Legal Advisory, through document T-15547 ALCO 1187 of December 5, 2000, and taking into account adaptability, technological convergence, and public interest, considered the direct contracting suitable. The ICE Board of Directors reasoned, in turn, that GSM technology, being an open standard, allowed the participation of several offerors, which would positively impact the reduction of infrastructure costs and the cost of the final terminals for consumers. Without a doubt, these were considerations that benefited the country, consumers, and in any case, the business and growth expectations of ICE itself.

There was also an endorsement from an internal ICE department, the Legal Advisory, which considered the direct procurement process appropriate. In the cited Session No. 5249, it was decided to request permission from the Comptroller General of the Republic to expand the switches through the direct procurement procedure, and Mr. [Nombre052] signed the notes addressed to the comptroller body. Finally, the Comptroller's Office would not endorse the direct contracting system and would opt for an abbreviated competitive procedure.

The note signed by Lic. Manuel Martínez Sequeira, Manager of the Division of Advisory and Legal Management of the Comptroller General of the Republic, dated January 23, 2001, was made known to the ICE Board of Directors in Session No. 5260 of January 25, 2001. In that note, the “direct procurement” procedure is classified as not viable, but for the public interest reasons outlined, the comptroller entity authorized ICE to implement an “abbreviated competitive procedure” (cf. judgment, folio 980, Volume XXXII). In that very referenced session, No. 5260, the Board of Directors agreed to instruct the Sub-Management of Telecommunications, to immediately carry out a publication in all national circulation newspapers, with the aim of inviting potential offerors of these equipments, which implied not only the existing competitors, some of them already suppliers to ICE, but all those that faithfully conformed to GSM technology protocols.

At folio 981 of the judgment, what was discussed and analyzed in Extraordinary Session No. 5271 can be read. The spirit of said session was oriented towards assessing the problems to satisfy the existing demand for cellular telephone lines, where with the planned movements to acquire more lines, the existing demand would barely be met, leaving a shortfall of more than two thousand six hundred fifty requests. The Board of Directors took into account the donation made by Alcatel, which was received since May 5, 1998, GSM technology equipment that provided the opportunity to meet the existing demand and to do so with favorable and reasonable prices and operating conditions for the institution (folio 981 of Volume XXXII of the judgment).

It was observed that this was a suitable way to mitigate the demand for lines, and it was agreed to accept the proposal of the UEN of Mobile Services for the expansion of the GSM cellular system by 160 thousand lines, through the approval of direct contract number 108792 with the company Alcatel CIT as the manufacturer of the equipment and Arrendadora Interfin S.A. as the leasing company for the same (folio 981 of the judgment, number 38, Volume XXXII). Curiously, on March 20, 2001, when the approval of the minutes of session No. 5271 was put to a vote, the convicted [Nombre027] requested that it be repealed with respect to the expansion of the 160 thousand cellular lines by purchase from the company Alcatel. [Nombre027]'s motion was submitted for discussion and was rejected. Against [Nombre027]'s proposal, [Nombre052], [Nombre026], [Nombre066], and [Nombre004] voted, while directors [Nombre027], [Nombre067], and [Nombre055] voted in favor, so that minutes 5271 became final.

The path would then be open to work on the acquisition of GSM technology lines, to be done through the abbreviated process suggested by the Comptroller General of the Republic. Now, regarding abbreviated process 1-2001, defense counsel Yamura Valenciano points out flaws in the assessment made by the Trial Court, and emphasizes that one of them consists of not having studiously examined the bidding process. At folio 1170 of the judgment, it is stated that the defenses of the various defendants consider the award procedure lawful by virtue of the fact that the expert [Nombre089] so determined, since all the steps legally ordered to achieve it were fulfilled, and furthermore, Ericsson's proposal presented non-compliances and defects that led to its exclusion. They insist, favoritism towards Alcatel does not occur, according to the judges, through the observance or not of the described procedure, but in previous phases, such as when they indicate that [Nombre001] carries out preparatory acts or when the vote takes place on the Board of Directors, where the directors [Nombre027], [Nombre004], and [Nombre026] participate (folio 1171 of the judgment).

In a word, for the Trial Court of Merit, even though the stages of publication of the bid specifications were satisfied, that Alcatel was an offeror, that Ericsson was disqualified, that this latter company's appeal was dismissed, and that the Comptroller's Office endorsed the contract, it cannot be considered - according to the merit judgment - that there were no corrupting and corrupt actions (folio 1171 of the judgment). According to the defense counsel, the judges make mentions of procedure 1-2001 but there is no serious study of it. If it had been done, says Ms. Valenciano, especially in the view of the appeals filed, the Trial Court of Merit would have realized that the decision process was accompanied by technical studies that reflected that all the important aspects were taken into account in the procedure followed, described thus: “…The bid specifications were drafted in a public manner, after calling together the entire telecommunications industry with a presence in the country or their duly accredited representatives. Workshops were held at the Hotel San José Palacio where the bid specifications were assembled with their technical, financial, technological, and legal requirements and the procedure for receiving offers. This led to the articulation of the bidding terms that were finally published. The sense of doing it this way was to achieve a kind of consensus between the industry and ICE that would allow a high-level technological proposal that would at the same time comply with the deadlines imposed by the Comptroller's Office and the provisions of the Law of Administrative Procurement, since if the bid specifications were made jointly, the stage of objections to the specifications would be reduced significantly and with it the times of the process itself.” Witness Ms. Mónica Valerio De Ford was clear in stating that: “…The 400K was a very large leasing contract, for GSM. Complex contract for civil works and another for equipment leasing, it was a very open process from the beginning, that before publishing the bid specifications, all companies were invited. Meetings by ICE with ICE teams, all companies brought their teams to participate.” The bidding terms did not carry Alcatel's “DNA,” but were the fruit of transparent, public work widely discussed with companies such as Lucent and Ericsson that were already ICE suppliers, but Nortel and Motorola also participated apart from Alcatel.

The process reflected, as [Nombre056] proposed, an open procedure with participation from all interested companies. Ms. [Nombre059], expressed on June 14, 2010, in addition to what was proposed by [Nombre056], that in the process ICE's budgetary restrictions were taken into account, so it was a process where there was analysis of the various elements involved, where companies such as Alcatel, Nortel, Ericsson, Nokia, Siemens, and Lucent made their contributions, in meetings that took place in the ICE auditorium, but also in a capital Hotel, which she could not determine if it was the Corobicí or the San José Palacio.

As a result of these verifications, the defense maintains that it was not feasible to think that Alcatel made an offering to the defendant [Nombre001] just at the end of 2000, since Alcatel's entry into GSM technology was already a given and the bidding itself was not an idea from ICE, nor from [Nombre001], but from the Comptroller's Office. Furthermore, at that moment, there could also be no talk of the 400-thousand-line project or a procurement process, since this was something that arose from the Comptroller's Office itself on January 23, 2001. For this reason, it was not possible that a gift was offered to him in the year 2000 for him to carry out effective actions to achieve a successful contract that at that moment was not known.

From the documentary evidence, as stated by Ms. Valenciano, and from the judicial reasoning, it is possible to construct a logical fallacy incurred by the judges in determining fact number 132. In it, it is established that it was [Nombre001], together with other ICE officials, who managed to open the tendering process for the purchase of cellular telephony and the awarding of the contract for the 400 thousand GSM lines in favor of Alcatel, and that it was precisely for this reason that the gift was given to him. However, and just as she explains it, it was not that [Nombre001] “managed” it, nor that the tendering process for the purchase of cellular telephony was opened, which was a decision of the Comptroller's Office, without ICE's participation, since the latter preferred to proceed with the direct purchase. Nor could it be said, the appellant emphasizes, that [Nombre001] managed to have the bidding awarded to Alcatel, since said recommendation to award was the product of an extensive study of the offers that were presented solely by two companies: Alcatel and Ericsson, which were assessed legally, technically, and financially by officials from specialized ICE units, who were not under [Nombre001]'s influence, this last aspect being especially highlighted, due to the multiple technical, legal opportunity, and financial considerations, which were not within [Nombre001]'s expertise, and where he could not exert influence or control.

It is for this reason that the annotations in the judgment on the circumstantial evidence base for imputing these facts to [Nombre001] collapse under their own weight, and due to the solid content of the evidence available about the abbreviated procedure under analysis, which allows deriving the legal and technical correctness for its award. If the overview this Chamber has made is taken, following the points raised in Considering “V” of the judgment under examination, where the context of the entire award of the GSM lines is expressed, it can be observed, without a doubt, that the decision was not easy. There were many reasons to continue with the growth of the TDMA platform, and continue with its technical limitations, or open the national market to a technology that was beginning to be used everywhere in the world, with great advantages and value-added services, which also allowed promptly meeting the needs for new cellular lines that Costa Ricans required.

The merit judgment attempted to present a panorama where Alcatel felt excluded from all the direct purchase processes and urged decisions that would allow the opening to the new technology it could supply. The idea is sustained that to streamline the decision-making process it was necessary to have key figures who would support the orientation towards this path, and who would, moreover, favor Alcatel. In other words, the merit judgment tried to read the various sessions of the Board of Directors, finding in them the “symptom” of a corrupt decision, which would end up benefiting an offeror that had not acted transparently, and that made use of corrupting strategies to ensure the successful outcome of the process.

However, reading these sessions and their agreements allows seeing a Board of Directors that wanted to satisfy the public interest, meet the existing demand, and prepare the country for the challenges that were already looming on the horizon. Before making any decision, technical studies, comparative studies, business strategy designs, and explorations on the positioning of technologies are requested, with the objective of being able to know if the decision to steer the country towards GSM technology and displace the until then dominant TDMA technology was convenient and in accordance with the public interest. This Chamber can perceive that there was interest in said migration and the technical studies endorsed that path.

It is not lost sight of that Alcatel had donated equipment and some GSM lines that ICE accepted, all under the condition of not using them to alleviate the demand for telephone lines. All in all, Alcatel presents the advantages of this technology in a presentation to the Board of Directors, and this generates a positive reaction. Technical studies and then benchmarking studies are requested with the objective of analyzing the technical opportunity and the need for the technological change. All this allows estimating that by May 9, 2000, there was, at least in gestation, an interest in this new technology.

Everything would later lead to a proposal for bidding terms that was inspired by the opening to the new GSM technology, and with technical studies and a legal framework that endorsed the steps that ICE was taking in that direction. The Trial Court of Merit, in its majority opinion, did not detect said trend, and considered that by May 23, 2000, there was not a clear declaration from ICE in that sense, when as has been seen, the Board of Directors itself assessed the public interest of adopting a technology that would satisfy the demand, that would be capable of maintaining a wide number of offerors, and with advantages also for the consuming public.

All this was being said already in May 2000, so there is a significant contradiction in the judgment at folio 1117, where the Trial Court of Merit, in its majority opinion, considers that “…regardless of the economic advantages of the proposal put forward by Alcatel in that session, or of the benefits of GSM technology -, the truth is that the described agreement of the institution's board allows establishing that even by May 23, 2000, there was no clear nor certain determination by said body to venture into GSM technology. It is observed that, on one hand, the collegial body was ordering a market study with a business plan so that the council could make a decision. On the other hand, it ordered that such study be prepared within a period of 3 calendar months, and, finally, it was established that said analysis should be accompanied by a proposal for public bid specifications, which was contradictory because if the decision to opt for GSM technology had not yet been made, it was not understandable how the council, simultaneously, established that it should be accompanied by the specifications for the public tender. (judgment, folio 1117, volume XXXII).

The truth is that there were several decision levels: on one hand, the satisfaction of the existing demand for new telephone lines, and the decision towards a technology that would allow better serving the public interest in quality telephone communications. The Board of Directors' sessions show these two levels very clearly, and it is observed how the decision steps were accompanied by the technical studies and the business-character and opportunity opinions that were pertinent. The majority opinion says there was a contradiction, since even when a decision to opt for GSM technology had not been made, they do not understand why the Council requests to accompany the specifications for the public tender.

This was explainable if it is observed that initially the decision was to buy cellular lines, in equal quantities, from the two existing providers, within the framework of the equipment available at the date. This necessarily entailed continuing with the direct purchase processes that ICE had already carried out before. The opening of bidding terms was precisely to allow the participation of various offerors, not only Alcatel, in said process. In fact, those competitors with experience in supplying cellular technology services that would allow ICE to offer quality at a good price and promptly would intervene.

As well postulated by defense counsel Yamura Valenciano, in the oral defense of her appeal, what suited Alcatel most was the direct purchase and not the abbreviated procedure. In the direct purchase, the acquisition of cellular solutions would be distributed proportionally among each of the offerors, and Alcatel would certainly intervene there. Meanwhile, the abbreviated procedure had several uncontrollable circumstances for Alcatel: the number of offerors, the economic and technical offers, and the evident possibility of not emerging victorious.

Meanwhile, ICE's movements, through the way of Mr. [Nombre052], were heading towards the direct purchase of technology from five competitors. This solution would not finally be endorsed by the Comptroller's Office, which, making a weighting of the public interest that had been exposed by the ICE Board of Directors itself, would indicate the suitability of the abbreviated procedure. The judgment itself clearly emphasizes that Alcatel was denied the possibility of participating in the direct purchase of the original 100 thousand cellular lines, and that a public bidding would be held for the acquisition of GSM technology (folio 1119 of the judgment, volume XXXII).

The pertinent technical studies were required with the objective of being able to proceed with the bidding, and a period of 60 days was set to obtain said studies. The judges in the majority opinion prefer to lean towards viewing the path towards the acquisition of GSM technology as uncertain, or at least unclear, and not as an immediate decision.

However, they accept that this was conditioned on the preparation of technical studies. The position of [Name027] and [Name004] is cited to the effect that they insisted on the direct purchase of more TDMA technology cell lines, which would have to be made from the providers already present at ICE, namely Lucent and Ericsson. Alcatel was not and could not have been involved here. On page 1122 of the judgment, it is clearly read not only that the judges dismissed the consistency of ICE's decision to move toward GSM technology, but also that there was a double discourse in the Council, because while the advantages of the multi-provider offered by GSM technology were being assessed, direct contracting continued, with the judges disregarding the two levels of decisions that have been raised earlier, and which are justified by ICE's dependence on the TDMA infrastructure that had been dominant in the country until that date. The same judges also emphasize that the benchmarking studies indicated a drop in prices for cellular interconnections, meaning the path toward a technology opening was not nonsensical but a natural step that needed to be evaluated, and which ICE's executives were clearly undertaking. However, the judges highlight the campaign carried out by Alcatel and other providers in the media and the moves to get the Council to make a decision on the issue of opening. From this, they deduce that [Name015] and [Name035] understood that Alcatel's commercial interests were at risk and that its communication possibilities with ICE were reduced due to the strained environment that had been unleashed. Starting on page 1123, the majority court analyzes the award of the 400,000 cell lines. Defense attorney Yamura Valenciano argues that the judges could not have seen preparatory acts by [Name001] to favor Alcatel in said procedure, but that such acts are never described. It is unknown whether [Name001] is reproached for having transferred confidential information to Alcatel, or for receiving late proposals, or for some illegitimate or unlawful act. According to the appellant, from a reading of the bidding procedure, it can be clearly derived that the procedure was transparent, with broad participation from the bidders, with contributions from all, including Siemens, Lucent, Ericsson, and even Alcatel. Siemens later decided not to participate due to the specific conditions of the bid, but there was an identical opportunity to contribute to the process. But the defense attorney argues that the judges saw fraud in all of this. The procedure was carried out following the procedures provided for by law. Only two bidders submitted proposals to this procedure: Consorcio Ericsson II and the joint offer between Alcatel CIT and the Banco Centroamericano de Integración Económica (BCIE). Ericsson's offer was disqualified for technical defects, while Alcatel-BCIE's offer met the requirements established in the solicitation document (cartel), so it was unanimously agreed to award the abbreviated competitive procedure (sentencia, page 1127, Volume XXXII). [Name052] declared at trial, as emphasized in the ruling, that all ICE technical bodies recommended awarding the contract to Alcatel, adding, moreover, that the award of the 400,000 lines resolved a large part of the demand for mobile lines, and that the negotiation was positive and justified the need to migrate to GSM technology to provide more and better services to users of new technologies, a point on which former executives [Name055] and [Name067] also agreed (page 1127, volume XXXII of the judgment). Ericsson's appeal to the Contraloría regarding its disqualification was dismissed, as can be seen in Evidence No. 640, which contains a certified copy of the entire Abbreviated Competitive Procedure No. 01-2001. The contract signed for the execution of the lease with purchase option for the 400,000 GSM technology lines in the 1800 MHz band exceeded 149 million dollars and was approved (refrendado) by the Contraloría General de la República (see official letter No. 2543 DI-AA-698, pages 341 to 3446, Volume IX (evidence 10), an approval (refrendo) issued at the beginning of March 2002 (page 1128 of the judgment, Volume XXXII). It is clear, then, that the two pillars upon which the judgment finds [Name001] guilty have no basis: on the one hand, the promise of a gift collapses because the migration was decided long before the date on which the accusation locates the promise of a gift to [Name001]; and it is easily verifiable, as this Chamber has done, that the decision for the abbreviated procedure was a recommendation from the Contraloría General de la República, which departs directly from the will of [Name052], who wanted to follow a different path through a direct purchase procedure, which would have directly benefited Alcatel by including it among the providers that, in a proportional amount, would have provided a specific quantity of GSM technology cell lines, without the uncertainty created by a bidding process in which there was no guarantee of winning. Grounds for Disconformity of [Name001] regarding Bribery. Conclusions: Regarding proven fact 28 and its comparison with proven fact number 35, the appellant indicates that there is a contradiction described as follows: “…since in the first, the court indicated that [Name015] and [Name035] determined it was necessary to resort to offering gifts so that ICE would initiate the bidding process, but in fact 35 it finds it proven that it was the oversight body that authorized the abbreviated competitive procedure, that is, the bid. So, how could it have been proven that Alcatel offered [Name001] money to get the competition opened, if the same judgment indicates that the competition was opened by the Contraloría…” The appellant refers to a series of studies found in the copy of the bidding file 1-2001: • Legal study of the offers, pages 1939 to 1907. Dated August 16, 2001. • Study and recommendation for award, abbreviated procedure 1-2001, from the UEN Servicios Móviles, pages 2037 to 2026. • Financial study, pages 2025 to 2006. • Technical study by the infrastructure and energy network planning group, dated August 10, 2001, pages 1954 to 1953. • Technical study by the generalities, radio, and services group, dated August 9, 2001, pages 1952-1950. • Technical study by the switching group, dated August 8, 2001, pages 1949 to 1940. It is emphasized that Ericsson's offer was declared non-viable for containing at least 32 incurable non-compliances with the solicitation document (cartel). It was then that the financial offer from Alcatel was opened, after which new studies were carried out, now with the offer price in hand, and it was likewise determined that it was advantageous for ICE to contract with Alcatel. The instrument through which the project was processed was the lease with purchase option. This was financed with the Banco Centroamericano de Integración Económica, which was the owner of the equipment to be installed, with Alcatel being in charge of the network's operation and maintenance and the training of ICE staff. Therefore, and the appellant insists here, it was the area in charge that made the well-founded award proposal for the bid, and the Board of Directors, on August 28, 2001, in session No. 5326, awarded Alcatel the contract for the 400,000 cell lines. The company Ericsson appealed this decision before the Contraloría on October 14, 2001, an appeal that was dismissed on December 19, 2011, with the contractual approval (refrendo) being granted on March 7, 2002. She concludes, therefore, that the Court reached an incorrect conclusion about [Name001]'s criminal participation, not only because it does not indicate what specific "necessary actions" he deployed to achieve the opening of the competition and the award of the contract to Alcatel, but also because those processes occurred, and there is proof of it, through lawful procedures fully endorsed by ICE's technical departments and by the Contraloría itself, with the latter being the entity that made the determination to carry out a bidding procedure like the one that ultimately took place. Regarding the conduct of improper bribery, the appellant argues the following: “…The acts accused, as improper bribery, against [Name001] run from number 133 to 187, of which only five attempt to imprecisely describe the imputed conduct. The rest of the paragraphs were dedicated by the prosecution to describing the destination of the money [Name001] received. This corresponds with the fact that a large part of the testimonial evidence brought to the debate was to determine whether [Name001] spent the money on cows, cars, or motorcycles. The court did the same…” According to the defense, their strategy was to indicate that less interest should be paid to the money, since its existence and payment could make [Name001]'s conduct fit into a different criminal act, but rather to the defects in the accusation, and the impossibility that the facts it contained could be sustained, and that they instead told a different story, suggesting that the money could have been delivered to [Name001] for reasons unrelated to the award of the 400,000 GSM cell lines. She insists that there was a forcing of the evidence to fit the terms of the accusation, without paying attention to the commitments of the principle of derivation, sound criticism, and due process. The appellant argues that it is considered proven that her client accepted a promise of a gift from the company ALCATEL in exchange for taking the necessary actions for said company to be awarded the abbreviated procedure 1-2001, within the framework of his functions as advisor to the presidency and coordinator of the interdisciplinary commission in charge of the project called "400K". This Chamber agrees with defense attorney Valenciano, in the sense that [Name001]'s participation in the award of the abbreviated procedure was neither important nor significant. Everything indicates that the award coincided with objective elements that contributed to supporting Alcatel's technical and economic proposal, a company that received the endorsement of ICE's technical bodies, besides being the only company that ended up being considered after Ericsson's disqualification due to the technical defects that affected its proposal. The abbreviated procedure did not have Alcatel's DNA, which means that the configuration of the requirements was not made taking into account what Alcatel could or wanted to offer, but rather that the preparation process was open and participatory, with the collaboration of all potential bidders, all with the objective of configuring the best proposal, taking into account the technological and financial needs of ICE, an institution that wanted to attend, in the best possible way, to the preponderant public interest in obtaining not only the telephone lines to meet existing and future demand, but also at a reasonable cost for ICE and its citizens. It is for this reason that the linking of [Name001] through the circumstantial evidence (indicios) pointed out by the Majority Court does not allow the aspects that make up the criminal offense of improper bribery to be considered established. This suggests that the finding of facts against him does not have the solidity and consistency required for a conviction, and this would justify annulling the ruling. 2. Regarding the crime of simulation fraud. In the third ground of the appeal filed by attorney Yamura Valenciano on behalf of [Name001], a violation of the rules of sound criticism is alleged, specifically the rules of logic and the principle of derivation, regarding the crime of simulation fraud. The appellant argues that the court found it proven that the defendant [Name001] fraudulently transferred two vehicles, license plates [Value037] and [Value038], to Sociedad Anónima Dominical Antigua, with the aim of removing them from the possible consequences of a criminal proceeding against him, alerted to this by news circulating nationwide. The accusation was based on the following facts: - The public emergence of news mentioning Servicios Notariales QC as one of the companies that deposited money on behalf of Alcatel, and [Name001]'s awareness of this. - The obtaining by [Name029] and [Name001] of the corporation Sociedad Anónima Dominical Antigua. - The appearance of [Name029] and [Name001] before notary [Name028] on September 30, 2004, for the sale of three vehicles to the company Dominical Antigua. Regarding the crime of Simulation Fraud, the appellant starts from the assertion that not all people are avid consumers of events and news of interest through newspapers and television news. However, the truth is that in the case of the events related to the famous "CAJA-FISCHEL" case, the dissemination of what happened there, of the flow of money that paid gifts and other gratuities to those who intervened in the matters investigated there, occupied the entire country for quite some time, with details being broadcast that were commented on by all citizens. It is not possible to follow the defense's reasoning in the sense that [Name001]'s actions were decontextualized from these news events and lacked any intent (dolo) to simulate contracts to hide patrimonial benefits he had obtained illegitimately. Thus, from facts 183 and 184, it is extracted that the Court finds it proven that it was in mid-2004 that news about corrupt dealings by officials of the Caja Costarricense del Seguro Social was disclosed in the press. As a result, both [Name001] and [Name029], both with the surname [Name068], learned of the investigations and the involvement of Servicios Notariales QC S.A. as part of the criminal scheme to pay gifts in the CAJA-FISCHEL case. With the aim of safeguarding these assets from the eventual investigations that would be initiated, [Name001] agreed with his sister to divert these assets through simulated legal acts. The defense questions this factual derivation because it was not demonstrated, or at least there is no argument demonstrating that [Name001] was a person inclined to read national newspapers or watch the country's television news programs. But the truth is that this circumstance is not central to preventing the judicial inference. It is not necessary to assume that only citizens who read newspapers and watch television news programs knew the details of the journalistic inquiries and later those of the Public Ministry on the CAJA-Fischel matter; the dimension of the case, the type of people involved, and the national significance of the matter must have been the subject of comment in the immediate and close circle to [Name001], who was also ready to acknowledge illegitimate acts to the press, to which attorney Yamura Valenciano believes [Name001] was not so keen. The idea underlying the court's criterion is not that all people learn about events through the news, but also through the comments these events provoked in the circles close to [Name001]. Therefore, it could be understood that the court elaborated an argument that included [Name001], not as a citizen who reads newspapers and watches television news, but as a person who was informed of what was happening, and who was part of events that kept the entire country waiting for the course of the investigations. The publications alluded to in evidence number 682, in effect, refer to details of the inquiries carried out and that involved the individuals supposedly involved in the illicit acts of that cause (p. 1548 of the judgment). There is a good possibility that [Name001] knew of this news, not necessarily through news programs and newspapers, but through the gossip and general commentary they were provoking, and that he knew could turn against him due to the payment channel for the sums he himself later accepted as illegitimate before a television news program of the Repretel company. It is very possible that this happened in this way, and caused the defendant to foresee the possibility that his criminality would be discovered, motivating him to fraudulently transfer two vehicles. For its part, Fact 185 establishes the following: "185) Approximately on September 20, 2004, the defendant's sister, [Name029], located [Name069], who was an acquaintance of hers and owned an accounting business, requesting that he get her three companies for her, making him believe it was for some family procedures. [Name069] told her that he would contact Attorney [Name071], who had companies for sale." Regarding this, attorney Valenciano argues: “…This fact, as found proven by the court, is not derived from the statement of [Name069], the only one who could have confirmed it. Starting on page 390 of the judgment, the testimony of [Name069], given on August 12, 2010, is recorded, who stated, in what is relevant: 'Like in 2004, I was called for an interview, you yourself were the one who asked me if I knew [Name029], if [Name029] had visited me, and I told you that she did visit me back in 2004, she visited me to say hello, also she needed the services of a law firm and I recommended Attorney [Name071] to her. 1 ...] I do not recall having informed the Prosecutor's Office that [Name029] asked me to indicate who sold companies.' Upon reading this testimony, it can be corroborated that the witness never said it was around September 20, 2004, that [Name029] visited him at his office, nor did he say she had asked him for three companies for a family procedure, but rather he indicated that [Name029] asked him to recommend a law office, which is why he recommended Attorney [Name071]. Therefore, it is evident that what the court found proven is not derived from the witness's statement. In the intellectual reasoning, the court does not point to any other means of proof from which it would have obtained the necessary confirmation of this point of the accusation, which was essential to have considered it proven…" However, this Chamber does derive from this testimony that [Name029] was indeed searching for a law firm and legal advice for procedures, which, even if not stated to be of a family nature, were indeed of interest to her. Furthermore, in effect, [Name029] visited the office of attorney [Name071], who had corporations available that were later involved in the legal act or transaction under investigation. Regarding facts 186 and 187, the ruling establishes the following: "186) On September 30 of that year, Attorney [Name071] delivered for sale to [Name069] three companies named Terra Toscana S.A., legal ID 3-101-376929, Dominical Antigua S.A., legal ID 3-101-381503, and Camino Medieval S.A., legal ID 3-101-381113, each with book number one of the Shareholder Registry, General Assembly Minutes, Board of Directors Minutes, Journal, Ledger and Inventories and Balance Sheets, original articles of incorporation, legal ID card, and duly endorsed shares. 187) That same day, [Name029], in common agreement with the co-defendant [Name001], had the documents of the cited companies sent to [Name069]'s office, and once in their possession, they immediately appeared before Attorney [Name028] and in the act simulated, through deed number [Value020], the sales contract for three vehicles, two of which were in the name of the defendant [Name001]: license plate [Value037], Volkswagen brand, model 1999, for an amount of four million colones (04,000,000), and license plate [Value038], Toyota brand, model 2002, for an amount of five million colones (05,000,000); and the other in the name of the company MCS Moriah, license plate [Value033], Suzuki brand, model 2003, for the amount of four million colones (04,000,000), all documentedly transferred to [Name070] in her capacity as representative of the company Dominical Antigua S.A." Regarding these facts, attorney Valenciano disputes the possibility of deriving that, in effect, this happened as described in the ruling. However, [Name071] himself confirms that this sale of the corporations did indeed take place, and that a receipt was made that [Name069] had signed. Regarding this signature, the appellant says there is an issue the court did not elucidate, as to whether it was indeed issued by [Name069], since he did not recognize his signature stamped on the document on page 89, coming from evidence number 404. Nevertheless, the mentioned discrepancy, which so worries the defense attorney, can be assessed following the rules of sound criticism, and consider that although it is not confirmed with a handwriting analysis test, there is at least an indicator (indicio) that said document existed and that confirms, at least in principle, that the companies were delivered to [Name069], and with this [Name071]'s statement about the delivery of the companies would be confirmed, the companies that would later feature in the dubious transfers under investigation. [Name069]'s testimony, as the trial court itself recognizes, was fearful and not very fluid, but its shortcomings were filled with the testimony of [Name071] and [Name070]. [Name071]'s professional firm, like other legal offices, prepares and registers corporations that are kept available for eventual clients who might need them, and they are sold with the duly legalized books and with the shares endorsed in blank. The alleged "lack of memory" of witness [Name069], who said he did not recognize his signature on the receipt on page 89 of evidence 404, was shown to the other witnesses, who recognize the document with the office's logo, the one that was customarily used, and which serves as the acknowledgment of receipt and the invoice to be charged, and they recognize the witness's [signature], as it is the same one accustomed in other office documents. In fact, [Name071] recalled that days after the sale of the companies, he spoke with [Name069] by phone, who indicated that a client would come by the office to get [Name070]'s signature to transfer a vehicle or properties, and that there was no problem with [Name070] signing (page 1550 of the judgment). She questions, equally, calling them "mere presumptions," the derivations made by the Trial Court in fact number 187, where it is found proven that [Name029] and [Name001] had the company documents brought to be taken to the notary office of attorney [Name028], to proceed with the sales recorded in deed number [Value020] of said professional's Protocol. Attorney Valenciano insists there is no evidence demonstrating that [Name029] and [Name001] acquired the companies Terra Toscana, Camino Medieval, or Dominical Antigua. For the defense attorney, only the testimony of attorney [Name028] could have elucidated whether the defendants had in their possession the books of the aforementioned companies. She complains about the lack of investigation by the Public Ministry regarding whether the vehicles with license plates [Value037], [Value039], and [Value038] were possessed de facto by [Name001], which could have determined whether the transfer was real or simulated. Nevertheless, there are elements assessed by the trial court that could provide an important indicator (indicio) of said de facto possession. Note that [Name070], according to her testimony, 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 has never owned a vehicle. [Name070] was also the secretary of attorney [Name071]'s office, following the firm's custom of populating the boards of directors of the companies for sale with members of the firm, in this case with [Name070], his assistant (page 1546 of the judgment). It is true that she participates in the legal act as the representative of the legal entity "Dominical Antigua," but it is logical that if the company acquires those vehicles, it would be [Name070] who oversees controlling, maintaining, and even driving the mentioned automobiles. It is true that the acquisition of these vehicles via the corporation is an act permitted by the legal system, in principle, however, it is strange that the representative of the legal entity would not have to dispose of those assets, at most to attend to the maintenance needs of the mentioned automobiles, or to move them to a place where they were properly parked. In this conclusion, there is no confusion of legal terms or a requirement incompatible with the legal nature of the position of representative of the corporation; it is merely a plausible reflection on the participation of [Name070] in these transfers and the legal reason and sense of the automobile acquisition. It is true that [Name070]'s testimony is not proof that the transfer was rigged and illicit; this derives from the comprehensive assessment of the available circumstantial evidence (indicios), which the trial court divided into two moments for its study. On the one hand, the acquisition of the corporations, and then, the legal act of transfer, which demonstrates that the entire legal scheme merely hides a simulated contract whose objective was not to transfer anything but rather to conceal assets acquired with money that [Name001] himself described as illegitimate. Furthermore, the attitude of the defendant himself, in acquiring the company and hurrying to make the transfers, reveals, as the Court well underlines, his objective of performing a fictitious transfer to protect those assets from the action of justice. It is for this reason that the logical fallacy the defense attorney claims did not occur. According to her, a cum hoc ergo propter hoc circumstance is produced, according to which there would be a non-existent cause-effect condition. However, in this case, there is an important circumstantial relationship (relación indiciaria) that allows deriving that, faced with the events in the Caja-Fischel case, it led [Name001] and his sister to seek 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 proof, but there is circumstantial evidence (indiciaria) of the connection between the two events, and there is sufficient factual basis to conclude as the trial court does regarding the elements that make up the crime of Simulation Fraud. It is for the foregoing reasons that the ground raised by the defense attorney against the judgment cannot be upheld. Regarding the issue of the determination of the value of the transferred assets constituting the Simulation Fraud and the reasoning for the penalty for the mentioned crime. The fourth ground raised by attorney Valenciano on behalf of the defendant [Name001] has to do with the court's determination of a value exceeding ten base salaries for the transferred assets, which constitute the object of the simulated purchase-sale contract that has been the subject of the accusation.

The issue relates to fact number 187: "That same day, [Name029], by common agreement with the co-defendant [Name001], ordered the documents of the aforementioned companies to be brought to the office of [Name069], and once in their possession, they immediately appeared before Attorney [Name028] and there, through deed number [Value020], simulated the contract of sale of three vehicles, two of which were registered in the name of the accused [Name001], license plate [Value037], make Volkswagen model 1999 for an amount of four million colones (4,000,000) and license plate [Value038], make Toyota model 2002 for an amount of five million colones (5,000,000); and the other registered in the name of the company MCS Moriah, license plate [Value033], make Suzuki model 2003 for the amount of four million colones (4,000,000), all transferred on paper to Mrs. [Name070] in her capacity as representative of the company Dominical Antigua S.A." The appellant indicates the following in this regard: "…The Penal Code establishes, in Article 218, that the penalty indicated in Article 216, according to the amount, shall be imposed on whoever, to the detriment of another, to obtain an undue benefit, makes a simulated contract. Article 216 establishes that the penalty to be imposed shall be from two months to three years, if the amount defrauded does not exceed ten times the base salary, and from six months to ten years if it exceeds said amount. Therefore, from the penalty imposed for the crime of simulation fraud, ten years of imprisonment, it is assumed that the court considered that the conduct of [Name001] fits the second subsection of Article 216, that is, that the amount defrauded exceeds ten times the base salary, even though the judgment did not analyze, explain, or ground it in the legal reasoning. The judgment held as proven that the defendant [Name001] simulated a sales contract for two vehicles to the company Dominical Antigua S.A., license plate [Value037] make Volkswagen and license plate [Value038], make Toyota. The deed stated that the value of the vehicles was four million and five million colones respectively." The appellant is correct in her arguments. The Court does not explain from where it derived the value of the transferred vehicles: on the one hand, whether it takes it from the value indicated in the deed or whether it used some other parameter to estimate if the amount defrauded exceeds the amount of ten base salaries. There is no expert opinion in this regard or a prudential determination that could have served as a basis for a discussion on this issue, which is of great importance for setting the penalty amounts to which the accused could be liable if found guilty of the offense of Simulation Fraud. Ms. Valenciano, the defense counsel, must also be agreed with on the issue of the determination of the penalty for the offense of Simulation Fraud for the accused [Name001], to which she dedicates the sixth ground of her appeal. The Court did not give sufficient reasons to be able to consider the amount of ten years of imprisonment imposed on the defendant as proportional, suitable, and necessary, the highest end of the penalty provided for this crime. After indicating matters relating to the capacity for culpability and the awareness of unlawfulness, as well as that the facts are typical, unlawful, and culpable, and recapitulating the proven facts, the court proceeds, in a scant paragraph, to attempt the reasoning of the penalty (see pages 1553 and 1554 of the judgment). The peculiarity to which the defense is interested in drawing attention is that this paragraph is exactly the same one that the court used for the reasoning of the penalty for the defendants [Name001] and [Name004] in the case of aggravated corruption, which reveals the court's total lack of interest in setting out the reasoning that led it to impose, it is insisted, the maximum end of the penalty provided for simulation fraud…" She transcribes the passages of the judgment where this weighing is done, and analyzes that the only thing changed in the weighing for both defendants was the name. As already explained, the court prefers reasoning of negative special prevention, but without giving any true reason that, in accordance with the principles of the Rule of Law, allows the judgment on the penalty established for the committed wrongdoing to be considered supported. There is no way for the defense of the accused, and for this Chamber, to control the true reasons for the imposition of this penalty, and what was the basis for an individualization of the quantum of the custodial sanction at its highest end. It is appropriate, then, to annul the judgment regarding the Simulation Fraud for which [Name001] was convicted, only, regarding the determination of the end from which the penalty would be fixed in the relationship existing between Article 218 and 216 of the Penal Code regarding the value of the amount defrauded, as well as the penalty imposed. The referral of the case is ordered so that these two ends may be discussed: the amount of the defrauded sum shall be fixed according to procedural rules and, according to this amount, the minimum and maximum end of the penalty to be imposed shall be established, and a reasoning of the penalty shall be made in accordance with constitutional requirements and Article 71 of the Penal Code. The judgment on the Simulation Fraud remains unaltered in all other aspects. 3. Regarding the violation of due process due to the introduction of illegitimate evidence not admitted in trial. Attorney Yamura Valenciano explains that the Court never established, in accordance with the rules for incorporating evidence into the process, what the date of the REPRETEL video was, in which [Name001] had supposedly admitted to having received money from ALCATEL. She recounts the norms of the procedural legislation that regulate the incorporation of evidence in the Costa Rican criminal process, and establishes that, in violation of what is stipulated therein, the Trial Court subtly establishes a date and time for the video that was never legally defined. In fact, the defense did not exercise control over this aspect until this appellate instance. According to what the defense establishes, this action by the Court places her in a state of defenselessness (indefensión), since she did not have knowledge of the evidence, and could not exercise control over it nor could she challenge it. She transcribes the section of the judgment where the defect is committed: "However, as already mentioned, a video dated September 24, 2004, from Repretel has been viewed, in which the accused [Name001] voluntarily accepts, before the journalist interviewing him, having received money from the Alcatel company; between September 28 and 30, 2004, news about this event is published in national newspapers." (page 1551). Regarding this, the challenger adds: "…According to the text of the judgment just pointed out, there was a video from the Repretel company that was incorporated into the trial. There is no discussion on this point; indeed, it was offered by the Public Prosecutor's Office, accepted by the court, and duly incorporated. The defense's complaint rests on the fact that no evidence was ever incorporated into the trial to allow defining the date on which the video was made, which was even alleged by the defense in the closing arguments phase since, as part of the defense strategy, the omission of that fact by the prosecutors was vital, as the video could not be located temporally and this limited its evidentiary value. It is inadmissible, in a Rule of Law State, for a court to wait until the closing arguments of the parties are finished and, according to the weaknesses of the investigation pointed out, especially by the technical defense, substitute the work of the accuser and search for data that were not duly incorporated into the process and evaluate that data to the detriment of the defendant…" There is a subtle reference to the fact, but a clear omission regarding the reference to the licit evidentiary element from which said information derives, which causes a reference based on a non-existent evidentiary element, which the Court well knows is the available situation in the case. The appellant finds other references in the ruling to the video where indication is made to other dates and other times of its supposed broadcast: "…See how, even, in other parts of the judgment, specifically on page 1457, the court refers to the same video, but says it is a Repretel video from 3:59 a.m. on January 29, 2004, casting doubt on what the date is, January 29, 2004, or September 24, 2004, facts over which the defense exercised no control during the trial but only at the cassation instance. The incorporation into the judgment of the supposed date of the Repretel video leaves the defendant in a state of defenselessness, because as this was not established in the trial as evidence offered and incorporated, it left him defenseless; the technical and material defense could not control the truthfulness or not of the fact, could not contradict the evidence in any way nor the conclusions that, in the judgment, the court draws from the fact that was gathered after the closure of the trial. It is not a simple date. This incorporation has a transcendental consequence in the court's decision, which is, giving it a temporal reference point that was never provided by the prosecution, and that the court uses to 'prove' that at the time the defendant made the sale of the vehicles to the company Dominical Antigua, September 30, 2004, he already knew that he could be linked to the acts of corruption addressed in the judgment…" "To determine what the defendant's intention was at the time of mencionados and thus disperse his assets, simulandi, in the sense that he was subjected to a criminal process and given the time in which these legal acts occur and the need he had (…) However, as already mentioned, a video dated September 24, 2004, from Repretel has been viewed, in which the accused [Name001] voluntarily accepts, before the journalist interviewing him, having received money from the Alcatel company; between September 28 and 30, news about this event is published in national newspapers. In said information, a series of data revealing the magnitude of the events is mentioned. The Court estimates that it is precisely these circumstances that lead the defendant to make the transfer of the vehicles from his property to a corporation (sociedad anónima). From that moment, coupled with the voluntary statements he had given days before, [Name001] strengthens his knowledge that he will probably be subjected to criminal proceedings and that his assets could be pursued by the authorities, so it was necessary to place them in safe custody." (page 1551). In this regard, the appellant reaffirms her criticism of the judgment, not only for making a statement not based on reasoning with the use of duly incorporated evidence, but also because the court derives the knowledge of the situation from the date of a video whose exact date was unknown until the judgment was notified. In support of her claim, she cites a note by Magistrate Rosario Fernández Vindas to Voto No. 1329-2006, where she understood that a court could not say it had acted according to sound judgment (sana crítica) and experience when an evaluation made of an evidentiary element is not extracted from the evidence received at trial but from the assessment generated by the Court itself without going through the analysis of the adversarial process, leaving that assessment as part of the judge's private knowledge. The note by Magistrate Fernández is relevant, according to the appellant, because in this case there are indeed consequences, since if the incorporated fact is suppressed, there is no way to demonstrate that by September 30, 2004, the defendant had news that there was an open investigation where Servicios Notariales QC S.A. was mentioned, such that he would suspect that his name would be involved in a scandal and that as a result he decided to fraudulently transfer his vehicles. She requests that the ground be declared with merit, and that the judgment be annulled regarding the conviction for the crime of Simulation Fraud and, for procedural economy, that the defendant be acquitted because there are no evidentiary means to demonstrate the accused conduct. The appellant is correct; however, the nullity of the fact of the date of the Repretel video does not have the virtue of leaving the determination of the fact regarding simulation fraud without evidence. The consideration made by the defense counsel for [Name001] on the issue of the date and time of the Repretel company video, where the defendant supposedly acknowledged having received money from the Alcatel company, was not established in a way that could be known and questioned by the material and technical defense of the defendant. In fact, there is no determination in the judgment that allows knowing how the date and time of said video are fixed with the certainty that the majority vote grants it. The defense counsel manages to determine, additionally, that in various sections of the judgment two different dates are fixed; in one part of the judgment, specifically on page 1457, the court refers to the same video, but says it is a Repretel video from 3:59 a.m. on January 29, 2004, casting doubt on what the date is, January 29, 2004, or September 24, 2004, facts over which the defense exercised no control during the trial but only at the cassation instance. The information about the date and time is, indeed, of great importance for the defense strategy of the accused, since it was in that interview that he accepted having received money illegitimately from Alcatel, and that he accepted the consequences thereof. In the same way, and based on the video, he is linked to an entire criminal plan to remove movable property (bienes muebles) from his estate and place them in safe custody from the justice system. The latter is an important part of the derivation the court made in the case of the crime of Simulation Fraud attributed to him, as it affirms that this is part of the elements that lead him to decide to simulate a sales contract to a corporation. The defense counsel offered, at the hearing of the appeals filed in the present case, a note dated October 30, 2012, signed by [Name072], Chief of Information of Noticias Repretel, visible on page 174382 of Volume XLI, where he indicates that it is not possible to certify on what date the journalist [Name073] conducted the interview with Mr. [Name001]; what could be certified is that the document entered their archive on October 7, 2004. He explains that the television station stored these types of videos in a television format, which is now obsolete as digital format is used today. Thus, not even with the information from the television company itself could the hourly and date reference that the defense of the accused [Name001] attacks today be determined with the certainty the court gives. In the same way, it must be analyzed whether this is private knowledge of the judge or an inference made from other elements; there must be sufficient reasoning so that it can be analyzed at this appellate instance and eventually in cassation, and to be able to derive what elements allowed the judges to consider that the video's date is a specific one. However, and even though this would make the fixing of the date and time of the video illicit, not so the document itself, because this was offered and introduced into the process in a licit manner, and can be evaluated by the trial court and by this appellate instance. In the same way, there are other elements of evidence, which have been weighed in the previous section, that allow it to be held as true and valid that the defendant attempted to remove certain movable property from his estate from the action of justice through simulated acts or sales contracts. The evidence, of course, was questioned by the defense, but this Chamber has already considered that it does allow concluding as the trial court does, together with the fact, which must be underlined, that it was not necessarily the Repretel video itself or the news from television news programs or newspapers that led [Name001] to make the determination to remove these assets from his estate, because it is clear that he could well have learned of it from general comments occurring in his close or trusted circle or from the same work colleagues who commented on said circumstances that were being interwoven with the investigations carried out around the case called Caja-Fischel, which had some elements in common with the matter in which [Name001] knew he was involved. It is for the foregoing, that even hypothetically excluding the reference to the date and time of the video given by the Trial Court, other evidentiary elements subsist, correctly introduced and evaluated in trial, that support the indications allowing the derivation of the criminal planning of [Name001], in his attempt to remove assets from his estate from the eventual inquiries that would not take long to be brought against him.

VIII.- THE APPEAL OF [Name004] FILED BY ATTORNEY YAMURA VALENCIANO, PUBLIC DEFENDER, IS RESOLVED.- 1. Regarding the crime of improper bribery (cohecho impropio): Of the issues proposed by attorney Yamura Valenciano Jiménez, on behalf of Mr. [Name004], she has expressed her disagreement with the judgment through a conversion appeal (recurso de apelación por conversión) filed in Volume XXXIX. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the defendant for the crime of improper bribery in the modality of aggravated corruption. First Section.- Defects that by themselves imply the nullity of all that was resolved. A. Prescription of the cause. In the first ground by attorney Valenciano, a violation of due process is alleged because the cause has prescribed. She indicates that she raised the exception of prescription in various instances, and it was rejected. The reason given by the Trial Court to dismiss the prescription was based on the declaration of complex processing (tramitación compleja) of the cause that occurred on March 3, 2006, with the judges considering that by virtue of this, the reduction of the prescription term could not apply, by virtue of the provisions of the third paragraph of Article 376 of the procedural legislation. As stated by the defense, procedural acts are governed by the law in force at the time they occur and take effect according to this law. According to attorney Valenciano, Article 376 CPP does not give the possibility for the declaration of complex processing to make its effects retroactive, nor to interrupt the prescription. She is correct in her claim. In the present matter, [Name004] has been accused of the crime of improper bribery in the modality of aggravated corruption, which, in accordance with the provisions of Articles 340 and 342 subsection 1, has a maximum penalty of five years. Therefore, five years is the full term of prescription that had to be counted, until one of the acts that interrupt the prescription and reduce the term by half occurred. The first act interrupting the prescription occurred on October 10, 2004, the date on which the defendant appeared to render his statement on the facts, so from that day, the term to compute the prescription went from being five years to two and a half years, or what is equal, thirty months (see page 146 Volume I). Said thirty months were completed in April 2007, without any of the causes for interruption provided by Article 33 of the Code of Criminal Procedure (Código Procesal Penal) or suspension provided by Article 34 occurring in the meantime. Therefore, by the time the preliminary hearing was scheduled for the first time, that is, September 10, 2007, the criminal action against [Name004] for the crime of improper bribery had already prescribed, and with it, the State's power to prosecute him criminally. The reasoning supporting this conclusion has already been expressed upon resolving the appeal of Dr. [Name012], to which reference is made to avoid unnecessary reiterations. It is appropriate, then, to declare the cause followed against [Name004] prescribed and to absolve him of the crime of improper bribery in the modality of aggravated corruption that he had been attributed. B. Defects regarding the determination of the fact and the evaluation of the evidence to determine the indications that led to the conviction for the crime of improper bribery. Even though the cause against [Name004] has been declared prescribed, and any subsequent evaluation on the elements integrating the jurisdictional criterion of conviction may lack interest, it is now appropriate to analyze other aspects that could cause the nullity of the ruling by virtue of flaws in the argumentative process and in the generation of the inferences of the majority vote of the trial court. Thus, it is of interest to analyze the third ground of the appeal formulated on behalf of [Name004], where attorney Yamura Valenciano raises affronts to the rules of logic, to the principle of derivation (principio de derivación) in the reasoning of the ruling insofar as it attributes the crime of improper bribery to the defendant. She begins with a transcription of facts 116 and 117 of the ruling: "116) That during his tenure as a director of the I.C.E., the defendant [Name004] maintained fluid communication of extreme trust, derived from his position, with the defendant [Name015] and with the indictee [Name035]. 117) Without a precise date, but in the period between the end of 2000 and the beginning of 2001, the defendants [Name015] and [Name035] asked the defendant [Name004] to take the necessary actions within the scope of his functions as a Director of the I.C.E., in support of Alcatel's interests, primarily, to promote the migration of TDMA technology to GSM technology, promote purchases through tenders, and prevent them from being aborted. Subsequently, once the abbreviated contracting process (proceso de contratación abreviado) for the 400,000 was authorized, they asked him to vote in favor of the award of said tender to the Alcatel company, in exchange for all of the above, they promised him the delivery of a gift (dádiva), which would be paid in money. Said promise was accepted by the defendant [Name004]…". The arguments that the court uses to establish said promise as true are the following: "Consequently, it is clear that the described scenario did not favor at all the commercial interests of Mr. [Name015] and [Name035], representatives of the firm Alcatel CIT, a circumstance that motivates them to promise and then deliver a gift to [Name004] who, as a member of the Board of Directors of ICE, had the power to promote the change from TDMA technology to GSM, to vote in favor of a public tender thus allowing the participation of Alcatel Costa Rica, and to vote affirmatively for the award of contract 'abbreviated 1-2002 for the leasing of the 400,000 GSM cellular lines' in favor of Alcatel. As indeed happened. A second evidentiary element to consider that this 'promise of a gift' indeed occurred is constituted by the declaration of the collaborating defendant [Name026], to whom the Court by majority has given full credibility, without having found so far any reason to say that he has come to lie to the trial, as has already been indicated in previous considerations, even if we could find some differences regarding the statements incorporated by reading into the trial, the truth is that in its relevant points, he has always maintained the same version. This is how he points out that he indeed met with [Name015] and [Name035]. In said meeting, according to his own words, the aforementioned offered him a reward if he helped them in three directions: 1) help materialize the migration to open technologies or GSM; 2) materialize the project or initiative to purchase material and equipment for that expansion through public competition or tender; and 3) that he vote affirmatively on the technical criteria or the criteria of the technical instances as a director of ICE that he was. An important fact that we must not overlook is that, according to the testimony of [Name026], the 'offerors' at the beginning of that meeting stated that they had courtesies or rewards for the people who helped them. [...] A third element to consider for the purpose of holding the promise of a gift as proven is constituted by the so-called 'action route proposal' prepared by [Name058], a witness who, although he abstained from declaring in trial, this does not prevent using that document since it was incorporated by reading into the trial. Said proposal, which describes a basic action scheme to face Alcatel's problems with ICE, which has already been specified, covers, for example, the business sector, the Catholic church, minority parties, but also the political sector. The document being very clear in warning that the support of at least three deputies, a pre-candidate for the Presidency of the Republic, members of the political directorate of the Partido Liberación Nacional, and private advisory services even from a former president would be necessary (evidence No. 686). This document, without any doubt, evidences the urgency and need that Alcatel Costa Rica, in the person of the co-defendant [Name015], had to exhaust all social and especially political instances so that its offer regarding GSM technology would be the one accepted by ICE. Let us remember the disagreement of said company with the administrative policies regarding contracting that ICE had. The above only comes to confirm what the prosecutorial accusation has already described, regarding that the co-defendant [Name015] and [Name035] indeed contacted not only [Name026], but also [Name004] and [Name001], in order to promise them a gift in exchange for, in light of their functions, helping the Alcatel company come out successfully...". It is thus that the defense of [Name004] maintains that three are the fundamental elements to sustain this conclusion of the judgment regarding the offer of a gift that the former director received. On the one hand, the declaration of [Name026], the roadmap (hoja de ruta) drawn up by [Name058], as well as the supposed adverse scenario that arose for Alcatel's interests. This Chamber considers that attorney Valenciano is correct in her assessment of the argumentative elements of the ruling, and in her criticism of them. It has already been analyzed, in great detail, upon resolving the appeal in favor of [Name001], that this Chamber does not share the view of the majority vote of the trial court in the sense that the "roadmap" drawn up by Mr. [Name058], as a political advisor to Alcatel, implies the design of a criminal plan to corrupt public officials. It is, rather, the design of a strategic plan to build a consensus regarding the need for decision-making on the topic of technological opening in the cellular field, which involved reaching various sectors and opinion-forming persons, with the objective of generating knowledge on the technical topic and the technological advantages that said opening could bring. It is possible that Alcatel felt lagging behind regarding its pretensions to participate in the Costa Rican cellular market, and it is also possible that at some point it felt excluded from intervening in direct purchases that were already made from the suppliers - until then dominant at ICE: Lucent and Ericsson. However, the scenario of lagging behind did not necessarily mean that Alcatel decided to approach [Name004] to make him a promise of a gift, specifically, to collaborate with the business objectives of the multinational. In the same way, deriving certainties from the statements of [Name026] about the intervention of [Name004] in any corrupting criminal planning is, as already studied on the occasion of the resolution of the appeal of Mr. [Name012], impossible, for the reasons already expressed when analyzing the issue of [Name026] and his role in this process.

The defender correctly points to the circumstance that the same reason for imputation that might apply to [Nombre026] cannot be attributed to another ICE executive such as [Nombre004]. [Nombre026] himself stated he did not know whether other ICE executives received the same gift proposal that he received. This argumentative proposition of the Trial Court cannot be supported by this Chamber and collapses under its own weight. The Trial Court attempted to involve [Nombre004] in the decision to award the 400,000 cellular lines to Alcatel, and traces his participation in the sessions of the Board of Directors where the issue was discussed, citing Extraordinary Session No. 5249 of December 5, 2000 (folio 1395 of the judgment, Volume XXXII). However, the judges’ own citation of this Session does not omit the reference to the fact that there was a draft Comprehensive Telecommunications Plan that needed to be promoted and that authorization had to be requested from the Comptroller General’s Office to expand the exchanges and provide solutions with a GSM system. The same citation noted that the Mobile Telephony Business Unit (UEN) justified the “technical feasibility” to implement 400,000 cellular lines based on the existing fixed exchanges. As seen during the review of the appeal filed on behalf of [Nombre001], said process leading up to the decision to propose the 400,000 lines through an abbreviated procedure was not without problems, difficulties, and requests for information and technical studies. The very decision to opt for an abbreviated procedure was not made by ICE but by the Comptroller General of the Republic. ICE preferred to continue with the direct purchases topic. The abbreviated procedure itself, and the core of the request for bids, did not specifically favor Alcatel. The creation of said tender arose from the joint work of ICE authorities and the suppliers, and was an intensive process seeking the best offer that would allow ICE to meet existing demand and incorporate services of interest to Costa Rican users. All aspects related to these arguments have already been discussed and analyzed previously, but they are repeated here to point out the weakness of the inferences made by the majority Court, as well as the alleged gift offer that [Nombre004] might have received to pave the way for the Alcatel company in an abbreviated procedure that, at the date the alleged gift was given, did not even exist as a real possibility. According to the Court, there was a relationship of trust and friendship between [Nombre004], [Nombre015], and [Nombre035] (folio 1401, Volume XXXII); this closeness explained why it is assumed that between the end of 2000 and the beginning of 2001, they promised him a gift in exchange for promoting the migration from TDMA technology to the GSM technology provided by Alcatel. Among the favors and closeness, the judgment mentions notes addressed to Alcatel Chile to attend to [Nombre004] when he visited that country, or the hotel reservations in Spain and France in March 1996 (folio 1402 of the judgment). The attentions to the defendant occurred on other occasions, even paying for a trip to Spain in October 1999. The judgment weaves this relationship of [Nombre004] with [Nombre015] and with Sapzisian and then connects it to plans favoring the multinational in its venture in Costa Rica. That is why, in the judgment, the Court links the payment of sums of money to [Nombre004] with the fulfillment of the tasks entrusted to him in relation to the 400,000 cellular lines. However, and as already set forth in the case of [Nombre001], the plan to offer gifts at a time when there was still no clarity on the path to follow and when a path was ultimately chosen that was not entirely favorable to Alcatel, such as the abbreviated procedure, which did not assure it any certainty of emerging victorious from the bidding process, leaves much of this argumentative line of the Court without support. It is true that Alcatel ultimately emerged victorious, but as could be observed from the prior decisional path, this occurred precisely because it met the requirements of the bid and because the Ericsson company was disqualified. The indications constructed by the judgment in this regard are, therefore, meager and amphibological, as defender Valenciano charged. This Chamber has already insisted on the need for the weighing of the indications to result in a conclusion based on their overall analysis. It is from there that the rules of logic and experience require that the indications rationally lead to the conclusion sought to be sustained. The three elements the decision on the merits attempts to use lack the solidity the Trial Court seeks to give them, and its conclusions cannot be endorsed to sustain a conviction. It is for this reason that the ground raised by the defense of [Nombre004] must be declared with merit, and for these reasons, the judgment must also be annulled as there is no support for the determination of the fact attributed to the accused [Nombre004].

IX.- THE APPEAL FILED BY DEFENDERS NAZIRA MERAYO ARIAS AND WILSON FLORES FALLAS ON BEHALF OF THE ACCUSED [Nombre007] IS RESOLVED.- 1. Regarding the crime of Illicit Enrichment: Of the issues proposed by attorneys Nazira Merayo Arias and Wilson Flores Fallas, representing Mr. [Nombre007], their disagreement with the judgment has been expressed through various writings, the first of which is a “cassation” appeal filed by defender Flores on April 27, 2011 (cf. Volume XXXVI, starting at folio 171102), and subsequently in an appeal by conversion. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the defendant for the crime of Illicit Enrichment. First Section.- Defects that by themselves imply the nullity of everything resolved. A. Prescription of the cause. In the first ground on procedural form of the appeal by attorney Wilson Flores and in the first on procedural form by attorney Nazira Merayo, a violation of due process is alleged because the cause has prescribed. They indicate that the exception of prescription was raised in various instances and was rejected. The reason given by the Trial Court to dismiss the prescription was based on the declaration of complex processing of the cause that occurred on March 3, 2006, the judges considering that by virtue of this, the reduction of the prescription period could not apply, pursuant to the third paragraph of Article 376 of the procedural legislation. As the defense states, procedural acts are governed by the law in force at the time they occur and take effect according to this law. Article 376 of the CPP would not be giving the declaration of complex processing any possibility to make its effects retroactive nor to interrupt the prescription. They are correct in their claim. The appellants mention that the classification given to the acts against [Nombre007] was reduced to the crime of illicit enrichment, which at the date of the acts stated (December 10, 2001, Article 346, subsection 3): “A public official who, without incurring a more severely punished crime, shall be punished with imprisonment from six months to two years for: 3) Admitting gifts that were presented or offered to them in consideration of their office, while remaining in the exercise of the position.” Hence, co-defendant [Nombre007] is attributed with 3 crimes of illicit enrichment, in material concurrence, as provided in Article 346, subsection 3 of the Penal Code, punishable by a prison sentence of 6 months to 2 years, whose prescription period, according to Article 31 of the Code of Criminal Procedure, would be 3 years, so reduced by half, it would become 18 months from one of the scenarios interrupting the prescription. Specifically, Article 33 of the procedural law establishes that prescription periods shall be reduced by half in several scenarios; the one relevant to the case is when the inquiry statement has been rendered. In the case of Mr. [Nombre007], this took place at 2:05 PM, on March 7, 2005 (Folio 1984). Therefore, a prescription period of 18 months must be calculated from this moment until the Preliminary Hearing is held. The scheduling for the Preliminary Hearing was set on September 10, 2007, so by the time said act was to take place, the cause would have already prescribed since September 7, 2006. However, the Trial Court considers that the declaration of complex processing declared on March 3, 2006, produces a retroactive effect, affecting the declaration as a defendant that had begun with ordinary processing prescription rules. This Chamber has already ruled against the retroactive effects given to the declaration of complex processing of the cause. The reasoning supporting this conclusion has already been expressed when resolving Dr. [Nombre012]'s appeal, to which reference is made to avoid unnecessary reiterations. It is therefore appropriate to declare the cause followed against [Nombre007] prescribed and absolve him of the crime of Illicit Enrichment that was being attributed to him. B. Spurious Evidence. In the sixth ground on procedural form of the appeal by attorney Wilson Flores and also in the sixth ground on procedural form of the appeal by attorney Nazira Merayo, on behalf of the accused [Nombre007], the incorporation of evidence obtained with a violation of fundamental rights is charged. The appellants state that the judgment would have incurred a violation of due process, by infringing 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, 29 of the Law on the Registry, Seizure and Examination of Private Documents and Intervention of Communications, an aspect sanctioned with nullity. With respect to documentary evidence No. 588, which is a certified copy of the Judicial Assistance from the Republic of Panama, sent via notes PGR-030-2004, dated September 10, 2004, and No. 316-DN-TALM-04 of September 6, 2004, which consists of 420 folios, the appellants state that the consent of the legal representative of Marchwood Holding, the account holder Mr. [Nombre032], is not sufficient, because the proceeding was carried out, at the time, without a judge’s order as required by the Costa Rican legal system. They argue regarding this, based on some considerations on the fundamental right to privacy derived from Article 24 of the Constitution, which is in turn a guarantee derived 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). Intervention in the private sphere of citizens may only be agreed upon by law, and under the conditions it sets, and its application and interpretation will always be subject to jurisdictional guarantee. By virtue of this, a consent such as that expressed by [Nombre032] would not have the capacity to enable waiving the guarantees derived from that constitutional right to privacy. The action consented to by [Nombre032], moreover, affects the fundamental rights of other actors, and through it, an item of evidence is obtained, and information is obtained linking Servicios Notariales Q. C. S. A. with Cuscatlán International Bank and of international transfers from Servicios Notariales Q. C. S. A. to defendants in this cause and from Alcatel Cit to Servicios Notariales Q. C. S. A., so the evidence derived from it, including evidence against [Nombre007], would also be illicit, and it is requested to be declared as such. They are correct in their claim. The arguments for analyzing this legal problem have already been explained earlier, when resolving the appeal filed by Dr. [Nombre012] (A-1). Thus, it is appropriate to apply to the defendant [Nombre007] the same effects that this determination had for the defendant [Nombre012]; the nullity of documentary evidence No. 588 and all probative elements dependent on it is declared; the nullity of the criminal conviction judgment issued against [Nombre007] is declared, and in its place, he is directly absolved of all penalty and responsibility. The contested judgment remains unaltered insofar as it absolved him for two crimes of Illicit Enrichment. B. Defects regarding the determination of the fact and the assessment of the evidence to determine the indications that led to the conviction for the crime of Illicit Enrichment. 1) Regarding the elements of the objective and subjective typicality of the crime of Illicit Enrichment that must make up the accusation and the evidence that must be assessed for the criminal-legal attribution of the fact to the defendant. In the first ground of the appeal by attorney Wilson Flores, and in the fourth ground on procedural form of the appeal by attorney Nazira Merayo, an erroneous application of substantive law is alleged, because the facts described in the accusation corresponding to facts 203, 208, and 210 do not describe the objective and subjective elements of the criminal type of illicit enrichment charged, corresponding to Article 346, subsection 3 of the Penal Code. They argue that the judgment incurs a violation of the principle of correlation between accusation and judgment, as established in Articles 363, subsection b) and 369, subsection h), both of the Code of Criminal Procedure. According to attorney Wilson Flores, the facts from number 199 to number 211 present problems regarding the typical description of the crime of illicit enrichment. They are correct in their claim. This Chamber has carefully read the facts attributed to the defendant [Nombre007], and it is observed that, in effect, it is attributed that various gifts consisting of money were presented to him, which were admitted by him while remaining in his position as an ICE official in the Switching Department; thus, fact 201 establishes:

“…201) The accused [Nombre015] and the indictee [Nombre035], as representatives of the Alcatel company, presented to the accused [Nombre007] in consideration of his office a gift consisting of money, which was admitted by [Nombre007] while remaining in the exercise of his position as a public official, specifically as Deputy Head of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment for him.” The Illicit Enrichment charged begins, as the Public Prosecutor’s Office might be positing in its accusation, first, by having been the subject of a gift offering, which is not a specific and specializing element of the crime charged, but of some other criminal figures, such as, for example, the crime of Bribery. As the defense postulates, there would be a need for the accusation to contemplate the specializing elements of Illicit Enrichment each time the act carried out by the accused is described, on the various occasions on which said criminality may have taken place. That is, each time a gift offering occurs, there should also be the imputation of the correlative acceptance. In a word, for the criminal charges to be complete, they should be described in this manner each time a new fact of Illicit Enrichment is attributed to the defendant. Furthermore, the crime of Illicit Enrichment requires that the accusation describe that the presentation of the gift is made in consideration of the office of the person who is a public official, because the gift by itself is already an objective requirement of the criminal type of several offenses such as improper bribery, proper bribery, or the very acceptance of gifts for an act already performed, for example. Hence, the accused fact and the eventual typicality of the conduct that could derive from it are not clarified with the required precision. In facts 203, 208, and 210, this deficiency is noted again:

“Without specifying a date, but after December 10, 2001 and before January 10, 2002, [Nombre015] and [Nombre035] presented to the accused [Nombre007] a gift consisting of investment certificates Nos. [Valor040], [Valor041], [Valor042] and [Valor043], all issued to bearer on December 10, 2001, with a maturity date of January 11, 2002, from Banco Cuscatlán of Costa Rica, each for ten thousand dollars ($10,000), for a total of fifty thousand dollars ($50,000) and their interest coupons for one hundred eighty-two dollars and ninety-five cents ($182.95).” In fact 208, it is charged:

“Without specifying a date, but between July 2, 2002 and August 5 of that same year, [Nombre015] and [Nombre035] presented to the accused [Nombre007] a gift consisting of bearer investment certificates from Banco Cuscatlán of Costa Rica No. [Valor044], [Valor045], [Valor046] for 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 for the total sum of $53.17.” In fact 210, it is charged:

“Without specifying a date, but between December 17, 2002 and January 21, 2003, the corrupters [Nombre015] and [Nombre035] presented to the accused [Nombre007] a third gift consisting of bearer investment certificates from Banco Cuscatlán of Costa Rica No. [Valor047], [Valor048], [Valor049] and [Valor050] each for the amount of ten thousand dollars ($10,000) for a total of forty thousand dollars ($40,000) and their respective interest coupons for a total of $100.80, which was accepted by the accused [Nombre007] and he disposed of it as follows:..”.

In this regard, the defenders of the accused [Nombre007] indicate that the above description does not contain the necessary requirements for the objective and subjective typicality of the charged illicit act, therefore, the accused facts would eventually become atypical as it is not established what, how, and in what manner the behavior attributed to the defendant was carried out. On the one hand, bearing in mind that we are dealing with intentional conduct where the person presenting the gift does so in consideration of the office of the official who receives and accepts it, there would be a need to describe the circumstances in which this knowledge plays a role, beyond admitting that such an element would be deduced from the position [Nombre007] held at ICE. This second condition of the typical fact is also intentional, and requires that the active subject know the reason motivating the presentation of the gift. As is well expressed in the dissenting vote of Judge Camacho, the criminal type of Illicit Enrichment can be fulfilled through two alternative conducts: i) the acceptance of an offered gift and ii) the acceptance of a presented gift. It is, in effect, two possibilities for the typicality of the fact, which must be delineated to clarify what is attributed to the active subject, who is, in effect, a public official, and is the object of these offers in consideration of said position. That is why, determining the scope of the prohibition, the active subject who takes material possession of the gift that is placed in his presence by another subject would fulfill the criminal type; but the active subject who accepts to receive in the future the gift that another subject has committed to give would also be punishable. As can be seen, the criminal figure is complex, it requires the demonstration of these alternative circumstances, in order to establish the conditions of the attributed fact. However, as Judge Camacho correctly points out in his dissenting vote, these are two facts that do not have the same legal significance (cf. Dissenting Vote of Judge Camacho, folios 2013 to 2015). The reception of the gift has different consequences in these alternative typical conducts: in the case where it is consummated with the mere acceptance of the offered gift, it is not necessary to demonstrate the reception of the gift itself, because consummation occurs with the “acceptance”. In the other case, the consummatory phase precisely requires that there be a demonstration of the reception of the gift. The dissenting vote maintains the following considerations in this regard, which this Chamber endorses:

“The reception of a gift from a previously accepted offering and the acceptance of a presented gift do not have the same legal meaning. In the first scenario, it is an irrelevant act of exhaustion, and the second scenario is the act that consummates the crime. All elements of the criminal type must be present at the moment of consummation. It is at the moment of consummation that the active subject must be a public official, that the gift must be presented and offered to them in consideration of their office, and furthermore, the official must remain at that moment in the exercise of the position. In the scenario of the typical conduct of ‘acceptance of a presented gift,’ all the cited typical elements must be fulfilled when the active subject takes possession of the gift. In the scenario of the typical conduct of ‘acceptance of an offering of a gift,’ all the typical elements must be present when the acceptance occurs, but it is not necessary for all typical elements to be present when the active subject takes material possession of the gift, which, as we have seen, is an irrelevant act, a moment at which they might have ceased to be a public official and that would in no way affect the typicality of the conduct at the moment of consummation (acceptance of the offer). It is for the foregoing that it is imperative to determine in each case the concrete conduct carried out by the active subject in light of the criminal type of illicit enrichment” (Dissenting Vote of Judge Jorge Camacho, folio 2015).

In the case of the facts attributed to [Nombre007], we would, therefore, be in the presence of an accusation for an incomplete fact, which does not satisfy all the elements of the objective type and leaves the subjective element of the fact without substance, both for the one who offers and the one who accepts the gift. It is taken into account, of course, that Illicit Enrichment is a subsidiary criminal figure, and that it comes into consideration in the face of the difficulty or impossibility of demonstrating other figures against the duties of public function, but in this specific case of the criminality attributed to [Nombre007], that subsidiarity cannot be found, not only because the accusation remains at the mere fact of the gift offering, and does not elaborate with sufficient evidence the other typical considerations of the punishable act. Moreover, the accusation leaves to judicial elaboration the requirements for fitting the punishable conduct that are not in the prosecutorial hypothesis and must arise from an effort of conjecture that conflicts with the limits of judicial action imposed by Article 39 of the Political Constitution. The defects of the accusation lead to preventing the attribution of criminal conduct to [Nombre007], regardless of how much evidence might be available regarding the sums of money offered or received. It is for this reason that the conviction judgment against [Nombre007] for one crime of Illicit Enrichment must be annulled, because the elements of the alternative objective and subjective typicality attributed to him were not charged and demonstrated; and it is appropriate, in such case, to absolve him of all penalty and responsibility for the crime of Illicit Enrichment, as reclassified, for which he was convicted. 2) Affront to the principle of in dubio pro reo, because it is not possible to know to which gift the Court grants the virtue of conferring the condition of being an “acceptance of a presented gift” which has specific characterizing elements that should have been charged and demonstrated by the trial court. In the fourth ground on procedural form of the appeal by attorney Wilson Flores, an infringement of the principle of in dubio pro reo is charged, because the court, in addition to substantially modifying the charged facts, convicts the accused for an Illicit Enrichment that includes the payment of a gift divided into three installments. This entails a violation of the principle of correlation between accusation and judgment, and implies a contravention of the provisions of Articles 9, 363 subsection b) and 369 subsection d), all of the Code of Criminal Procedure, judicial action that is sanctioned with nullity. According to the appellants, it is not known with certainty which of the three gifts offered to the defendant was offered in consideration of his position as a public official, that is, as Deputy Head of the Switching Department Directorate of the Costa Rican Electricity Institute and while he was exercising the same. The latter, because as set forth in the preceding analysis, each acceptance of a gift would constitute an independent fact, and, clearly, the fact contemplated as 201 would not cover the three gifts that, according to the accusation, Mr. [Nombre007] received. The underlying thesis of the appeals by attorneys Flores and Merayo would entail accepting that if one of the gifts described in fact 201 retains its typical materiality, it would result that the other two would be atypical and the defendant would have to be absolved for their commission. The surviving conduct, if it maintains the requirements of typicality, would have evidentiary problems that would prevent knowing which of the gifts, specifically, was received in the defendant’s condition of being a public official. Along with this, there is a significant area of doubt, because it is not known what type of behavior Mr. [Nombre007] was expected to carry out. A first hypothesis would imply that he was expected to perform an act proper to his functions. A second hypothesis would consist of the hope that [Nombre007] would omit an act proper to his functions. If this were the case, the typicality applicable to the behavior of [Nombre007], in both hypotheses, would correspond to a criminal type different from that contained in Article 346, subsection 3). The same would happen if the act expected of [Nombre007] was to delay an act corresponding to his functions or to perform one contrary to them. An additional hypothesis is also acceptable, that the gift was intended as a reward for an act performed or omitted. It would also not be out of the question to accuse [Nombre007], in abuse of his position, of having forced [Nombre015] or [Nombre035] to give or promise a gift. This last case also corresponds to an imputation different from Illicit Enrichment, properly speaking. The solution proposed by the majority vote seeks, then, to concentrate the illicit enrichment into a single offer with a gift in three installments. This circumstance, in effect, was not included in the accusation. The Public Prosecutor’s Office charged three independent crimes without characterizing elements, and in Considering XII of the Judgment, regarding “Description of the conduct of the accused [Nombre007],” it was stated:

“190) The accused [Nombre015] and the indictee [Nombre035], as representatives of the Alcatel company, presented to the accused [Nombre007] in consideration of his office a gift consisting of money, which was admitted by [Nombre007] while remaining in the exercise of his position as a public official, specifically as Deputy Head of the Switching Department Directorate of I.C.E., a situation that generated illicit enrichment for him. Said gift was paid in three installments.” This, without a doubt, transforms the charged fact, trying to accommodate the circumstance of the gifts and the absence of characterizing elements for each of them, to involve a fact that surprises the defense, in the sense that a conviction is entered for a gift in installments that [Nombre007] would receive for carrying out activities or omissions that are not clarified, as well as the conditions under which the payment in installments would be explained.

The foregoing is incompatible with the circumstance accepted by the majority court that sentences the defendant for “acceptance of a gift offered,” which is a different fact requiring proof of different characterizing elements that have not been proved, much less attributed to the defendant. It is true that the Court, in application of the principle of favorability, preferred to convict for a single act of Illicit Enrichment; however, despite that, the imputation of a single offer of a gift does not allow us to know which of them it concerns, as was explained in the preceding section, and could lead one to think of the criminality of different criminal acts where a gift is an element to be taken into consideration, as is the case of active bribery (cohecho propio), passive bribery (cohecho impropio), acceptance of gifts for an act performed, and the same penalty of the corrupter. It is for this reason, therefore, that there would also be no basis to convict the accused [Name007], and there would be sufficient reason to declare the nullity of the judgment, insofar as it holds the defendant criminally responsible for the crime of Illicit Enrichment, by reclassification. A) Regarding the conviction for personal costs imposed on the accused [Name007]. Attorney Wilson Flores claims that the judgment incurs the defect of lack of reasoning regarding this aspect, and thereby violates the provisions of Articles 142, 363(b), and 369(d), all of the Code of Criminal Procedure (Código Procesal Penal), a flaw sanctioned with nullity. The fifth ground of the appeal by attorney Nazira Merayo pronounces in the same vein. They begin their argument with what was raised regarding the personal costs imposed on [Name007], without evidentiary basis as to his solvency. Regarding the issue of costs, the judgment states: “Given the proven economic solvency of the sentenced parties [Name004], [Name001], [Name018], and [Name007], who opted for legal advice from attorneys of the Public Defense of the Judiciary, in accordance with Articles 152 of the Organic Law of the Judiciary and 265 of the Code of Criminal Procedure, each must pay the fees of the professionals who have assisted them during this process. The amount set at the sum of TEN MILLION COLONES which covers their professional performance from their appearance and until the dictation of this ruling, but not any eventual appeals and other procedures required after its issuance. Said sum must be paid by each of the accused in favor of the Judiciary within fifteen days following, computed from the finality of the ruling, with the consequent seizure and auction of their assets in the event of breach of this obligation.” In this regard, it indicates that the judgment does not say how it reaches the conclusion of the effective economic solvency of [Name007], which leaves the ruling unreasoned in this respect, because even though the personal liberty of the defendant is not affected, the ruling must be self-sufficient in its reasons regarding the impact on the accused’s assets. This aspect must be declared with merit. Indeed, the judgment lacks adequate reasoning of the defendant’s economic condition and the reasons why he should pay for the judicial action of the public defenders who have represented him. This aspect, of great importance to the case, required a detailed reasoning that allows understanding why [Name007] must assume these costs of the proceeding against him. By virtue of this, and because the judgment lacks sufficient reason in this regard, it is appropriate to declare its nullity regarding the issue of costs. B. Confiscation (comiso) of the Suzuki Grand Vitara XL vehicle, license plate No. [Value032]. The defendant was sentenced, as a consequence derived from the punishable act, to the confiscation (comiso) of a vehicle, specifically a Suzuki Grand Vitara XL, license plate No. [Value032], for which there is no reasonable determination in the judgment that said vehicle was acquired with funds from the illicit activity under investigation or is a direct product of the criminal activity undertaken. The appellants are correct in relation to the issue of the confiscation (comiso) of this vehicle. It is observed that the resolution on this point is unfounded, which in principle warrants its nullity for a new proceeding; however, by virtue of the manner in which the other issues raised in relation to [Name007] have been resolved, remand does not proceed, and on the contrary, based on the provisions of the third paragraph of Article 465 of the Code of Criminal Procedure, it is appropriate in this appellate venue to correct the issue raised. It has not been possible to determine that the vehicle in question was acquired with funds from the alleged illicit activity of [Name007]; the mere circumstance that the defendant held ownership of this vehicle is not sufficient to prove it was acquired with money from illicit activities. Consequently, it is appropriate to grant the grounds for challenge, order the nullity of the confiscation (comiso), and the return of the vehicle to the person from whom it was seized.

X.- THE APPEAL FILED BY DEFENDER MARIO NAVARRO ON BEHALF OF ACCUSED [Name009] IS RESOLVED.- Attorney Mario Navarro filed a cassation appeal on behalf of his client [Name009], but also starting on folio 172091 and concluding on folio 172271 of Volume XXXVIII, based on 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, Transitional Provision III of Law No. 8837 Creating the Appeal Against Judgments, and within the two-month term granted by the Third Chamber of the Supreme Court of Justice, filed an APPEAL AGAINST the judgment 167-2011 issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, at three o’clock in the afternoon on April 27, 2011, which convicted his client of three crimes of Penalty of the Corrupter for Aggravated Corruption in the form of passive bribery (Cohecho impropio), imposing a total of 15 years in prison. In this appeal, attorney Mario Navarro Arias includes two new grounds related to form, regarding the alleged incorporation of illegal evidence in the ruling, as well as disagreement with the determination of facts. In the same manner, he adds a new ground directed against the scant reasoning of the penalty imposed on his client, as well as three grounds in relation to the civil aspect of the judgment. Of the issues proposed by attorney Navarro, representing the defendant, this Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of Mr. [Name009] for three crimes of Penalty of the Corrupter for Aggravated Corruption in the form of passive bribery (Cohecho impropio). First Section.- Defects that by themselves imply the nullity of the entire resolution. A. Spurious evidence. In the first ground related to the form of the appeal by attorney Mario Navarro on behalf of [Name009], the incorporation of illegal evidence and the consequent violation of due process is alleged. It indicates that the illegality of documentary evidence number 588 has been insisted upon, which is a certified copy from the Judicial Assistance of the Republic of Panama, sent via 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 of the Panamanian company Marchwood Holding, would be tainted for several reasons: 1. It was brought into the process at the instance of the Public Prosecutor’s Office without a prior judicial order. 2. The banking documentation was obtained from the so-called “CAJA-Fischel” case, file No. 04-005356-0042-PE), where, as banking secrecy had not been lifted, the Third Chamber of the Supreme Court of Justice, by resolution number 2011-00499 at 11:45 hrs. on May 11, 2011, by majority granted the appeal filed by the defense, decreeing the nullity of the evidence gathered in Panama, and all the evidentiary elements that depend on it. 3. By virtue of the fact that the chain of custody was violated, as the content of said evidence was leaked to the press, long before the intervening parties in the process became aware of it, so much so that in the newspaper “La Nación” of September 8, 2004, visible on folios 2 and 3 of Volume I, the public is informed of its content. In the same vein, and for greater clarity, it refers to accused fact number 190, where the Public Prosecutor’s Office expressly alludes to the publication made on “Telenoticias” in the first days of September 2004, where it is indicated that as a result of the evidence gathered in Panama, it was discovered that the company Servicios Notariales Q.C. deposited large sums of money into the account of Marchwood Holding Company. Regarding what was indicated about the illegality of evidence 588, it considers that the lifting of banking secrecy was not ordered by a competent judge, and, consequently, there was also no reasoned resolution that evaluated said diligence, prior to its execution. The Trial Court rejected the defective procedural activity raised by the defense, indicating that the order to lift banking secrecy was not necessary, since [Name032] himself, a co-accused in the Caja-Fischel process and a witness in the sub judice, had given his consent for said evidence to be gathered. The appellant considers that the authorization given by [Name032] would cover the elements of said evidence that affect his own interests, but in no way can it authorize the impairment of the fundamental rights of the remaining accused. As attorney Navarro analyzes it, Law No. 7425, Law on Registration and Seizure of Private Documents and Interception of Communications, in its Article 29, clearly establishes that “There shall be no illegitimate intrusion when the holder of the right grants their express consent. If there are several holders, the express consent of all must be obtained.” Furthermore, if hypothetically [Name032] were legitimized to grant that consent, it is clear, in his view, that said assent must have been prior and not subsequent. He cites in support of his thesis the doctrine of Prof. Francisco Castillo, in his text “Derecho Penal. Parte General, p. 366, cited, in turn, by the dissenting vote. With support also in Ruling (Voto) 111-1993 of the Third Chamber, at 8:40 hrs. on March 26, 1993 (which has doctrinal references to Bacigalupo, who also refers to Schmidthäuser), he insists that consent must be prior to the infringement of the legal right. Based on this doctrinal assertion, he says that the evidence alleged to be illegitimate was obtained in September 2004, and it was not until May 2010, according to document no. 759, that Mr. [Name032] “validated” with his consent the illegally obtained evidence in Panama. This consent, then, cannot disguise the constitutional violation committed in relation to the rights of the other co-defendants. If the consent of all those affected was not obtained, an express order from a competent judge should have been requested to order the lifting of banking secrecy, which evidently did not occur, hence the irregular action of the Public Prosecutor’s Office. As it was evidence 588 that allowed the detection of the existence of Servicios Notariales Q.C. S.A., as is evident from reading accused fact number 190, and based on that, to request the lifting of banking secrecy in relation to that anonymous company, as is evident from documentary evidence numbers 86, 87, 90, and 91, outlined by the Public Prosecutor’s Office in its accusatory document and used as the essential basis for dictating the judgment. Both the request and the orders to lift secrecy would be, as the challenger postulates, lacking in evidentiary validity. The same happens with the evidence obtained through Banco Cuscatlán, as well as all that which is linked to documentary evidence number 588 and refers to Servicios Notariales QC S.A. On the issue of illegal evidence and its problems, he cited several jurisprudential precedents from the Third Chamber and the Constitutional Chamber, which underline the need to obtain the investigation of the real truth through a fair trial, based on legitimate evidence, which will be evaluated by the judges. He also reviews the criterion of the Third Chamber on the banking evidence obtained in the Caja-Fischel case, and deduces that we are in the presence of an absolute defect that has been overlooked by the intervening authorities in the case known as Caja-Fischel. He considers, then, that the direct request from the Costa Rican Public Prosecutor’s Office to the Office of the Attorney General of the Republic to obtain the evidence, without the intervention of the Guarantee Judge, is inadmissible. He considered, in this regard, the emphasis placed by the Costa Rican legal system on entrusting the judge with the final decision when fundamental rights of citizens are at stake, especially when the right to privacy, the secrecy of communications, or the inviolability of private documents is going to be affected. The Chamber underlined the necessity, in accordance with ordinary legislation, that it be reviewed that the order was reasoned, as well as that the documents subject to the order be individualized, the name of the person holding them, and the place where they are located. Regarding the criminal activity, it would be essential to assess the proven indication regarding the commission of the act and the weighing of the extremes of the principle of proportionality. The request, as it was formalized by the Costa Rican Public Prosecutor’s Office, failed to comply with a requirement that was not a mere formalism but a primordial element to permit, in accordance with domestic law, the intrusion into the private sphere of a person. The Chamber includes a list of a series of norms of the legal order that would require said jurisdictional intervention. Among them, 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 included in Articles 2 and 3 of the Law on Registration, Seizure, Examination of Private Documents and Interception of Communications and 107 of the Organic Law of the Judiciary. This supposes, the Chamber affirms, that Articles 226 and 290 final paragraph of the Code of Criminal Procedure, establish the possibility for the Public Prosecutor’s Office to require reports from private individuals or public entities, according to what is stipulated, provided it does not concern private information protected by Article 24 of the Constitution; otherwise, in accordance with the second paragraph of Article 181 of the Code of Criminal Procedure, a violation of the right to the inviolability of private documents would occur. He insists that the Mutual Legal Assistance Treaty is an instrument to strengthen and facilitate the cooperation of justice bodies in the region, but such cooperation must be carried out in full respect for the domestic legislation of the member countries. The streamlining of procedures could not be, the ruling of the Third Chamber holds, a way to foster arbitrariness, arrogance, or disrespect for constitutional guarantees and the current domestic order. He asserts that a conviction at all costs cannot be achieved, but rather one resulting from the correct introduction of evidence into the process, in accordance with the Constitution and the law in force in the country, and, in its evaluation, with strict adherence to the rules of sound critical judgment. He finally considers, after making some evaluative and doctrinal remarks, that the Assistance Treaty is not above the Political Constitution. Therefore, obtaining the evidentiary elements brought into the criminal process against [Name032] and the other co-defendants, through letters rogatory to Panama and their amplifications, without observance of the constitutional and legal guarantees that govern the ability to request their obtaining in accordance with the domestic order in Costa Rica, constitute elements of spurious evidence, illegitimately incorporated into the process. And through the defective procedural activity of an absolute nature, its ineffectiveness is declared, as well as that of the other evidentiary elements that derive directly from it, specifically: the documentary evidence obtained through the Letters Rogatory to Panama and their amplifications, the investigatory statement of [Name032], insofar as it is based on the evidence from Panama, among other considerations of interest. The challenger requests that the grounds of appeal be granted and the nullity, the ineffectiveness of the evidence gathered in Panama through the Mutual Legal Assistance Treaty in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama, be decreed, as well as all the evidentiary elements that depend directly on it, and, by virtue thereof, as the accusation lacks evidentiary basis, his client [Name009] be acquitted of all penalty and responsibility for the acts attributed to him and his immediate release be ordered, given that it is unnecessary to remand the process for a new trial under the terms established in the law regulating the appeal of judgments. He is correct in his claim. The arguments for analyzing this legal problem have already been explained earlier, when resolving the appeal filed by Dr. [Name012] (A-1). Thus, it is appropriate to apply to the defendant [Name009] the same effects that this determination had for the defendant [Name012]; the nullity of documentary evidence No. 588 and all evidentiary elements that depend on it is declared, the nullity of the criminal convicting judgment issued against [Name009] is declared, and in its place, he is directly acquitted of all penalty and responsibility. B. Defects regarding the determination of facts and the evaluation of evidence to establish the indications that led to the conviction for three crimes of Penalty of the Corrupter for Aggravated Corruption in the form of passive bribery (Cohecho impropio). 1. Violation of the principle of evidentiary evaluation and the rules of sound critical judgment based on the evaluation given to the statement of [Name026] about the promise that payment would be made through accounts of Servicios Notariales Q.C. S.A. Attorney Navarro raised this argument both in the cassation appeal and in the appeal by conversion. In the seventh ground related to form, he questions that the Court, in its majority vote, sustained the existence of a prior plan in which [Name009] participates based on the version of [Name026], since according to the ruling, the latter stated that he knew from the beginning that the promise would be fulfilled through payments or transfers from the accounts of Servicios Notariales QC S.A. He refers to the cross-examination that the defense conducted of [Name026] regarding his knowledge of [Name009], and how he became interested in this anonymous company. On this issue, he maintains in his brief the following: “…When [Name026] is testifying, this defender questions him about whether or not he knows [Name009]. [Name026] answers affirmatively and adds that he met my client in the nineties, at a meeting of the Unidad Social Cristiana party, as it seemed both were militants of that political party. When the defense of [Name009] confronts [Name026] about the acts investigated and their date, he answers that NO, THAT IN RELATION TO THESE ACTS HE NEVER HAD CONTACT WITH [Name009]. And he adds in summary that, KNOWING THAT THE MONEY TRANSFERS CAME FROM A BANK ACCOUNT IN THE NAME OF THE COMPANY SNQC, he undertook the task of investigating who was behind that account, and that is how he MANAGES TO NOTICE, FIND OUT, LEARN, HAVE KNOWLEDGE, WARN THAT THE ONE MANAGING THAT ACCOUNT WAS my client [Name009]. But he never said, affirmed, or indicated that PRIOR TO THE MONEY TRANSFERS or delivery of the certificates of deposit, he had knowledge that he was going to be paid through SNQC, as the Court erroneously states, thereby violating the rules of sound critical judgment, particularly the principles of sufficient reason and derivation in the evaluation of the evidentiary elements. This circumstance being a fundamental pillar for attributing to my client his participation in a prior plan for the commission of crimes, it is evident that the ruling presents an insurmountable defect…”. He also rejects the court’s thesis, adding the detail that there is also no evidence linking his client with [Name004] or with [Name001], in the sense of having met in meetings, conversations, or in any other way with them. There is no contact between them, let alone before the project for 400 thousand cellular lines occurred, or before the endorsement by the Comptroller General’s Office occurred, or even before the formation of the contract between Alcatel and I.C.E. He considers that the judicial conclusion harms the rules of sound critical judgment, not only because there are no elements to think of a possible action within that prior plan presumably known to him, but also because the rest of the indications used by the court are ambiguous in this regard, as is, for example, the kinship between [Name009] and [Name015]. Thus, he suggests that if one hypothetically removes the false statement maintained by the Court, the one that states THAT [Name026] INDICATED THAT FROM THE BEGINNING HE KNEW THAT HE WAS GOING TO BE PAID THROUGH SNQC, it is not possible to maintain the conviction of his client as part of a prior plan established for the commission of the crimes of Aggravated Passive Bribery (Cohecho Impropio Agravado). He suggests, then, that if his position is admitted, what applies, in application of the principle of procedural economy, is to apply the content of numeral 9 of the Code of Criminal Procedure, that is, the principle of in dubio pro reo, and in that sense, to abide by what most favors his client, that is, that he only delivered the monies without participating in the prior plan. If this is the case, then his conduct is atypical as it does not constitute the criminality for which he is accused or, at least, acts of real facilitation that would have the consequences this Chamber decides to give them. In a subsidiary manner, he requests a remand proceeding, following the ineffectiveness of the ruling in its entirety and the debate held. He is correct in his claim. This Chamber has listened carefully to the statement of [Name026] and it is observed that, indeed, he does not affirm that he knew that [Name009] would manage the funds he would receive as payment for the gifts that were promised to him, as the Court erroneously assesses in the ruling. Additionally, and as has already been held in relation to the analysis of the statement of [Name026] with respect to Dr. [Name012], the statement of this “cooperating accused” is unreliable and should have been subjected to a critical analysis of its consequences, not only because of the constant variations in the content of what happened, but also because of the momentous modifications of the facts he incurred. His statement has already been recognized by this Chamber as unreliable, not only because of the various versions offered of the facts, but also because there is certainty that his was an interested statement aimed at achieving impunity, which should have subjected the majority court to a stricter duty to be suspicious and subject all the independent evidentiary elements that confirmed or corroborated that, indeed, Mr. [Name009] was part of a prior plan to corrupt public officials of ICE to solid and profound criticism. The judgment at folio 1130 and following, holds that there was a prior plan constructed by [Name015], [Name035], [Name009], and [Name018], to channel resources from Alcatel CIT, making its officers believe that said funds were for the payment of consultancies signed with the companies Servicios Notariales Q.C. S.A. and Intelmar S.A. The majority vote places Mr. [Name009] as a key piece for the payment of the gifts, by virtue of his connection to the Company Servicios Notariales Q.C. S.A. and due to professional and consanguineous ties with officers of that company, despite not being the legal representative of that juridical person. The judgment places him by August 2001 (folio 1142) as Vice President of the anonymous company and therefore involved in the payments made from that date onward. Specifically, at the time his wife, Mrs. [Name074], a teacher by profession, was the owner of the share capital of Servicios Notariales QC S.A., clearly a person unrelated to the business activities of the juridical person, and therefore a mere symbolic representative of the company. [Name009] is also linked with [Name015], as the wife of Mr. [Name015] is the sister of [Name009] (folio 1143 of the judgment). It is for this reason that the judgment places [Name009] in charge of the activities of the anonymous company by September 2001, in fact, he is placed issuing instructions to the Private Banking Department, leaving Mrs. [Name074] as a mere front person without much control over the activities carried out. It is for this reason that this Chamber considers that together with the statement of [Name026], all these circumstances were decisive in placing [Name009] at the center of the executive plans to corrupt officials, making him a key piece for getting the payments to the dishonest officials. However, there is no evidence that [Name009] directly participated in that common plan, beyond the continuation of the consultancy activities that the Anonymous Company had already been providing for Alcatel since 1990. Consultancy activities that also encompassed the management of money, which of course involved the payments made during the period when the intervention of this anonymous company for the payment of gifts is investigated, but also for other contracts and activities of the company that have not been alleged to be illegal. The judgment places these consultancy contracts as a mechanism to hide the real cause for which these monies were received, but the truth is that said contracts were signed in early 2001 (fact 55 of the accusation) around the time of the supposed conception of the corrupt plan. However, there is a continuation of the activity already provided for Alcatel, and it is not found in the judgment how the continuation of that line of business of the company, which already managed millions of dollars from Alcatel, could not have received orders, decontextualized from the general corrupt plan to honor consultancy contracts, which seemed to be normal practice for Alcatel as some Alcatel employee witnesses at trial, such as Mrs. [Name075], stated. In any case, the judgment is not convincing on the alternative thesis now offered by the defense, that the activity of [Name009] was decontextualized from the corrupt plan and that it could have been, at least, a material facilitation that was not charged. The lack of reasoning in this regard, and the support for the common corrupt plan, which is based on nothing more than an overall vision that the court in its majority vote constructed, is not sustained with the elements that have been evaluated, very specifically with the statement of [Name026], so, in application of the principle of in dubio pro reo, [Name009] would have to be acquitted of all penalty and responsibility for the three illicit acts of Penalty of the Corrupter for Aggravated Corruption in the form of passive bribery (Cohecho impropio) for which he has been accused. 2. Rejection of evidence important for the technical defense of the defendant [Name009]. In the eighth ground related to the form of the cassation appeal and in the tenth ground of the appeal filed by attorney Mario Navarro on behalf of [Name009], a VIOLATION OF DUE PROCESS AND THE RIGHT OF DEFENSE IS ALLEGED DUE TO THE REJECTION OF IMPORTANT EVIDENCE FOR THE DEFENSE.

[It argues that] during the debate period, the company Alcatel and the Government of the United States of America, specifically the United States District Court for the Southern District of Florida, according to case 1:10:CV=24620,DLG, with the Securities and Exchange Commission as Plaintiff and Alcatel Lucent S. A. as Defendant, negotiated that from December 2001 until 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 officials of the government of Costa Rica to obtain or retain three telephone service contracts in Costa Rica for an amount of approximately three hundred and three million dollars. This agreement between the Government and the Company was brought to the attention of the parties by the Instituto Costarricense de Electricidad in January of two thousand eleven, after the holiday recess. This evidence, says the defender, was transcendental for the legal positions that had been maintained in relation to Mr. [Name009]. Firstly, because it unmasks the Alcatel company as a company linked to corrupt activities to obtain and maintain public contracts in the telephony field. Secondly, it places Alcatel's activity within the facts investigated between early two thousand one and October two thousand four. Thirdly, and this is a thesis that is repeated throughout the appeal, that the sums received by Servicios Notariales QC S.A. not only came from the 400-thousand-line contract, but also from other contracts, these ones licit and unrelated to the “400K” contract. [He] says that this settlement document between Alcatel and the U.S. government demonstrates what the defense maintained at trial. [He] argues that the other defenders opposed this document except for the defense of [Name009]. The Tribunal, however, rejected it as untimely and for not being translated. The representatives of ICE tried to have it admitted, later, already translated, however, the Tribunal rejected it as untimely. [He] considers, finally, that with this evidence, the defensive thesis that had been presented in debate is sustained, which denatures the version given by [Name075], who defended the Alcatel company at all times, and that it was essential evidence for the conviction of his client. That evidence, in a word, as the appellant maintains, would call into question the factual underpinnings of the judgment and it could no longer be maintained that “…SNQC had received more than fourteen million dollars for the processing of the four hundred thousand cell lines and to pay bribes for that contract…” It is for this reason, and for the injuries alleged against due process and the right of defense, upon rejecting transcendental evidence, that [he] requests that the entire judgment be declared ineffective and a new trial be ordered. [He] considers that the defect alleged is absolute and did not require prior protest. This aspect raised by the defense is, in effect, an absolute defect, and it is appropriate to declare it so, for the injuries it implies to the right of defense at trial and to due process. The evidence mentioned is, in effect, important for discussing Alcatel's condition from a company deceived by its representatives, to a multinational conglomerate that used corrupt mechanisms to achieve its business objectives. The settlement with the U.S. Government had interest both for establishing the facts in relation to the intervention of Servicios Notariales QC S.A. and the handling of money that was done at the time of the investigated facts, but also regarding the possibility that the factual view presented by the defense had solidity. That is, that there were licit contracts, processed beforehand and justified in the line of representation, advisory, consulting, and administration services that this corporation carried out for Alcatel, which brings highly relevant elements to discuss that should have been analyzed in detail by the judgment in question. The non-admission of this evidence for better provision, duly translated, and not previously known, since it was generated at a stage of the process that the parties could not control, had relevance for the interests of the defense and should have been admitted by the trial court. It is for this reason that, on these grounds, the condemnatory judgment in relation to [Name009] must also be annulled. 3. Erroneous application of Substantive Law. Violation of the Principle of Legality. In the twelfth ground of appeal by attorney Mario Navarro, an incorrect application of substantive law is raised in relation to the alleged criminality committed by [Name009] in relation to the co-defendant [Name001]. [He] begins his argument by transcribing facts number 128, 129, 130, and 131.

“ 128) The accused [Name001] began working at I.C.E. at the end of the year 2000, as Executive Assistant of Senior Administration in the Executive Presidency, an appointment formalized as of January 1, 2001.

129) Within his duties, he was responsible for addressing specific matters of the Executive Presidency such as, analyzing documents submitted for the knowledge and approval of the Executive President, providing advice and recommendations on them, coordinating with the different dependencies of the Institute regarding the execution of projects and directives, coordinating and participating in special commissions formed, collaborating in the elaboration and implementation of programs and projects promoted by the Presidency, and representing I.C.E. in different governmental and non-governmental bodies, related to the field of electricity and telecommunications. Likewise, among the projects he was in charge of, the abbreviated process 1-2002 for the lease of the 400,000 GSM cell lines stood out.

130) From his entry into the institution, the defendant [Name001], as assistant to the Executive Presidency, became responsible for accelerating matters related to the topic of telecommunications. Subsequently, the defendant [Name001] was appointed to preside over a high-level commission made up of an interdisciplinary group of professionals that had under its responsibility the study and execution of the project of the 400,000 lines, together with [Name027], member of the Board of Directors, and officials [Name061], manager of the Mobile Services UEN, and [Name052] in his capacity as Executive President.

131) Without specifying a date, but in the period comprising late 2000 and early 2001, the indictees [Name015] and [Name035] asked defendant [Name001] to carry out the necessary actions within the scope of his duties as advisor to the Executive Presidency of I.C.E., and person in charge of the execution of the 400,000-line project, to make said contracting effective, favoring Alcatel; in exchange for the above, [Name035] and [Name015] promised [Name001] the delivery of a gift consisting of money, the exact amount of which was not set at that time. Said promise was accepted by defendant [Name001]; it was also agreed that the delivery would be conditioned upon the effective award of the bid that Alcatel would present to I.C.E.

132) For having complied with the agreed actions, once he managed, together with other I.C.E. officials, to open the tender for the purchase of cellular telephony and the award of the contract for the 400,000 GSM lines in favor of Alcatel, as previously agreed with indicted [Name015] and indictee [Name035], he received the promised gift corresponding to a percentage of the contract that Alcatel obtained with I.C.E., a payment that was made in a segmented manner through the intermediation of co-defendant [Name009] with money coming from Alcatel Cit.” It is based on these facts that have been deemed proven, that the commission of a crime of penalty of the corruptor for aggravated corruption in the modality of improper bribery is attributed to [Name009], in relation to [Name001]. As already analyzed when addressing the appeals in favor of [Name001], it is not known with certainty what the supposed actions were that [Name001] was asked to carry out with the aim of achieving Alcatel's objectives in the contract for the 400 thousand cell lines, so the criminal participation of [Name009] in the act attributed to [Name001] is, at the very least, uncertain and improbable. This ground must be granted. As analyzed in detail when addressing said appeal in favor of [Name001], the award procedure was pristine and in accordance with the law, and the intervention of [Name001], due to his field of experience and expertise, had nothing to do with the technical and legal aspects that could have a final impact on the concession of the 400 thousand lines to Alcatel. In fact, and as this Chamber analyzes previously, it is not known what role [Name001] was expected to play in relation to the decision-making procedure within ICE, nor regarding the form and content of an abbreviated procedure that, in essence, was not favorable nor did it provide certainty to Alcatel. This company was better served, in terms of the certainty of its participation, by the direct purchases (compras directas) procedure. [Name001] was in charge of coordination functions that had nothing to do with the direct purchases process, and as observed in the succession of decisions of the ICE Board of Directors, the path toward an abbreviated procedure was defined by the Contraloría General de la República and not by ICE. [Name001]'s acceptance of having received money from Alcatel does not allow for determining, either, if said sums were delivered rather as payment for a specific act of his own duties. The uncertainty in this regard opens a wide range of possibilities of criminal classification ranging from the receipt of gifts for a fulfilled act to Illicit Enrichment (Enriquecimiento Ilícito) itself, but not necessarily to improper bribery (cohecho impropio). That specific act that was asked of [Name001], as interpreted by the appellant, was not indicated in a clear, precise, and specific manner by the tribunal. If this is so, and there is no precision about the fact, there would also be doubt whether [Name009] was responsible for the crime of penalty of the corruptor, for both facts are intimately related, and it is for this reason that on these grounds he must be acquitted of all punishment and responsibility for the acts attributed to him in relation to [Name009]. 4. Forfeiture (Comiso) to the State of various properties. In the third ground based on form in the cassation appeal of attorney Mario Navarro in favor of defendant [Name009], ERRONEOUS AND INADEQUATE REASONING IS ALLEGED. VIOLATION OF DUE PROCESS AND THE RIGHT OF DEFENSE DUE TO ERRONEOUS APPLICATION OF ARTICLE 110 OF THE PENAL CODE. In the judgment, forfeiture of the following properties is decreed:

A.4) Partido de Heredia registered under the Real Folio system, Matrícula N° [Value025], Submatrícula [Value018] in the name of the company Punto de Negocios LQC Sociedad Anónima. A company belonging to defendant [Name009] who proceeded to nourish it with illicit funds coming from Alcatel Cit, given that with those funds he carried out various banking transactions and businesses of different kinds, such as the purchase of the described property.

• 4)Of the shares of [Name009] in the company La Selva de La Marina S.A. owner, among others, of the properties registered in the Public Registry under the Real Folio system Matrícula N° [Value030], Submatrícula [Value018] and Matrícula N° [Value031], Submatrícula [Value018]. Real estate that was acquired with illicit funds that came from Alcatel Cit.

According to the appellant, the tribunal omitted to reason and explain why it considered that these assets came from the illicit activity supposedly attributed to the justiciable. In a word, the causal nexus between the commission of the act and the assets upon which the forfeiture will fall is not demonstrated. In the same manner, there must be certainty that there is no third party or the defendant himself with rights over said assets. According to the challenger, from the economic studies carried out it can be inferred that there would be rights of other persons over the mentioned assets:

“…And it is that, as indicated in point 4.4 of Expert Report No. 202-DEF-445-05/06 (Evidence No. 619), the company Punto de Negocios LQC S.A was incorporated on April 8, 2002 by defendant [Name009] and [Name076], before Notary [Name077]. The corporate capital was formed by the sum of one million colones represented by one hundred common and nominative shares of ten thousand colones each, of which [Name009] subscribed 99 shares and partner [Name076] one share. According to a notarial certification from 2:00 p.m. on January 27, 2003, [Name009] holds the position of President with Judicial and extrajudicial representation of the company Punto de Negocios LQC, S.A. A company that is registered in the Mercantile Section of the Public Registry at folio 196 of volume 1497, entry 98. See annex 13 of report 202 folio 170.

And in point 4.3.1 of the same report, it is indicated by the experts of the Economic and Financial Crimes Section that it was corroborated that the Company Selva de La Marina, corporate identification number N° 3-101-345347 was incorporated on May 5, 2003 by [Name078] and [Name079] before Notary [Name077]. The corporate capital was established in the sum of 50,000,000.00 million colones represented by 50,000 shares of one thousand colones each, of which Mr. [Name078] subscribed 49,999 shares of one thousand colones each and [Name079] one share of one thousand colones.

It is from the same evidence incorporated into the adversarial proceedings, that it is easily inferred that the assets whose forfeiture the Tribunal is ordering, are duly registered in the name of corporations in which, apart from my defendant, there exist other 'partners' with interests in them. Jurisprudence and doctrine have determined that the Tribunal that orders forfeiture, must be 'very cautious and zealous at the moment of adopting such a decision' in order not to affect the rights and guarantees, not only of the accused, but also those of third parties unrelated to the process. Likewise, that, 'in order not to affect the rights of all those persons who have no relation to the illicit act,' mere probability or presumption is not enough, but rather 'absolute certainty is required, in order not to violate the principles that inform due process, such as: the principle of legality, of innocence, of defense, of fair trial, of guilt, etc.,' as ruled by the Sala Tercera of the Supreme Court of Justice in judgment 865-97 of 10 hours 20 minutes of August 22, 1997…” In support of his thesis, he cites a precedent of the Cassation Tribunal, Voto No. 00377 of 13 hours 45 minutes of November 16, 2010, which sustains the need to establish the causal nexus existing between the assets upon which the forfeiture falls and the commission of the punishable act. In the same sense, [he] estimates, the Sala Tercera of the Supreme Court of Justice rules, when in its Voto No. 00121 of 2010, after entering into some considerations about forfeiture and its legal nature, that its dictation requires solid reasoning in accordance with articles 142, 143, 363 subsection b) and 369 subsection d) of the Code of Criminal Procedure. [He] points out that there is no such solidity in the reasoning of the judgment under review, the argumentation followed by the Tribunal to decree the forfeiture that so affects the interests of the justiciable as well as third parties, which the judgment itself acknowledges existed, is not observed. The ground must be granted. The Tribunal does not explain the connection of the assets it decrees in forfeiture with the illicit activity of [Name009], nor whether there were rights of third parties over them. Nor is there certainty whether these properties were acquired with funds from Alcatel, or whether the course of their acquisition was made with other assets coming from the professional activity or line of business of the justiciable. The latter, because the source or origin of the acquisition of these properties and assets in general may come from sources independent of those investigated in the case. There are elements that allow for supposing that there was a relationship between Alcatel CIT and Servicios Notariales QC S.A. since the year 1997, which proceeded from the development of contractual consulting activities that have not been questioned. The sources of acquisition of those assets could, therefore, be part of the licit activities developed in years prior to the period investigated in this case. In other words, to be able to decree the forfeiture, there must be adequate reasoning in the judgment demonstrating that the source of acquisition of these assets proceeds from the corrupt activity that the majority vote attributes to Alcatel and which proceeds, allegedly, from the criminal plan developed by [Name015] and [Name035]. In the same manner, it must be demonstrated that all the flow of money, or part of it, comes from crime, and if so, whether those economic flows served to buy those assets now being forfeited. In the same way, that such decree does not affect the rights of those persons who have no relation to the illicit activity. In this regard, and with reason, the challenger points out that there were economic movements that reached the assets of Bufete Valerio Casafont, and said movements were not classified as illicit, and their source was Servicios Notariales QC S.A. In other words, what was paid to this firm should be deemed, therefore, a licit activity that has as its source of payment, the funds that Servicios Notariales QC managed for Alcatel CIT. Furthermore, citing Article 110 of the Penal Code is not sufficient reasoning for a forfeiture of such proportions, without even leaving record of the certainty of the origin of these assets from the criminal activity of the justiciable. The defender's thesis is also supported by the demonstration made of payments of substantial sums to Macro Investment or to Tele Investment that also proceed from the accounts managed by Servicios Notariales QC S.A., as demonstrated at trial with the help 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, No. 7 with 251 folios. According to the appellant, with these elements the totality of the origin and destination of the money from Alcatel Cit and delivered by [Name009] in favor of the indictees in the case is verified, but the Tribunal did not take care to analyze this evidence, and, ignoring that it was private money managed by the Company Servicios Notariales Q.C., decreed the forfeiture of two assets, specifically the PERCENTAGE IN A COMPANY CALLED LA SELVA DE LA MARINA and a dwelling belonging to PUNTO DE NEGOCIOS LQC S.A., acquired with funds unrelated to THE OBJECT OF THE CRIME IMPROPER BRIBERY. It is for the foregoing, that it is appropriate to revoke the forfeiture of the assets described and it falls to the competent tribunal to order the return of the forfeited properties and shares. 5. The questions regarding the topics derived from the civil actions brought against the justiciable. The appellant, also acting in the capacity of Special Judicial Attorney 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 [Name009] in his personal capacity, based on the cited regulations, within the same legal term READAPTED THE ADHESION ALREADY FILED IN ITS PROCEDURAL MOMENT, to an appeal, and added several grounds regarding the civil aspect of the judgment. A first argument has to do with the absence of reasoning regarding the rejection of the condemnation in costs in the following terms. FIRST GROUND OF APPEAL ON THE CIVIL MATTER. Absence of reasoning regarding the rejection of the condemnation in costs. What is prescribed in numerals 39 and 41 of the Political Constitution, 363 and 369 of the Code of Criminal Procedure is injured. [He] raises a second ground, which has to do with the fact that his represented parties have had to endure a seven-year process, with civil lawsuits and seizure of assets. Thus, it is not that there were no vanquished nor victors, but rather, on the contrary, there are persons who have had to endure the condition of defendants for a long period of time. It is for this reason that he demands that the behavior of the civil plaintiffs should have had consequences. [He] rejects that one can speak of a plausible reason to litigate, if the causal nexus between the accused acts and those civil lawsuits could never be established. It was proven that his represented parties did not receive money from ICE or any other public institution. It was a matter of private money. It is for this reason that he requests the civil plaintiffs: Instituto Costarricense de Electricidad and the State be ordered to pay the costs of the process that brought the civil defendants to this stage, including the appeal. In a third ground, [he] claims erroneous interpretation of numeral 277 of the Code of Civil Procedure, regarding the indemnification of damages and losses. [He] postulates his reasons in the following manner:

“…It is the criterion of this representation that the interpretation the Tribunal of judgment makes of numeral 277 of the Code of Civil Procedure is erroneous, and the jurisprudential citation on which it supports its thesis is undoubtedly inadequate.

The judgment argues in essence that, for having omitted a ruling on the merits regarding the civil actions, the lifting of the decreed seizures and the rejection of the condemnation in damages and losses are applicable. Considering in this regard the possibility of the parties to resort to the civil jurisdiction to resolve their conflicts. It being impossible to extend the scope of cited numeral 277 via interpretation, given that it would be an extensive application of a punitive norm.

In the first place, the Tribunal's decision to grant the plaintiffs the possibility of resorting to the ordinary jurisdiction, we suppose, in pursuit of their interests, is unfortunate. That decision is admissible insofar as the plaintiff party has not endured all that the civil process within the criminal process entailed. The procedural principle of 'choice of venue' is ignored by the sentencing Tribunal. The plaintiffs decided to choose the venue of the civil action within the criminal process in pursuit of their interests. So much so, that there are even cassation appeals pending from the civil plaintiffs. That the Tribunal dismissed their lawsuits for defects in the CLAIMS, cannot be the basis for referring the parties to a later civil claim. The plaintiffs exhausted the venue of the criminal process for the probable indemnification; that they did not know how to do it, does not give them the right to remain legitimized to do so in the ordinary civil venue. That interpretation made by the Tribunal truly injures numeral 2 of the Code of Criminal Procedure. The Judge knows the law, and under that position, it is evident that the Tribunal is benefiting one of the parties to the process, erroneously, due to a poor action on their part…” [He] insists, the lawsuit was DEFINITIVELY DISMISSED IN JUDGMENT, and it is for this reason that the lifting of the seizures was ordered and, in such case, the consignment of cash money to the defendants as damages and losses, as fixed indemnification, would be applicable: that is the content of the norm in question and its spirit. [He] emphasizes that his represented parties have endured seven years of process, seizures included. A tortuous process that had to wait until the end to know, in conclusions, the claims of the civil plaintiffs, against legal and natural persons that had nothing to do with public funds. Nor could the causal nexus between the civil defendants and the actions of the convicted persons be established. [He] also questions that the door is opened for the civil plaintiffs to resort to the civil venue to file their lawsuits again, despite the fact that they had already chosen a venue to discuss said points. The civil lawsuit was rejected, except for what this chamber resolves when analyzing the cassation grounds raised by the civil plaintiffs. For the foregoing, [he] requests that the appeal be granted for the reasons stated, that the judgment be revoked insofar as it REJECTS the fixed indemnification as damages and losses regulated by numeral 277 of the Code of Civil Procedure, and that the return be ordered to the Criminal Trial Tribunal so that it makes the disbursements to the civil defendants in the proportion that corresponds to them according to the lawsuits filed. The issue of the condemnation in costs and the issue of the civil actions must be elucidated in a new trial in this regard. This Chamber has already ruled on the issue of compensatory civil actions, the absence of condemnation in costs, and the interpretation made by the majority tribunal regarding this issue, when resolving the appeal of Christian Arguedas in favor of Dr. [Name012]. It was considered that what was resolved on the matter was a clear denial of access to justice based on formalities that have no basis in Article 112 subsection d) of the Code of Criminal Procedure, an error that must be corrected. Also to be corrected is the lack of resolution on the merits of the civil actions brought by the Instituto Costarricense de Electricidad and the Procuraduría General de la República. Likewise, in a new trial, a decision must be made on the issue of costs, and on whether or not there was a plausible reason to litigate: not deciding on the merits of the civil actions caused an error that affects the definition of the issue of costs, which undoubtedly causes grievance to the parties. It is for this reason, that when resolving on the appeal of attorney Arguedas, it was considered that the effects of his challenge favor the other civil co-defendants, since it is not based on exclusively personal reasons. It is for this reason that the judgment has already been annulled in its civil aspect, insofar as it ordered to omit a ruling regarding the substantive right discussed in relation to the civil actions filed, as well as what was resolved on costs, and the case is ordered back to the competent court for the new substantiation of those points.

XI.- THE APPEAL FILED BY ATTORNEYS ERICK RAMOS AND FEDERICO MORALES IN FAVOR OF THE ACCUSED [Name015] IS RESOLVED.- 1. Regarding the four crimes of Corruptor Penalty: Of the issues proposed by attorneys Erick Ramos and Federico Morales, representing Mr. [Name015], their disagreement with the judgment has been expressed through various writings, the first of which is a 'cassation' appeal that was filed and subsequently in an appeal by conversion. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the justiciable of four crimes of CORRUPTOR PENALTY, committed to the detriment of Probity in the Exercise of Public Function. First Section.- Defects that by themselves imply the nullity of everything resolved. A. Prescription of the cause. In the first ground based on form of the appeal, attorneys Erick Ramos and Federico Morales allege violation of due process because the cause has prescribed. They indicate that in various instances the exception of prescription was raised, and it was rejected. The reason given by the Trial Court to dismiss the prescription was based on the declaration of complex processing of the cause that occurred on March 3, 2006, the judges considering that by virtue of this, the reduction of the prescription term could not apply, based on the provisions of the third paragraph of Article 376 of procedural legislation.

As set forth by the defense, procedural acts are governed by the law in force at the time they occur and take effect according to that law. Article 376 of the CPP would not be giving any possibility to the declaration of complex processing to make its effects retroactive, nor to interrupt the statute of limitations. Thus, the statute of limitations for the acts attributed to [Nombre080] would have run on the 14th day of the month of April 2007; without any of the interrupting acts established by the criminal procedural law having occurred by that time.

They request that this Cassation Appeal be granted based on this ground and that it be declared that the criminal action was extinguished by the statute of limitations on the 14th day of April 2007. They are correct in their claim. The defense attorneys argue that the statute of limitations for the case should have been declared from the moment the issue was raised in the proceedings, as the fatal term that extinguishes the criminal action had elapsed. Although in principle it is clear that the public criminal action was extinguished in the sub judice case in favor of [Nombre015] and as a consequence of its statute of limitations, the sentencing Tribunal reasoned in a timely manner and based on the provisions of Article 376 of the Code of Criminal Procedure, which broadly establishes that when the processing of the case is ordered as complex in the investigation and intermediate stages, the reduction of the statute of limitations term by half does not apply, according to the provisions of Article 33 of the Code of Criminal Procedure, in the sense that in this specific case, the declaration of complex processing of the case prevented a favorable resolution of the claim regarding the extinction of the criminal action. The appellants' main argument is that the declaration of complex processing of the case does not modify the reducing effects of the statute of limitations period that had already operated at the time in favor of Mr. [Nombre015] in the year 2004. It is evident from the case record, the challengers maintain, that [Nombre015] was investigated for the acts subject to this proceeding at 2:30 p.m. on the 14th day of October 2004. Therefore, the expiration period for the criminal action would expire on April 14, 2007, given that the next act that, according to the strict application of the law, suspends the statute of limitations is the scheduling of the Preliminary Hearing; which in this case was not ordered until September 10, 2007.

According to this starting point, with the investigatory statement of the accused, the statute of limitations period would have been reduced by half, as ordered by the Code of Criminal Procedure. The declaration of complex processing of the proceeding could not, then, come to affect what had already been produced in accordance with the general rules imposed by the procedural legislation. They cite in their favor the doctrine of Prof. Javier Llobet in his work “Código Procesal Penal Comentado,” who maintains that if the reduction of the statute of limitations period by half has already operated, it should govern for the rest of the proceeding, and it should not later be said that such reduction has not operated, as it would be a kind of “manipulation” of the statute of limitations period, with the retroactive application of the complexity declaration. This Chamber had already ruled against the retroactive effects that have been given to the declaration of complex processing of the case. The reasoning supporting this conclusion has already been expressed when resolving the appeal of Dr. [Nombre012], to which it refers to avoid unnecessary reiterations. It is appropriate, then, to declare the case followed against [Nombre015] time-barred and to acquit him of four crimes of corruptor's penalty that were attributed to him.

B. Unusable (Illicit) Evidence. The Tribunal used information obtained from the statement of the co-defendant [Nombre026], who provided that information for the conviction under the protection of an undue procedural advantage. In the second ground of the appeal by [Nombre015]'s defense, the non-observance and erroneous application of procedural law is alleged, since illicit evidence has been used to convict their client. They consider that the information from [Nombre026] was generated from an agreement with the Public Prosecutor's Office that was constructed contrary to due process, as the opportunity criterion that favored him was accepted while disrespecting procedural regulations. Passages from the judgment are cited where it becomes evident that the information provided by [Nombre026] was effective in sustaining the conviction:

“… in any case, here [Nombre009] was indeed present from its planning because it had to be known prior to the corrupt promises how the gifts would be paid, and that was his task. Remember that [Nombre026] mentioned that on one of the occasions when he asked him about Servicios Notariales QC S.A., [Nombre015] told him that that was the way they had devised for everyone to be protected; that is, denoting that prior to the launch of the plan, the formula to achieve that protection was already known.” (p. 1157) “Given this scenario, one must ask: If the equipment had been donated by Alcatel since 1998 and this meant that by 1999 and 2000 it was already functioning, why was it not authorized to participate in the direct procurements where Lucent and Ericsson were suppliers? Why, if that equipment was in operation, had Alcatel's participation in the last procurement of 100,000 cellular lines not been authorized? Why, if it was argued that genuine equipment, compatible with the ICE cellular system, was required, among other reasons, to exclude Alcatel as an offeror, was it now considered as a direct awardee for having genuine equipment, without substitutes, etc.? Why did it now have legal and technical backing? What motivated the board of directors now to vary the position it had maintained for years? The only plausible answer this panel finds is because regarding directors [Nombre004] and [Nombre026], the remunerative promise had already been made; the latter indicated so, and the former not only previously intervened in the cited sessions where Alcatel's participation was denied but also in this session 5271 expressly manifests support for the procurement and justifies his statement with notes signed by [Nombre061] and the Legal Advisory Office.” (1164) “[Nombre026]'s statement is totally consistent with the evidence presented, and it is relevant here (although this reference has been sporadic for the assessments made in this Considerando) to point out how, at the time the illegal remunerative proposal was made to him by [Nombre035] and [Nombre015] (at the beginning of December 2001), three requests were made in exchange for the gift: his help for the technological migration, the public tender, and the award in the event said tender occurred. The various technical defenses of the accused, including Atty. Valenciano, Atty. Navarro, Atty. Gairaud, Atty. Ramos, Atty. Morales, and Atty. Villalobos, affirm that such statements by [Nombre026] are implausible because the technology migration occurred in May 2000, although Atty. Navarro asserts that it dates back to 1998—without elaborating on explanations—and Atty. Ramos goes further back in time. The truth is that—fundamentally—they coincide in pointing out that if the described decision was prior to the promise, it made no logical sense for the offer to have that purpose as its basis.

However, [Nombre026]'s assertions have been fully ratified by this tribunal based on the evidence to be specified.” (1167) “That is why it is very revealing that when there is a threat to question that agreement, [Nombre015] conveys his concern to the board and asks [Nombre026] that, when they want to back out of the tender, he must attend session 5277. That is, [Nombre015] not only knew in advance that the agreement was going to be questioned (evidence No. 630, “CD-ICE letter,” of March 8, 2001), but he also requests [Nombre026]'s intervention to prevent it, as the latter stated, and his participation is corroborated in the minutes of the respective session where [Nombre026] speaks in favor of maintaining the proposal, and where, in fact, [Nombre026], [Nombre052], [Nombre066], and [Nombre004] vote in favor of maintaining the procurement, while [Nombre027] is supported by [Nombre067] and [Nombre055], meaning the decision is made by a narrow majority. This letter of March 8, 2001, also reflects that at that moment, Alcatel's situation within ICE continued to be complex. [Nombre026] declares that he did not attend the first session of the board of directors, but that he had already met with [Nombre015] and [Nombre035] by that time, which is why he speaks in favor of direct purchase, because it was part of the commitment assumed to migrate, and indeed it is corroborated that he does so in session 5277.” (1172) “- Before receiving the money, the accused [Nombre015] communicated that situation, so that logic determines that there was prior and fluid communication between [Nombre015] and [Nombre009] to coordinate the relevant matters, to the extent that, effectively, the transfer of funds subsequently occurred, which happened in a similar manner on repeated occasions, as [Nombre026] narrated. In line with what was related by [Nombre026] regarding said practice of [Nombre015], the deponent [Nombre081] explained that…” (1185) “Regarding the intervention of [Nombre035] and [Nombre015], note that [Nombre026] himself pointed out that on all seven occasions when funds were transferred or certificates delivered to him, [Nombre015] asked him about the circumstances for their delivery, and in cases where it was by transfer and he provided the account number, it indeed arrived there, which reveals that [Nombre015] communicated such information to [Nombre009] as the person in charge of said account. [Nombre026] also stated that when he asked [Nombre015] who SNQC S.A. was, he replied that it was the system they had devised so that everyone would be protected, that is, denoting planned and joint participation.” (1258) Furthermore, the appellants insist in their brief, there is an express “Considerando” in the judgment (cfr. Considerando XI, point A.) where the judges justify the use of the information introduced by [Nombre026]. They accompany their argument with a description of circumstances and procedural moments that prove their assertion:

“…Description of Procedural Actions FIRST: On January 31, 2006, the person who appeared as a collaborating co-defendant during the trial, Mr. [Nombre026], his trusted defense attorney EWALD ACUÑA BLANCO, the assistant prosecutors CRISS GONZÁLEZ UGALDE and CARLOS MORALES CHINCHILLA, as well as the Deputy Prosecutor WARNER MOLINA RUÍZ, signed an agreement for the application of an opportunity criterion, according to the provision of Article 22, subsection b) of the Code of Criminal Procedure (as evidenced in exhibit 776, legitimately incorporated in due course into the Trial). In the same vein, see what is recorded in the challenged judgment at page 1653.

SECOND: In correspondence with said agreement, the Public Prosecutor's Office committed to requesting in favor of the collaborating accused [Nombre026] that his prosecution be totally dispensed with in case 04-006835-647-PE. The foregoing was conditional on the collaborating accused [Nombre026] rendering at trial—as indeed occurred—a statement similar to that previously given before the Public Prosecutor's Office and which constitutes the ANNEX of the mentioned opportunity criterion. Likewise, that said statement not be contradicted by other evidentiary elements that make it appear false. And the prosecutorial action was also conditional on the information provided by [Nombre026] allowing the participation—among others—of the accused in this same case, [Nombre015], [Nombre035], [Nombre012], and [Nombre018], to be proven at trial.

THIRD: For the materialization of the referred agreement, the Public Prosecutor's Office, represented in that act by Prosecutors Marcela Morera Molina and Amelia Robinson Molina, filed a motion on May 30, 2007, before the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José, for the application of an opportunity criterion for collaboration. In said motion (which we understand is also part of exhibit 776), the Prosecutor's Office includes in the section called Relation of Facts, following the enumeration from 1 to 116, a series of facts and actions that supposedly constitute the object of the investigation. We affirm the foregoing because on page 1 of the referred motion, the Prosecutor's Office records: “As a result of this investigation, the facts described below are considered established.” From which it follows that those are the facts being investigated in case 04-6835-647-PE.

FOURTH: Similarly, also recorded in the Dossier for the Application of the Opportunity Criterion is the motion dated February 1, 2006, in which Attorney Warner Molina Ruiz, in his capacity as Deputy Prosecutor, authorizes the application of the opportunity criterion according to subsection b) of Article 22 of the Code of Criminal Procedure in favor of the accused [Nombre026]. In said document, the Deputy Prosecutor makes a synthetic reference to the facts under investigation in said case (specifically on pages 2 and 3—pages 33 and 34 of the Dossier—and on page 8—39 of the Dossier) FIFTH: The referred actions led to the issuance of the resolution at 9:51 a.m. on June 1, 2007, signed by Attorney Ana Gabriela Sánchez Arroyo, in her capacity as Criminal Judge of the Second Judicial Circuit of San José. Said resolution refers to the general identification data of the case and, subsequently, establishes in a Considerando I, called Relation of Facts, exactly the same as what the Prosecutor's Office describes in the section with the same name, from point 1) to point 116). In Considerando II, it is indicated that the action promoted by Prosecutors Marcela Morera Molina and Amelia Robinson Molina has the approval of the Deputy Prosecutor. Subsequently, a Considerando III called On the Merits is included, in which the Judge points out the nature of the requested opportunity criterion and examines the legal requirements for its admissibility. As the resolution practically completely lacks proper reasoning, it suffices to point out that it refers, as facts or conducts assessed and evaluated for the determination of greater reprehensibility, to the conduct of [Nombre026] and the conduct of [Nombre012]. Additionally, the jurisdictional decision makes reference to the facts investigated in this case in relation to [Nombre015], [Nombre035], [Nombre018], and [Nombre012], which are clearly linked to the procurement of the 400 thousand lines of cellular telephony that was widely discussed in the oral and public trial that preceded the issuance of the Judgment now being challenged…”. According to the challengers' thesis, the information that the jurisdictional authority must receive must be complete, especially regarding the matters under investigation, so that it can effectively exercise its oversight over the Public Prosecutor's Office's activity. This last point, especially, in weighing the lesser reprehensibility of the effective collaborator. Such weighing of “lesser reprehensibility,” suggest the defenders, has been chosen to be carried out by comparing the charged conducts. According to this, the factual framework provided by the prosecutorial representation to Attorney Ana Gabriela Sánchez Arroyo in the motion dated May 30, 2007, by means of which it requested the application of the opportunity criterion for collaboration in favor of the collaborating accused [Nombre026], did not completely correspond to what was actually being investigated at that time. Therefore, [Nombre026]'s conduct could not be assessed with all the information available in the Prosecutor's Office. Consequently, the conduct of the collaborator that could be evaluated by the jurisdictional authority based on the information arising from the relation of facts provided by the Prosecutor's Office is not the same conduct that could be determined based on all the information truly available at that moment as a result of the investigation in the hands of the Prosecutor's Office. There was information from [Nombre026] regarding his involvement in other acts and contracts of ICE related to the issue of telephone lines and the receipt of improper payments for acts inherent to his duties as a public official.

The appellants report the following: “…Indeed, at that moment of the investigation, several statements given by the co-defendant [Nombre026] had already been added to the respective dossier, as well as several expert reports from the Economic and Financial Crimes Section of the Judicial Investigation Department; among others, Report 297-DEF-540-04/05 in which, at the point identified as 4.8 point 12., the following is established:

| --- | --- | | “Lastly, reference was made to check No. 49-1 for U.S. $46,000.00, drawn by Holding de Valores y Capitales, S. A., on May 26, 2003, payable to Mrs. [Nombre082], which he said he had received from [Nombre018], supposedly, for collection efforts made with ALCATEL, at the request of both the latter and [Nombre012]." | | "At this point, it is worth commenting that in other of his 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. Likewise, he mentioned other gifts of 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 mentioned report states in point 5.11 that, although [Nombre026] maintained that the premium he would receive would range between 1.5% and 2% of the total contract for the 400,000 cell lines, minus expenses, the expert report concludes that part of the sums transferred by Servicios Notariales Q.C., S. A., to [Nombre026] was also related to other contracts signed by ICE for the purchase of ALCATEL fixed-line switchboards.

It is important to highlight—continuing with this same line of exposition—that [Nombre026] would have declared in September 2004 that he received improper payments for his participation as an ICE Director in the approval of the La Joya Hydroelectric Project concession. Also in October 2004, [Nombre026] confessed before the Prosecutor's Office to having received monies or improper payments in relation to the companies Teletec and Empaques Asépticos. In November 2004, he also declared about the receipt of certain improper monies. Likewise, in May 2005, he stated having received monies from Holding y Valores corresponding to payments for improper acts associated with the exercise of the public official position.

It is clear, then, that by the date the Prosecutor's Office filed its motion before the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José, for the application of the opportunity criterion for collaboration in favor of [Nombre026], the representation of the Public Prosecutor's Office had sufficient information allowing it to fully know about the possible participation of the collaborating accused [Nombre026] in other criminal acts different from those linked to the contract for the 400,000 cell lines.

However, this information, referring to facts different from those directly linked to the contract for the 400,000 lines, was hidden from the Judge. This assertion finds support in the reading of the relation of facts contained in the request promoted by the Prosecutor's Office for the approval of the opportunity criterion negotiated with [Nombre026], as well as in the very relation of facts contained in the resolution issued on June 1, 2007, approving the mentioned institute. We consider it legitimate to affirm that the other mentioned facts in which [Nombre026] participates, different from those related to the mentioned ICE contract, were not informed as was appropriate to the jurisdictional authority…” Moreover, during the trial itself, and with information that was made public to the press media, the challengers could realize that the object of the agreement between the Public Prosecutor's Office and the co-defendant [Nombre026] was for facts other than the award contract for the 400,000 cell lines to the Company ALCATEL. In support of what is affirmed, they cite the words expressed by Prosecutor Maribel Bustillo in the motion dated July 25, 2008, which, together with the resolution at 1:40 p.m. on May 18, 2009, appear added to case 08-000032-615-PE, which they request ad effectum videndi, who stated:

| --- | | “In the agreement in question, it can be observed that the Public Prosecutor's Office, in the exercise of its conferred powers, commits to requesting in favor of [Nombre026] that the criminal prosecution be dispensed with, not only for the act referring to the money improperly received from the company Alcatel on the occasion of the procurement by the Instituto Costarricense de Electricidad of the four hundred thousand mobile lines of GSM technology, but of the entirety of the criminal prosecution for case No. 04-006835-647-PE, which encompasses this and the other facts that the complainant mentions, since all form part of the investigation with the single number indicated. This is especially true given that the accused was investigated for all those facts and well before the application of this agreement, on September 30, 2004.” | The appellants insist that from this document it follows that the object of the negotiation between the Public Prosecutor's Office and [Nombre026] was the dispensation from exercising the criminal action in relation to ALL the facts known and investigated by the Prosecutor's Office at the time of that negotiation, that is, as of January 31, 2004. However, when jurisdictional authorization is requested for the application of the opportunity criterion, information about the facts under investigation in case number 04-6835-647-PE is omitted.

Attorneys Ramos and Morales underline that, therefore, the prosecutorial action included other additional facts beyond those described in the relation of facts originally provided by the prosecutorial representation. This action would be contrary to constitutional and legal requirements, as it should have informed the judicial body about which facts it was truly reaching an agreement on with the accused [Nombre026]. Thus, the incomplete information would cause a defective procedural activity that was the basis for approving the opportunity criterion that favored this accused, and which was contrary to what was expressly indicated by Article 96 of the Code of Criminal Procedure. In the same way, the jurisdictional decision contained in the resolution at 1:30 p.m. on September 2, 2010, issued interlocutorily during the Trial that resulted in the Judgment being challenged, which legitimized, by majority decision, the introduction of the accused [Nombre026]'s testimony into the trial, would also be untenable. They transcribe a section of the judgment where the introduction of this co-defendant's testimony is justified:

| --- | | “The agreement has been questioned by the technical defenses of the accused because it allows impunity for [Nombre026] for other crimes committed; however, in the agreement literally described, it is expressed that the Public Prosecutor's Office commits to requesting in favor of the accused [Nombre026]: 'that the criminal prosecution be totally dispensed with in the case indicated above,' and in the heading of the document, it mentions 'Illicit Enrichment and others,' evidence Nº 776. In the request for the application of the opportunity criterion, a relation of facts regarding the award of the 400,000 cell lines to the company Alcatel is included, and on page 28, it appears that the legal classification given to the described facts is a crime of active bribery and a crime of aggravated corruption for passive bribery against [Nombre026]. In the criminal judge's resolution at 9:51 a.m. on June 1, 2007, authorizing the application of the opportunity criterion, after transcribing the described relation of facts and other assessments, it is indicated that it is for the crime of Illicit Enrichment to the detriment of the Instituto Costarricense de Electricidad. However, regardless of the stated legal denominations, what is really of interest for the purposes of the final decision on that action by the competent jurisdictional body, according to Article 23, second paragraph, of the Code of Criminal Procedure, is the factual basis contained in the request and the resolution. | | Hence, the technical defenses of the accused are not correct when they argue that the Prosecutor's Office deceived the criminal judge by favoring [Nombre026] with impunity for crimes not included in the action. The issue of other alleged crimes attributed to [Nombre026] is completely alien to this tribunal because, besides the principle of innocence assisting him regarding them—as with any other person suspected of committing a crime—this proceeding is not to judge [Nombre026], nor to assess other possible illicit conduct attributed to him. In this case, the only thing of interest is [Nombre026]'s intervention in facts related to each of the accused regarding whom his collaboration pertains and who are accused in this proceeding. In any case, how could the Public Prosecutor's Office deceive the criminal judge if the crimes for which it processes the opportunity criterion are those related to the facts in the request? If Article 23, second paragraph, of the Code of Criminal Procedure states that the dispensation from prosecution must be assessed by the criminal court 'in relation to the facts or persons in whose favor the opportunity criterion was applied,' how could other criminal acts be understood? Attorney Gairaud also objects to the opportunity criterion, arguing that the criminal action for crimes not included in such action would have reached the statute of limitations, and, although this reasoning is contradictory or confusing with respect to the one previously held, in any case, it is reiterated that in this proceeding, the only thing of interest is the evidentiary contribution of [Nombre026] in the trial of the accused [Nombre012], [Nombre015], and [Nombre018]. | | [Nombre026] has also maintained that from his first statement, he was willing for his bank accounts, his cards, and telephone calls to be investigated, and he offered what was within his reach for the investigation, his wife and his mother showing a similar attitude, noting that on page 434 of Volume II, his authorization dated October 5, 2004, appears for copies of all documents related to his checking accounts to be delivered to the Prosecutor's Office representatives, Mrs. [Nombre082] proceeding in a similar manner, as recorded on page 432 of Volume II.” | Likewise, as of October 12, 2004, he proceeds to deliver certificate No. [Valor051] for the sum of $1,401,241.36, as inferred from the documents on folios 462 to 465..." ...rigorous examination of the content of his version and the eventual incidence of the indicated circumstances Although the particular and rigorous examination of the statements of [Nombre026] will be made on each occasion that his version is used as evidentiary support, it is worth noting in advance that the recount of circumstances previously made allows us to establish that:

• i)The first declaration of [Nombre026] occurs on September 30, 2004, folios 127 to 136, Volume I, and by October 5, 2004 (folio 434), the collaborating defendant was already authorizing the opening of his checking accounts and the obtaining of bank documentation, making evident his purpose of collaborating with the Administration of Justice.
• ii)On October 12, 2004, [Nombre026] shows signs of his intention to compensate part of the damage caused when he proceeds to deliver to the Criminal Court of this Judicial Circuit certificate No. [Valor051] for the sum of $1,401,241.36.
• iii)On May 9, 2005, 8 months after the case was initiated, [Nombre026] agrees with the Public Prosecutor's Office to the application of an abbreviated procedure (procedimiento abreviado), committing to accept his responsibility for the facts, serve a sentence of 4 years of imprisonment without any benefit, and render his declaration at trial, as well as the payment of the sums indicated to the Office of the Attorney General (Procuraduría General de la República) and the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad, ICE), and the delivery of two cars. And contrary to what was stated by the defense of [Nombre012], it is noted that at that time, the conditions were not met for [Nombre026] to be entitled to the benefit of Article 55 of the Criminal Code (Código Penal), aside from the fact that such a possibility was also not negotiated with the Public Prosecutor's Office, nor is an authorization of that nature within the scope of its powers. Furthermore, by the quantum of the penalty, in accordance with Article 59 of the Criminal Code, [Nombre026] would indeed have had to serve said sentence as the benefit of conditional execution of the sentence would not apply. And finally, if the agreement for the signing of the abbreviated procedure implied the imposition of the described penalty and to appear at trial to render his declaration, hypothetically assuming that said procedure had been authorized by the competent court, what would have motivated [Nombre026] to appear at trial to render his declaration if he had to serve the 4-year prison sentence? That is, if his purpose in coming to trial, according to the defense, has been to remain unpunished, why at that first moment did [Nombre026] accept this same condition in exchange for serving a 4-year prison sentence? The described argument definitively lacks all logic.
• iv)The cited abbreviated procedure could not be finalized due to the refusal of the complainants [Nombre083] and [Nombre084], who not only generated suspicion in the appellate judge regarding their legitimate interest to pursue a criminal complaint, but also to pursue a complaint against one of the declarants regarding the criminal action of [Nombre012], the latter having granted authorization to [Nombre083] to be present at a private hearing where he appeared, as well as on record being the visits of [Nombre083] during the house arrest of [Nombre012]. A situation that, aside from generating suspicions about the true grounds for the exercise of the criminal action by [Nombre083] and [Nombre084], given the connection of the former with the accused [Nombre012], in any case and -more importantly here- the truth is that, paradoxically, it was by virtue of the refusal of such complainants to agree to and finalize the abbreviated procedure that, finally, [Nombre026] was legally unable to accept the charges and become entitled to the prison sentence of 4 years that he had agreed to with the Prosecutor's Office. Hence the fallacy of the argument of the technical defenses of the defendants, that [Nombre026] was benefited by the Prosecutor's Office with the opportunity criterion (criterio de oportunidad) so that, in exchange for his impunity, he would "sink" the accused, since if he remained unpunished, understanding this as the lack of criminal sanction, it was due to the actions carried out by those close to [Nombre012]. That is, if the acts for which [Nombre026] has admitted responsibility remain unpunished, it is because of the refusal of [Nombre083] and [Nombre084] to admit the application of the abbreviated procedure, not because the Prosecutor's Office, all of a sudden, "blackmailed" [Nombre026] with the opportunity criterion for him to appear to testify at this trial, aside from the fact that he had already accepted this condition without being offered the indicated legal institution. There is another aspect that deserves to be addressed, and that is the suggested favoritism that the Public Prosecutor's Office showed regarding [Nombre026], observing that other defendants in this case were subjected to similar procedures and specifically the former director of the I.C.E. [Nombre027] and [Nombre064], in charge of Intelmar S.A., agreed with the Prosecutor's Office on the imposition of 3-year prison sentences, granting each the benefit of conditional execution. Consequently, what preferential treatment exists when, had the abbreviated procedure been accepted, [Nombre026] would have received a 4-year prison sentence without conditional execution? Furthermore, the minority opinion questions that [Nombre026] had been allowed an economic profit of 2 and a half million dollars supposedly coming from bribes received and that he kept one million dollars, all in exchange for his declaration, without this majority integration understanding from what evidentiary element or inference allows the minority position to make that assertion. But, setting that aside, what the evidentiary body does reveal is that with an abbreviated procedure, or without an abbreviated procedure, with an opportunity criterion, or without an opportunity criterion, as of October 12, 2004, [Nombre026] delivered to the Criminal Court of this Judicial Circuit certificate No. [Valor051] for the sum of $1,401,241.36. The rules of logic indicate to this court that if [Nombre026] wanted to keep some money in exchange for his impunity, he would not have delivered the described sum when he had not even negotiated that possibility; and that if the Public Prosecutor's Office -according to the insinuated dynamic- wanted to compensate him with the sum he did not deliver in exchange for his testimony, then it would have also wanted to "compensate" him when, for that same sum, it agreed with him on the application of the abbreviated procedure and the imposition of a 4-year prison sentence. And then one would also have to affirm that the Public Prosecutor's Office wanted to "compensate" [Nombre064] when he only returned $100,000, even though it was proven that he received more than $1,000,000; but surely the Public Prosecutor's Office did not want to "compensate" [Nombre027] when it negotiated with him the abbreviated procedure and the return of more than $1,000,000. On the contrary, all of the above reflects that the representation of the Prosecutor's Office did not subject the negotiation with the described defendants, nor with the collaborator, to the exact return of the amount from which they benefited.
• v)The agreement between [Nombre026] and the representatives of the Public Prosecutor's Office for the application of the opportunity criterion occurs on January 31, 2006, and through its signature, one year and several months after the start of this criminal process, again (because he had already assumed a similar commitment with the abbreviated procedure) [Nombre026] obligates himself to appear at trial to testify.

It is for all of the above that, in summary, it can be affirmed that it was not as a consequence of the opportunity criterion, nor in exchange for his impunity, that [Nombre026] appeared at this trial to render his declaration; and that when [Nombre026] is asked why he accepts to appear to render his declaration and he responds that he wants to publicly assume responsibility for his actions, this court considers that his statements are completely credible and disinterested because it was not under the protection of the opportunity criterion that he conceived such an initiative, but rather this occurred many months before the granting of that mechanism, and, even, when he first exhausted another more burdensome possibility for himself.

It has already been said that the specific assessment of the assertions of [Nombre026] will be made in the instances where said contribution occurs; however, because the technical defenses of [Nombre001], [Nombre004], [Nombre012], [Nombre015] and [Nombre018] object to his credibility with reference to common and general aspects, it is worth referring to them. They allege that the fact that [Nombre026] abstained from answering questions formulated by the lawyers of the accused [Nombre012], [Nombre015] and [Nombre021], detracts from the credibility of his account. However, in the consideration of this court, the cited behavior of [Nombre026] does not affect the credibility granted to his narration because, in those instances where he omitted to answer the questions, he did so for various reasons but with a single basis, whether because he was interrogated about self-incriminating facts for which he had the right to abstain, or because he was asked about facts unrelated to the accused. In either case, such conduct derived from the warning made by the court before he rendered his declaration at the first hearing on September 8, 2010. Both at that moment and through a ruling at 1:30 p.m. on September 2, 2010, it was stated:

"...the decision of this body is maintained for [Nombre026], in his capacity as a collaborating defendant, to appear to render a declaration, who will be informed: i) of his rights not to testify against himself and to abstain from rendering a declaration on the facts, without his silence affecting him; ii) of his right to have the assistance of a lawyer of his choice and to communicate freely and privately with him; and iii) in the event that he chooses to testify, he will be warned that everything he says could eventually be used against him, as well as his right to express what he considers convenient and is related to the accused facts, with the parties and the court being able to ask him questions without thematic limitations, except for form, relevance and usefulness, and with it being his decision to answer them." (the bold text is supplied) The referred warning, for what is relevant here, was made by the court based on numeral 326 in relation to the principle of correlation (principio de correlación) provided for in Article 365, both of the Criminal Procedure Code (Código Procesal Penal). The first establishes that the trial, aside from being the essential phase of the process, is carried out on the basis of the accusation, which -in accordance with the indicated principle- determines the content of the judgment. In other words, because the court was legally prevented from hearing illegal acts other than those accused, it was expressly indicated to him that, if he chose to testify, he would have the right to express what he considered convenient provided it was related to these. So his refusal to refer to circumstances not contained in the accusation and which were eventually self-incriminating in no way undermines his credibility.

Consequently, it could also not be argued that a collision of defense rights of the collaborating defendant and of the accused occurs here, given that what prevails here is the delimitation of the debate and the evidentiary activity based on the accusation. There is no violation of the right of defense of the accused because it is not based on acts allegedly committed by a third party that they are held responsible, but on their own, on which they had ample opportunity to interrogate and obtain a response from the collaborator; aside from the fact that the protection of the right of abstention of [Nombre026] was not fundamental either when, in itself, regarding such events, this court would not have jurisdiction to convict him even if he acknowledged them or to acquit him if he denied them. They were simply factual situations that did not motivate his appearance at trial, which were not of interest in this process, however much they were of interest to the parties." (See Consideration XI, p.1654 to 1660) It is proposed, then, that the Trial Court decided to act in accordance with its criterion, not to declare the procedural activity defective (actividad procesal defectuosa) caused by the omission of the Public Prosecutor's Office, and to allow [Nombre026] to testify, considering it unnecessary to determine if the public criminal action that should have been exercised in relation to all the criminal acts committed and attributable to [Nombre026] was indeed illegitimately abandoned by the Prosecutor's Office based on the effects of the opportunity criterion improperly granted in the sub judice. The conviction of [Nombre015] essentially resulted from the information provided by this evidentiary element contrary to law (the declaration of [Nombre026]). They add, the minority opinion held by Judge Camacho Morales in the Judgment being challenged, would be an additional element that supports these arguments, summarizing the main aspects derived from the reasoning of the dissenting vote as follows:

“…1. Incomplete request formulated by the Prosecutor's Office for the Judge to approve the application of the opportunity criterion in the specific case and under the terms indicated by Article 22, subsection b) of the Criminal Procedure Code; 2. Jurisdictional ruling lacking due foundation that approves the application of the opportunity criterion and justifies the declaration at trial of [Nombre026]; 3. Declaration rendered at trial by the co-defendant [Nombre026] improperly protected by the promise of a procedural advantage that was legally impossible to uphold.

4. Use of information coming exclusively from illegal evidence to essentially ground the factual framework used to convict -among others- [Nombre015].

This representation considers that based on the above, it is necessary:

1. To grant this Appeal on Cassation (Recurso de Casación) based on this first ground for cassation; 2. To declare that the request for application of the opportunity criterion contained in the brief at folio 1 et seq. of the respective File (evidence 776) constitutes a defective procedural action; 3. To declare illegitimate, for being essentially sustained on defectively performed procedural acts, the ruling of 9:51 a.m. on June 1, 2007, issued by the Criminal Court of the Intermediate Stage (Juzgado Penal de la Etapa Intermedia) of the Second Judicial Circuit of San José, signed by Licenciada Ana Gabriela Sánchez Arroyo; 4. To determine the effects of such declarations and also rule that the resolution of 1:30 p.m. on September 2, 2010, issued by this Court is illegitimate, insofar as it ordered the production of the declaration of [Nombre026] at trial (which materialized in subsequent days), since it was essentially based on the assumption that the jurisdictional ruling mentioned in the preceding point was legitimate; 5. It must be declared that the information coming from the declaration rendered at trial by the collaborating co-defendant [Nombre026] did not form part of the usable material to ground the objected Judgment…” Based on the stated reasoning, they request that the judgment appealed through this ground for appeal (apelación) be annulled for being the product of a defective procedural activity, a measure that must be adopted immediately, the challengers estimate, to purge the process and eliminate the harmful effects coming from that illegal activity. They have a valid point in their claim, and the ground must be granted. This Chamber has expressed a series of arguments that support the thesis of the defense, when resolving the appeal filed by Dr. [Nombre012], not only from the point of view of the regulated opportunity criterion applied in the species, but also of the procedural and factual consequences implicit in the use of the declaration of a "collaborating defendant" (imputado colaborador), who in his declaration makes a calculation based on the procedural and punitive advantages that have been offered to him and the information he will provide to obtain them. Reference is made to this section of the resolution to avoid unnecessary reiterations. Nevertheless, it should be noted that abundant bibliographic material demonstrates the skepticism and reservation generated in national and international doctrine by the use of this type of testimony in the process, and the felt need for judges to critically analyze their deposition with the rules of correct human understanding, logic, and psychology, in essence, with suspicion, so that the information provided does not become the sole element for the conviction of a defendant. This Chamber also analyzed, in detail, that the dissenting vote of Judge Camacho broadly assessed the drawbacks of using his testimony, not only for the defects that had been observed due to the lack of effective jurisdictional control in the application of the legal institution resulting from the omission of information that has been alleged by the appellants and which had as its final consequence: the admission of the use of the opportunity criterion in favor of [Nombre026]. In essence, the details of what was declared by [Nombre026], and which have been included in facts number 84 to 94, involve not only [Nombre012] but also [Nombre015], not only for the conversation at the restaurant “[...]” where bribes were supposedly offered to [Nombre026] so that he would intervene in the decisions on the bidding for the four hundred thousand telephone lines, but also because [Nombre015] is placed in a suitable action to ensure that [Nombre026] became an effective piece in favor of the interests of the multinational Alcatel. Together with this, at folio 1157 of the judgment, what was mentioned by [Nombre026] about the supposed means by which the bribes would be paid is introduced, and that [Nombre015] had informed him that it would be done through Servicios Notariales QC S.A. as a means to be more protected. In the same way, the court's conviction about the way in which the point of view on GSM technology was changed is made to rest on the fact that both [Nombre026] and [Nombre004] had already received remunerative promises, just as expressed by [Nombre026] (folio 1164). The majority Court found, additionally, that everything stated by [Nombre026] was reliable and, furthermore, congruent with the evidence produced. Regarding what interests [Nombre015], the court understands that [Nombre035] and [Nombre015] ask [Nombre026] to help them achieve the technological migration, to achieve the public tender and that in it the award to Alcatel be achieved, if said public tender took place (folio 1167). Regarding this, the majority court considers that there is a logical succession of events: first, achieve the technological migration, then the public tender and, finally, the final award, which implied the total satisfaction of Alcatel's commercial interests. Therefore, it connects what was said by [Nombre026] with the undertakings of [Nombre015], especially given the latter's offer to ICE of a commercial proposal that involved the donation of equipment in 1998 and a direct purchase. The proposal was presented at session of the Board of Directors No. 5268 of February 2, 2001. The court even considers that [Nombre015] was not content with having "bought" two officials, as he already knew that the comptroller body was suspicious about approving the direct purchase of 160 thousand lines, due to the suspicion that interests other than those of the Administration were at play (folio 1168). And it is for this reason that the court supposes, theorizes, that Alcatel only had to apparently meet the requirements of the tender specifications to have a guarantee of success (folio 1168). However, and as already analyzed further back, in relation to the challenges in favor of [Nombre001], it is more than evident that the process that concluded with the award was pristine, and that only two competitors, for various reasons unrelated to Alcatel, ended up participating in the abbreviated procedure, with Ericsson being excluded for technical reasons and due to its offer. In fact, the assessments of various ICE bodies agreed that the technical offer that best met the required requirements was that of Alcatel, and they endorsed the award, as analyzed in detail by this Chamber. It is for this reason that it can be deduced from the argumentation of the majority vote that there was a hypothesis of conviction that had been built from the declaration of [Nombre026], and the details he gave about the remunerative offers received and the role he had to fulfill when participating in the sessions of the Board of Directors as a member thereof. But the truth is that the process towards migration was decided before such offers took place, and the path was not easy because the TDMA technological infrastructure made Costa Rica dependent on the providers of the aforementioned technology, an offer in which, of course, Alcatel was excluded, as its development base was GSM technology. However, neither the commercial offer nor the delivery of the 2000 GSM lines were definitive in convincing the Board of Directors of the convenience of following the path of opening, because those decisions were already being made based on technical criteria, and benchmarking studies and others of another nature. The entire process finally produced the interest of Don [Nombre052] and the Board of Directors of ICE to lean towards the direct purchase procedure. This Chamber has already considered that this path benefited Alcatel more by virtue of the fact that it would proportionally participate in the purchases of telephone lines that ICE would make. The abbreviated procedure, for its part, did not guarantee that security, not only due to the uncertainty of who its competitors would be, what the nature of the economic offers would be, and under what conditions the entire evaluation process of said offers would occur. Finally, the contract was awarded to Alcatel, but not by virtue of a rigged offer. Everything seems to indicate that the offer satisfactorily met the public interests and the growth possibilities that ICE had at those dates, given the pending demand and the forecast of the future evolution of the market. The technological change, moreover, was suited to the needs of the cellular market, which expected better value-added communication services, which the TDMA platform could not satisfy. All of this has already been analyzed on the occasion of analyzing the participation of [Nombre001] as coordinator of the commission in charge of this entire procedure, and where this Chamber placed special emphasis on the analysis of the bidding procedure. The defense of the accused, but especially Licenciado Erick Ramos, always insisted that it was illogical for the remunerative proposal, as [Nombre026] relates it, to have those objectives that the trial court maintains in its majority vote. Despite this, the female judges insist that the assertions of [Nombre026] were ratified by them, even when they collide, as has been demonstrated, with the reality of a procedure that experts have described as pristine. From folio 1172 to 1175, the judgment explores the kinship relationship that exists between [Nombre015] and [Nombre009], which, despite the requirements of Alcatel's code of ethics, occurs and facilitates the channel or flow of money to the corrupt officials who end up deciding the award process for the 400 thousand lines. The judgment places [Nombre015] using a "secure" mechanism for paying the bribes, which had supposedly already been explained to [Nombre026]. The causal connection, then, between [Nombre015] and Servicios Notariales Q.C. S.A. and the entire mechanism devised to pay the bribes, is sustained by an inference from the declaration of [Nombre026], however much the connections and payments through the bank investigation (also questioned) had their effect on the judicial conviction. In this regard, [Nombre026] explained that on each of the seven occasions on which funds were transferred to him, [Nombre015] communicated with him beforehand and asked him about the way in which payment would be made. [Nombre026] gave him account numbers and the funds flowed there. From this, the majority Court derives, in addition, the connection between [Nombre015] and [Nombre009] who made the payments from the accounts controlled by Servicios Notariales QC S.A. What was said by [Nombre026], about his role in the decisions of the abbreviated procedure and in the award of the "400K" project, turns out to be openly illogical, and does not align with the analysis of the decision-making process that demonstrates that ICE was already advancing towards technological opening, through legal channels and with the obstacles typical of the Public Administration for making decisions. However, the path was open before [Nombre026] received remunerative promises (according to his statement) to influence the procedure. The mendacity of the witness [Nombre026], and the well-founded suspicion that he acted selfishly to obtain benefits from his declaration, cannot be ignored by this Chamber, and it is appropriate to consider the use of his testimony another reason to grant the appeal of Licenciados Ramos y Morales, and to decree the nullity of the judgment under examination that found [Nombre015] guilty of four crimes of the penalty of the corrupter. It was not necessary, to strengthen this conviction of this Court of Appeals, to assess file 08-000032-615-PE, followed against Don Francisco Dall´Anesse Ruíz, regarding the issue that the agreement with the co-defendant [Nombre026] covered other diverse topics besides what was related to the contracting of the 400 thousand cellular lines, since, as already analyzed on the occasion of the appeal of Dr. [Nombre012], it has been possible to determine clearly that the concession of the opportunity criterion has flaws, which affect its direct use in this case. It is for the above that the ground is granted and it is appropriate to annul the judgment under examination, without ordering a remand (reenvío) as there are no other independent elements that contribute to the effective analysis of the criminal participation of the defendant in the acts attributed to him. Therefore, in application of the principle of procedural economy, it is appropriate to absolve him of all penalty and responsibility for said acts.

C. Spurious Evidence (Nullity of evidence no. 588). The defendants [Nombre001], [Nombre009], [Nombre015] and [Nombre021]. (Appeal visible at folios 17264 to 17278 of Volume XXXVI), allege in their brief, notarized by Licenciado José Miguel Villalobos Umaña, that Article 369, subsection j) has been violated as the judgment was issued in violation of due process, by substantially basing the convictions on evidence illegally obtained and illegally introduced into the debate and therefore subsection c) is also violated by illegally incorporating an evidentiary element into the process, thereby contravening the constitutional provisions referring to due process and the right of defense enshrined in constitutional numerals 39 and 41 and the doctrine that inspires Article 8 of the American Convention on Human Rights (Convención Americana de Derechos Humanos). They cite, additionally, Constitutional Chamber (Sala Constitucional) ruling No. 1739-92 of 11:45 a.m. on July 1, 1992, which, drafted by then-Magistrate Piza Escalante and by unanimous vote, determined the elements that comprise the concept of due process, among them the principle of legitimacy of the evidence (inciso g) sub-inciso b)). Along with this principle, they invoke the general right to legality, which converts mere legality violations into violations of due process, with the aim of achieving full guarantee and material effectiveness. They point out, furthermore, that Articles 180 to 184 of the procedural legislation contemplate this same consequence as deriving from the principle of constitutional legality of Article 11 of the Magna Carta (Constitución), which obliges public officials to respect legal norms in order to have the moral authority to judge and sanction those who infringe them.

But this requirement, they argue, would be meaningless if it were not also required that the evidentiary means be lawfully obtained, which entails, constitutionally, that not only must the means themselves have inherent value regarding their obtention, but also in the manner in which they are incorporated into the criminal process. It would be meaningless, then, to obtain evidence illicitly that is later legitimately introduced into the process, because in such a circumstance fundamental guarantees that judges are called to uphold would have already been violated. [Missing text] that evidentiary materials which were used for his conviction, with the objective of studying their illegitimate obtention and incorporation into the process. They begin with an analysis of evidence 588 containing the Panamanian banking information for the accounts of the company Marchwood Holding. According to the appellants, this evidence was obtained illegally, without a judicial order. Furthermore, it is a certified copy from a different judicial case file. The criterion set forth by the judges is oscillating, even holding that it is not within their sphere of competence to determine if the evidence was obtained illicitly, which is contradictory since almost from the beginning of this trial they had ruled on this matter, recognized that this evidence was obtained by a lifting of banking secrecy without a Judge's order, and even annulled evidentiary material brought to the debate through an identical procedure, by means of a unanimous resolution on that aspect and with the drafting of Judge García Aguilar at 8:00 a.m. on May 14, 2010. There, it indicates that this evidence coming from Panama is NULL: from Folio 34 to 70 of that resolution, the arguments are outlined as to why evidence coming from Panama consisting of banking evidence gathered without a judicial order cannot be permitted to be valid, and therefore the decision of the preliminary hearing Judge to exclude it is upheld. In any case, the appellants maintain, the judges had already expressed their criterion when saying that EVIDENCE 588 WAS GATHERED WITHOUT A JUDICIAL ORDER TO LIFT THE PRIVACY OF THE DATA. (See Folio 894, line 2 and following). In a second point, they refer to the Panamanian banking information that derives from evidence 588, which alludes, for the first time, to the company Servicios Notariales QC S.A. without there being any independent evidence in this regard. They begin their assessment from the point that evidence 588 is a certified copy of the Judicial Assistance containing the CAJA-FISCHEL Case, which was processed in a separate case file, and which was therefore reviewed to obtain information for this other case. Thus, they argue, Expert Report 428-DEF-443-05-05 from the Judicial Investigation Agency (Organismo de Investigación Judicial), evidence No. 618, includes the information coming from Panama, as can be seen in folios 59, 70, 81, and 88, which contain indications of transfers from a company named Servicios Notariales, unrelated to the CCSS-Fischel case, to the company Marchwood Holding, which was indeed under investigation in that case. It is in this way that the Prosecutor's Office learns of the company Servicios Notariales QC S.A.; it otherwise would not have become aware of its involvement had it not been for the use of this spurious evidence. They establish that this illegal information arrived in Costa Rica from Panama at the beginning of September 2004 and was finally received at the Prosecutor's Office on September 10, 2004, at 2:00 p.m., as recorded at Folio 895 of the judgment. Information was requested about Marchwood Holding, not about Servicios Notariales QC, starting on May 25 of that year, and as of September 10, the Prosecutor's Office becomes aware of the existence of a company named QC and initiates an investigation regarding it from that moment on. In other words, they insist, there is no prior reference to Servicios Notariales QC before this date of September 10, and therefore the investigation of the ICE-ALCATEL case formally begins with the information obtained from evidence 588 from Panama, which is null, they emphasize, due to having been obtained without a judicial order, and therefore its consideration must be excluded in application of the exclusionary rule established by the rulings of the Constitutional Chamber (Sala Constitucional) and numerals 180 and following of the Code of Criminal Procedure (Código Procesal Penal), affecting any element that derives from it. They claim there is no independent and autonomous evidence apart from that illicit evidence that would allow the illegality of this information obtained from evidence 588 to be cured. According to the judges of the Majority Vote, there would be independent evidence apart from evidence 588, which is not affected by the alleged illegality, and that if evidence 588 were eliminated, it could sustain the assertions of the prosecutorial accusation against the defendants. They cite, for this purpose, journalistic sources: evidence 592.9 called PRINT PRESS MONITORING FROM DECEMBER 9 TO 31, 2004, in reference to publications from April 21 and 27 of that year, which make no reference whatsoever to the topic under discussion, according to what the defendants establish. This is because from the press notes to which the Judges allude, the existence of a company called Servicios Notariales QC S.A. does not emerge. There are only references to a house in [...] and to [Nombre021]. At folio 935, journalistic notes from April 2004 are cited, which appear in evidence 529.9 and 682.1. However, the first speaks of some topics regarding Taiwan and the second refers to other facts but in no way to Servicios Notariales QC. Nor does the publication cited at folio 936 provide the information the judges intend, because said note from September 28 also does not allude to Servicios Notariales QC, in addition to the fact that by that date the illegally obtained banking information from Panama had already arrived. According to the appellants, it would be evident that the press had received the derivative information to solicitously contribute to the investigation. They also reject that the interview with Mr. [Nombre085] on September 27 was prior to the illegal evidence coming from Panama. They contend the judges opined that it was the banking data that provoked new courses in the investigation and which provoked the obtention of subsequent evidence. They continue with their argument, and now study THE ACTIONS OF MR. [Nombre032] NEITHER IN WRITING NOR VERBALLY HAVE THE MAGIC TO SUPPRESS THE INVALIDITY IN THE OBTENTION OF THE PANAMANIAN BANKING EVIDENCE. This concerns the criticism of the possible way to eliminate the illicitness of the evidence through the consent given by Mr. [Nombre032] to the use of the evidentiary elements that could be obtained from access to his accounts, not only through the available written documentation but also through the verbal expressions he makes at trial. According to the appellants, and this is their central argument, the evidence was obtained without a judicial order and entered the country on September 10, 2004. With this evidence in the hands of the Public Ministry (Ministerio Público), liftings of banking secrecy were ordered for companies such as Servicios Notariales QC, the defendants were accused, and precautionary measures were requested. And it is not until May 17, 2010, that [Nombre032] grants his authorization for the obtention, use, and utilization of the banking information available in his bank account in Panama, as the Judges relate at Folio 896 and is recorded in Evidence 759 at folio 13449 of the case file. They question this authorization as a way to provide retroactive legality to the access to his accounts without a judge's order, attempting to erase the illegality that already exists from the prosecutorial action regarding this issue. They likewise question attempting to prove the character of account representative held by [Nombre032] using the same questioned evidence 588, especially when this is done six years later. They also reject the theses related to the idea of inevitable discovery, of the notitia criminis, or of casual finding, with which the court attempts to legitimize the use of evidence 588, with arguments that are untenable due to the illegality of the evidence that, by its very origin, makes the use of its information in the criminal process impossible (folios 173584 to 173586 of Volume XL). Their claim is well-founded. The arguments for analyzing this legal problem have already been explained above, when resolving the appeal filed by Dr. [Nombre012] (A-1). This being the case, the same effects that this determination had for the defendant [Nombre012] must be applied to the defendant [Nombre015]; the nullity of documentary evidence No. 588 and all evidentiary elements dependent upon it is declared, the nullity of the criminal judgment of conviction issued against [Nombre015] is declared, and in its place he is acquitted absolutely of all penalty and responsibility. D. Vices regarding the determination of the fact and the weighing of evidence to determine the indications that led to the conviction for the crime of Penalty of the Corruptor (Penalidad del Corruptor). 1. Regarding the erroneous application of substantive law in what refers to article 345 of the Penal Code (Código Penal). In the first ground for vices in iudicando, the appellants claim that Mr. [Nombre015] cannot be convicted as the perpetrator of the crime of Penalty of the Corruptor for having made a promise to deliver a gift for the performance of an act proper to the functions of those involved. The subsequent delivery of the gift would be an unpunished act because it is independent, and the unjust content of the action is embodied in the promise of the gift. The appellants begin with some considerations on the systematic function of the criminal type and the derivations that can be established between its normative description and its role of guarantee for criminal law. Regarding the crime of penalty of the corruptor, which occupies the central interest of this section, they consider that the facts point to the following: “…The norm corresponding to the PENALTY OF THE CORRUPTOR (currently that of article 345 of the Penal Code) has been subject in recent years to several direct or indirect reforms. In consideration of what was established by the corresponding criminal type for the approximate date of commission of the criminal acts that are considered accredited (according to what was held to be demonstrated as follows: [Nombre004]: offering of a gift at the end of 2000 and beginning of 2001; [Nombre001]: offering of a gift at the end of 2000 and beginning of 2001; [Nombre026]: offering of a gift at the end of 2001; [Nombre027]: offering of a gift between the months of January and August 2001) this is a suitable opportunity to highlight how the norm was drafted at that time:

Article 345: The penalties established in the five preceding articles are applicable to whoever gives or permits the public official an undue gift or advantage.

It is of interest to highlight that article 185 of Law 7732 of December 17, 1997, modified the numbering of the Penal Code and assigned numeral 345 to what until then was article 343. Subsequently, the norm of article 343 bis was added to the Penal Code through Law 8185 of December 18, 2001, published in La Gaceta No. 10 of January 15, 2002, referring to the Offering or Granting of Gifts or Retributions. This sanction covers the concrete conduct of whoever offered a gift to a public official of ANOTHER State. Finally, we must also highlight that article 1 of Law 8630 of January 17, 2008, repealed article 343 bis and reformed the norm of article 345, both of the Penal Code, so that henceforth it reads as follows:

"Article 345.- Penalty of the corruptor: The penalties established in the five preceding articles shall be applicable to whoever gives, offers or promises a public official an undue gift or advantage."…” Regarding the protected legal interest in the crime of Penalty of the Corruptor, some doctrinal annotations are made. They begin with Muñoz Conde, who maintains that the correct functioning of the administration is protected through the punishment of this conduct, which also includes the principle of impartiality in the public official. The author ORTS BERENGUER, for his part, points out that through this figure, the principle of objectivity and impartiality in the administration is protected. In Latin America, the Argentine author CREUS indicates that the venality of the public official is protected as the object of protection. They also cite precedents from the rulings of the Third Chamber of Criminal Cassation (Sala Tercera de Casación Penal), specifically Ruling 183-95, which in turn reiterates what was already upheld in 256-F-97, and in which it was said that what was protected was the “healthy and normal functioning and prestige of the public administration through the correctness and integrity of its employees or servants…”. Regarding the action prohibited by the criminal norm as set forth before the criminal type, they suggest that a simple analysis of the incrimination yields the result that what is prohibited is the conduct of giving or permitting a gift or the undue advantage that the subject makes to the public official. About the history of this criminal type with regard to the prohibited conduct, they add the following: “…This is a suitable opportunity to note that the relevant history in relation to this article begins with the pronouncement contained in Ruling 461-91 of the Constitutional Chamber of the Supreme Court of Justice. In what is relevant, it essentially established that article 343 of the Penal Code (345 later) cannot be interpreted without violating the constitutional principle of legality, in the sense that what the legislator intended to say is not 'permitiere' but rather 'prometiere'. The same case within which this Ruling of the Constitutional Chamber was ordered later provoked the issuance by the Third Chamber of the Supreme Court of Justice of Ruling 183-95, which indicated, in what is relevant, that the Constitutional Chamber established that it is not legitimate to read 'prometiere' where it says 'permitiere'; but that the truth is it did not establish anything regarding the meaning of the words that make up the criminal type: it does not tell us what we should or should not understand from those words. And what the appellant maintains is, precisely, that when the Constitutional Chamber establishes that the verb 'permitiere' cannot be substituted for the word 'prometiere', it is not excluding the 'offering' or the 'promise' as a possible semantic content of the word 'diere' set forth in the referenced numeral of the Penal Code. Consultation of various dictionaries proves the appellant right; such that one must agree that whoever promises, offers, or proposes a gift, present or future, to a public official, so that the official performs an act contrary to their duties (or incurs in any of the hypotheses of articles 338 to 342 of the Penal Code), adapts their conduct to the hypothesis provided for and sanctioned in article 343 of the Penal Code… The appellants reject this derivation that the Criminal Cassation Chamber made in its precedents, and suggest that the norm as set forth before the type does not encompass the meanings of “to propose, to offer, or to promise.” The ground must be granted. In effect, the word “permitiere” cannot be given the legal-criminal application as if it said “prometiere”, because this changes the meaning of the prohibition. The principle of criminal legality, contemplated in article 39 of the Constitution (Constitución Política) and in article one of the Penal Code, requires great care from the judge not to assume legislative functions, which would indeed be produced, for example, through amending eventual errors in the publication of a law, or promoting readings of the structure of the type that are aberrant from the conventional use of terms. Attempting a reading, for example, of the verb “dar” based on contrived semantic elaborations, which could depart from the correct interpretation of the term from the conventional understanding of said verb, could lead to a substitution of the punitive objective of the penal law, which has as its objective to be understood by the addressees of the norm, and understood in such a way that the prohibition is obeyed. This being the case, understanding the word “dar” as if it were “to promise” or “to offer” is an interpretation that contravenes the principle of legality, not only because it gives the semantic interpretation a twist that departs from the conventional use of said term, but also because it implies extending the scope of coverage of the criminal type beyond where the limits of the punishable allow. To do so would be to incur in an extensive interpretation of the contents of the criminal type which is prohibited by the Political Constitution, which is inspired by several centuries of construction of criminal guarantees that have been developed to prevent this type of judicial action, which affect the legal certainty of the male and female citizens of a Democratic and Social State of Law such as the Costa Rican one, according to the programmatic reading of article 1 of the Political Constitution. The Third Chamber of the Supreme Court of Justice itself, in its Ruling No. 580-F-91, expressed a criterion in the sense that the norm could not be given a content or meaning that the legislator had not foreseen: “III.- In the first ground of the appeal on the merits, articles 1, 30, 31, 54, 343 and 339 of the Penal Code are accused of being violated. The appellant affirms that the criterion of the Constitutional Chamber is not correct, since from the concordance of articles 343 and 339 of the Penal Code it is deduced that the promise of a gift or undue advantage, made to a public official to perform an act contrary to their duties, or to not perform or delay an act proper to their functions, constitutes a typical, unlawful, and culpable act. The reasoning is not acceptable, in the first place because the verb used in the cited article 343 does not include the promise (diere or permitiere), and even if the legislator had intended to include the promise, according to the relationship made with 339 ibidem, the truth is that what the norm says must prevail and not what the legislator could have wanted without indicating it in the norm, in accordance with the constitutional principles of legality and typicity. In the second place, a different interpretation from that of the Constitutional Chamber made in Judgment N 461-91 of February 27, 1991, would not be admissible either, insofar as it indicated that in the cited article 343 the promise was not included, based on article 13 of the Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), which establishes that the jurisprudence of said Chamber is binding erga omnes. For all the above, the ground must be declared without merit”. There are other rulings that dissent from the criterion just cited, such as Ruling 183-1995, when it interprets that the concept “diere” encompasses the meanings “to propose, to promise, and to offer”, however, these types of criteria oppose an application of criminal types in conformity with the constitution. The appellants recall a dissenting vote of Dr. Javier Llobet, in his function as cassation judge, who in a ruling of the former Cassation Court, Ruling No. 27-2004, held the following: “…VI.- DISSENTING VOTE OF JUDGE LLOBET RODRÍGUEZ: The undersigned judge respectfully disagrees with the majority insofar as it considers that the crime for which the defendant was convicted was consummated, considering instead that it remained at the stage of attempt, in accordance with the description of the criminal type of penalty of the corruptor, established in article 343 of the Penal Code. For the above, he considers that even if the defendant gave a gift, this was done in a police operation, which fundamentally must be considered to have had the purpose of verifying the illicit action the defendant had incurred by offering a gift to a lawyer of the Constitutional Chamber. The fact that this was a controlled operation prevents one from properly speaking of a consummation of the crime, and it must be considered that one is dealing with an attempt, since the offering of the gift constitutes an act of execution of the crime. This criterion was already outlined in the note of Magistrate Piza Escalante to ruling 461-91 of February 27, 1991, of the Constitutional Chamber, with the Third Chamber of the Supreme Court of Justice having made mention of the same in various judgments, although the same Chamber has fundamentally issued sentences related to facts similar to the present one considering that a consummated crime occurs, by means of the use of the term “diere”, considering that 'dar', according to the dictionary of the Royal Academy, has among its meanings 'to offer'. This is the criterion that said Chamber has maintained starting from ruling 183-F-95 of March 24, 1995, to which it refers. This judge, however, considers that regarding the term 'dar', the concept used in common language must be followed, which is a consequence of the principle of legality, and it must be considered that 'dar' is 'to hand over', which is the first meaning found in the Dictionary of the Royal Academy. Nevertheless, the action of offering a gift cannot be considered unpunished, since it already implies the performance of an act directly aimed at the consummation of the crime, which could not be consummated because ultimately the gift was rejected by the lawyer of the Constitutional Chamber and even an operation was set up to catch the defendant (Art. 24 of the Penal Code).” (the underline is not from the original)…”. The thesis exposed in this dissenting vote is the one this Chamber endorses, in the sense that the verb “dar” must be granted the meaning of common language, and that therefore its content would be identical to “donate” or “hand over”, which are the first meanings from the Dictionary of the Royal Spanish Academy of the Language (Diccionario de la Real Academia Española de la Lengua). The reform of article 345 of the Penal Code, through Law 8630, was aimed at correcting this incongruence in the legislative construction, and it was thus, in the year 2008, that the criminal type was constructed to read: “Article 345. Penalty of the Corruptor: The penalties established in the five preceding articles shall be applicable to whoever gives, offers or promises a public official an undue gift or advantage.” The foregoing demonstrates the will of the legislator to correct a blunder included in the previous construction of the incrimination, which made its application impossible for cases of remunerative offer or promise, which should be considered within the crime of Penalty of the Corruptor, both because of the way these acts occur in the world of life, and because this construction also encompasses more probable hypotheses of commission. [Nombre015] is accused of promising a gift to [Nombre001], [Nombre004], [Nombre026] and [Nombre027], all public officials, for the purpose of performing acts proper to their functions in relation to a contract in which the Public Administration is interested. From this perspective, it must be declared that such actions do not constitute the crime sanctioned by the norm of article 343 of the Penal Code at the time of commission of the criminal act, nor any other of the crimes established by the Penal Code, not only because that is not the content of what is prohibited, but also because, as has already been resolved in relation to the other co-defendants, it has not been possible to determine what the concrete action they had to deploy was, or if the gifts were as a reward for a completed act. In other words, there is a favorable effect on the legal positions of [Nombre015] regarding the indeterminateness of the acts accused against the alleged affected parties by the corruptor act, which undoubtedly must concur to produce the nullity of the judgment and declare the acquittal. Furthermore, and this is consistent with a democratic criminal law, it cannot be considered that the promise of the gift is independent from the delivery of the gift, because both moments are univocal and inseparable for the corruptor, who wishes to affect the legally protected interest in crimes against probity. In this sense, also for this reason, it is appropriate to order the acquittal in favor of [Nombre015].

XII.- THE APPEAL OF THE DEFENDANT [Nombre021] IS RESOLVED BY MEANS OF A WRITING AUTHENTICATED BY LICENCIADO HUGO SANTAMARIA LAMICQ IN EXERCISE OF HIS MATERIAL DEFENSE. The defendant [Nombre021] appeared before this Chamber to file an appeal for cassation and subsequently conversion of his appeal into an appeal. Of the grounds raised by the accused [Nombre021], this Court of Appeal will proceed to resolve, in the first instance, those vices that constitute fundamental reasons to decree the nullity of the judgment and the acquittal of the accused. Section One.- Vices that by themselves imply the nullity of everything decided. A. The cause is time-barred. In the First Ground of the appeal of [Nombre021], erroneous application of the prescription rules enshrined in articles 31, 32, 33, 361, subsection a) and 369 of the Code of Criminal Procedure is alleged. He begins by pointing out that the Court rejects the exception of prescription that the defense of [Nombre021] filed. However, the minority vote of Judge Camacho Morales disagrees with this criterion and accepts the exception, and refers to the reasoning set forth in the dissenting vote. He considers that the substantive issue consists of the application of article 62 of Law No. 8422 of October 6, 2004, called the Law against Corruption and Illicit Enrichment in the Public Function (Ley contra la Corrupción y el Enriquecimiento Ilícito en la Función Pública), hereinafter LCC, which entered into force on October 29 with its publication in La Gaceta Number 212 of that day. According to the Court itself, had it not been for that norm, the cause would already be time-barred, so he proceeds to question this interpretation that incorrectly applies the prescription rules of the procedural law and of the LCC itself, as well as some aspects of the erga omnes jurisprudence of the Constitutional Chamber. According to the majority vote, since the prescription period is not reduced by half, as established by article 33, first paragraph of the procedural law, when the provisions of Article 62 of the LCC were presumably applied, the criminal action would prescribe on November 30, 2007, and not on May 30, 2006. Therefore, he considers that the important thing is to determine if that article 62 LCC is applicable to the case. In this regard, he begins his argumentation with the idea expressed in the majority vote, at folio 792, where it is said that they do not share the defense's thesis in the sense that this concerns a reduction of deadlines for the duration of the process and not a prescription issue. The difference is of interest, because if it concerns a control of the duration of the process, we would be in the presence of an issue of rights acquired by the defendant and not before issues of prescription or the application of procedural norms. The control of the duration of the process is a human rights issue, the defendant [Nombre021] insists, which would derive from article 41 of the Political Constitution, insofar as it raises the issue of swift justice. Increasing the deadlines for controlling the duration of the process to the detriment of the defendants would indeed configure a retroactive application of the law to the detriment of acquired rights. However, the judges of the majority vote depart from the criterion of the defense, which in turn rests on what was set forth in Ruling 4397-99 of 4:06 p.m. on June 8, 1999, which in its considering VI, which is erga omnes, explains that those terms are not properly of prescription but of reduction of the deadlines for the processing of the procedure according to the idea of controlling its duration. But even rejecting this criterion, which would prevent retroactivity to the detriment of acquired rights of the defendant, there would be another criterion, also constitutional, which holds that prescription norms cannot be applied retroactively unless the legislator expressly provides for said retroactive application. According to the appellant, the Constitutional Chamber, in its ruling 4397-99 clearly established that laws govern towards the future, so their application backwards would only be valid by express mandate of the law. In criminal procedural matters, it would not be prohibited for the law to be applied retroactively as it itself establishes only for pending cases. The ground must be granted. Article 62 of the Law against Corruption and Illicit Enrichment in the public function does not expressly have an indication that it is to be applied in pending or future-initiated causes, so it must be interpreted in a manner consistent with the Political Constitution and the erga omnes jurisprudence of the Constitutional Chamber, that the mentioned regulation shall be applicable to the future.

That is, Article 62 of the LCC would only be applicable to cases initiated after October 29, 2004. If it was the legislator's will to cover cases pending on that date, it should have expressly stated so, so that the effects of the subsequent law could radiate to all cases initiated before the law's entry into force. The aforementioned law contains no transitory provisions nor any explanation in the "Statement of Motives" that provides arguments to consider a retroactive application of its provisions. Rather, the legislator's wording allows for the inference of an interest in regulating for the future, which is why verb forms such as "prescribirán" (will prescribe) or "regirán" (will govern) are used, which are intended in the Spanish language to imply the future. If the legislator's will were otherwise, it should have been clearly expressed, alluding to the retroactive effects of the subsequent procedural law. Judges, in effect, are prevented from performing functions proper to the legislator, and could not interpret effects that the procedural law does not expressly contain. This last point, above all, when the subsequent procedural law could have retroactive effects contrary to the legal positions of the defendant, limiting their right to a defense, their rights of intervention in the process, their right to release, or, as now, to validly claim the passing of the statute of limitations for the criminal case. Procedural laws are designed to govern for the future, so logically, and based on their interpretation in accordance with the Political Constitution, only those procedural provisions that have a more benign effect on the legal positions of the defendant would have retroactive effect. In the present case, the accused [Name021] testified after October 29, 2004; however, the case had been initiated before that date and its provisions were not applicable to it, absent an express legislative rule that does not exist in the present case. For this reason, the statute of limitations period for [Name021] would have only occurred on May 30, 2006, prior to the finality of the complex processing declaration for this case in July of that year or the scheduling of the preliminary hearing in September 2007. Both procedural moments occurred after the date on which the case should have been declared time-barred. Regarding the issue of the complex processing declaration for the case, this Chamber has already ruled against the retroactive effects that have been given to the complex processing declaration for the case. The reasoning that supports this conclusion has already been expressed when resolving the appeal of Dr. [Name012], to which reference is made to avoid unnecessary reiteration. It is therefore appropriate to declare the case against [Name021] time-barred and to acquit him of the crime of Illicit Enrichment that was being attributed to him. B. Spurious evidence. In the second ground of the appeal filed by [Name021], the erroneous application of the rules concerning the lifting of bank secrecy is raised, such that the bank evidence used to demonstrate the deposits in his favor is illicit and unusable for conviction. He argues that his defense counsel opposed the bank evidence from the Bahamas. The Court expressly ruled on this issue in Considerando II. H. 1. As it explains, said bank evidence originating from the Banco de San José in the Bahamas, requested in the CCSS-Fischel case and provided as evidentiary material in this proceeding, as per items of evidence 543, 544, and 545, had been requested exclusively for the case known as CAJA-Fischel and not for this proceeding. It indicates that an alteration of the English translations eliminated that express obstacle that the evidence would only be used in the CAJA-Fischel case, and it is sought to prove with it the receipt of certificates of deposit by [Name021] with funds originating from ALCATEL and Servicios Notariales QC, which were deposited in BAC BAHAMAS BANK LIMITED in that country. The defense thesis is that there was no judicial order to lift bank secrecy for the ICE-ALCATEL case. The Court errs, he says, because it affirms that the evidence comes from Banco de San José in the Bahamas, and that is its first false statement. It is not the Banco de San José in the Bahamas; it is an autonomous bank, registered in that place, and not a branch of BAC San José, as the majority Court maliciously tries to imply. They would be two different banks and not a simple branch of the same one. He alleges that a letter rogatory to the Bahamas was needed to request the bank evidence. If it had been the Banco de San José itself, it would have been enough to request the information from BAC San José within the country. He is correct in his claim, and the ground must be granted. The bank domiciled in the Bahamas is not a simple extension of BAC San José, but a bank that has been founded in accordance with the rules of another country, for which reason the procedure to obtain banking information from that institution must be done through official channels and, of course, with a judicial order to lift the bank secrecy. According to the majority vote (page 874), the aforementioned bank evidence obtained for one criminal case could be used for other criminal cases different from those for which they were originally obtained, with an interpretation that would lead to the absurd criterion that the Public Prosecutor's Office would only need to obtain judicial authorization for a single lifting of bank secrecy to use said information in countless criminal cases, even decontextualized from those where the intervention was originally obtained. It is evident that this type of sensitive information must be requested, ordered, stored, used, and interpreted in a manner that is compatible with constitutional regulations. It could not be intended that the value and essential content of the constitutional right to privacy of this type of information be reduced, solely due to an extended interest of the prosecuting body, which also intends the use of this information without any context of a prior investigation, with a judicial order not expressly issued for said obtaining of information, and with an effect on criminal cases not even open when the original criminal investigation was decided. The utility value of the bank evidence must be enabled by an entire process of request, obtention, introduction, and judicial assessment that is contextualized within the criminal case where it has been required. This last point is fully compatible with an interpretation of the right to informational self-determination in the case of financial information, and regarding the effects of said information for the demonstration of a specific criminal fact. The order must assess the necessity, suitability, and proportionality in the strict sense of the information to be required, taking into account the nature of the case, the sensitivity of the information, and the available suspicion premises at the procedural stage in which the obtention of the bank evidence is decided. Furthermore, the request must be directed expressly to the banking institution that holds the information in its databases. The right to informational self-determination contemplated in the constitutional program of Costa Rica, based on Article 24 of the Political Constitution, in full congruence with the erga omnes jurisprudence of the Constitutional Chamber (Sala Constitucional), requires a certain threshold of suspicion of the commission of an illicit act and a weighting of the proportionality of the measure that affects fundamental rights, in order to proceed to obtain the information. This must be assessed in each specific case, and therefore the request for the lifting of bank secrecy cannot be generic and decontextualized from the case in which it will be used. It is evident, then, that if the evidence obtained in the Bahamas cannot be used in the present case, the evidentiary connection with the deposits for the benefit of [Name021] should be suppressed for having affected constitutional guarantees. Now then, the alleged correspondent relationship or reciprocal representation contract between BAC San José and Bahamas Bank Limited is another important issue that has not been demonstrated in this case, and it is also unknown whether the mentioned banks can exchange available information from their accounts by mere internal administrative request for the normal course of their financial activities. In the judgment, it is affirmed that the order for the lifting of bank secrecy for BAC San José was sufficient to also lift bank secrecy in the Bahamas, that is, in another territorial jurisdiction, and, of course, with other legal norms in force. Bahamas Bank Limited, as the appellant rightly affirms, is not part of the Costa Rican banking system, so the lifting order from the national system cannot affect a banking institution domiciled abroad. Arguing in that sense would lead one to think that an order issued for the national banking system would have to affect international banking in any geographical context, which is not compatible, for example, with the different banking regulations governing financial activity in various countries of the world. The sending of transfers from Costa Rica to another country does not convert the banks that receive said transfer into part of the national banking system. That they receive transfers responds, of course, to a commercial practice that has been increasingly standardized with the objective of avoiding damages and losses to bank clients and to maintain the functionality of the international transfer system. This being the case, the evidence obtained without any correspondent contract between the banks, and without the lifting of bank secrecy, renders the information obtained illicit and unusable as evidence in the criminal proceeding under examination. Furthermore, the effects already considered from the appeal filed by the defendants [Name001], [Name009], [Name015], and [Name021] apply. (Appeal visible on folios 17264 to 17278 of Volume XXXVI), they raise in their brief, authenticated by Lic. José Miguel Villalobos Umaña, the nullity of evidence item 588. This appeal was analyzed on the occasion of the study of the challenge by Lic. Erick Ramos and Lic. Federico Morales in favor of Mr. [Name015]. As stated there, the arguments to analyze this legal problem have already been explained earlier, upon resolving the appeal filed by Dr. [Name012] (A-1). This being the case, it is appropriate to apply to the defendant [Name021] the same effects that this determination had for the defendant [Name012]; the nullity of documentary evidence No. 588 and all evidentiary elements that depend on it is declared, the nullity of the criminal conviction judgment issued against [Name021] is declared, and in its place, he is directly acquitted of all penalty and responsibility. Second Section. Defects regarding the determination of the fact and the assessment of the evidence to determine the indications that led to the conviction for the crime of Illicit Enrichment. A. Absence of the detailed determination of the fact that the court deems accredited, in violation of Article 369, subsection b) of the CPP. The accused alleges that illicit enrichment has been attributed to him for the receipt of gifts (dádivas). According to the judgment, in Considerando X, folio 1555 in fine and following, a gift (dádiva) is offered to the accused and subsequently paid to him. In this regard, he questions that the attribution of an offer of a gift (dádiva) is made when said requirement is irrelevant for the criminal type of Illicit Enrichment. In reality, the receipt of the gift (dádiva) is what is punishable. The offer or promise of a gift (dádiva) has no interest for the criminal prohibition regarding that specific criminal type; it does, of course, for different criminal types, where the offer of the gift (dádiva) is a requirement of the objective type. The ground must be granted. The general approach of the appeal in relation to the accused [Name021], regarding the fourth, fifth, and sixth grounds, starts from two essential premises: on one hand, it has been accused and demonstrated, says the Court, an offer of a gift (dádiva) and an acceptance of the same by [Name021]. The court insists, then, on a remunerative promise that occurs at a meeting in the Café Ánfora of the Hotel San José Palacio, at 8:21 a.m. on August 17. Secondly, that Article 346, subsection c) of the Penal Code requires that the delivery of gifts (dádivas) take place while one remains in office; in this regard, it is discussed not only the fractional delivery, but also the extent of five money deliveries at times when [Name021] held no public office. In this regard, the appellant is correct; the determination of the fact starts from an erroneous premise, that is, that the receipt of the eventual gift (dádiva) required its prior offer. This last point is mainly due to the conviction for illicit enrichment, a criminality that has no link, and should not have any, with the offer of a gift (dádiva), that is, of a remunerative promise. The offer of a gift (dádiva) is central, for example, to the crime of Bribery and to that of Corruption, since in these crimes the receipt of a gift (dádiva) or the acceptance of a remunerative promise is directly aimed at performing an act inherent to one's functions (improper bribery, Article 347 of the Penal Code) or to performing an act contrary to one's duties or to omitting or delaying an act inherent to one's functions (proper bribery, Article 348 of the Penal Code). This being the case, when the incriminated action does not require a specific doing or not doing, one would be in the presence of a mere act of illicit enrichment. Now then, the imputation of facts prior to the receipt of the gifts (dádivas) is reached with the objective of linking, specifically, [Name021] in space-time with the supposed strategies aimed at obtaining the contract for the 400,000 lines, where the intervention of [Name021] could have been marginal or of little interest. In any case, it is not determined what he did or failed to do; it only seeks to establish [Name021]'s responsibility based on a meeting, which, as has already been discussed and analyzed upon resolving the preceding appeals, is verified with a voucher for restaurant services at the Hotel San José Palacio. This document does not allow one to derive the content of what was discussed on that occasion, nor whether, in effect, there was an effective promise of a gift (dádiva). Facts before and after that meeting do not allow one to derive, with the certainty necessary for a conviction judgment, that, in effect, there was an unlawful promise that was accepted by those who participated there. Much less is there consistent proof that [Name021] accepted a gift (dádiva) that would be delivered in a fractional manner, which is the other element of analysis that must be taken into account. As analyzed in the appeal, it would be necessary to assess, additionally, whether the mere receipt of the gift (dádiva) is an indication of having accepted it, as the Trial Court seems to derive. The way the criminal type of Illicit Enrichment is constructed in the Penal Code does not require a prior promise, this because it is a subsidiary figure that comes into application precisely when there is no proof of a crime against the duties of public office. Criminal policy reasons led to the introduction of the figure of illicit enrichment into the legal system to punish those cases of asset growth of the public official where there is no proof of the crime against the duties of public office that motivated that increase. It is a legal strategy to prevent impunity for these asset increases and to bring to justice the officials who hold them. Hence the subsidiary nature of this figure, which would then be displaced when there is sufficient proof of the commission of a crime against the duties of public office. In the case of the criminal figure contemplated in the Costa Rican Penal Code, subsidiarity exists when there is a demonstration of proper or improper bribery. This is not the case with the facts imputed to [Name021]. In Considerando X-D, the issue of the receipt of the fractional payment of the gift (dádiva) is raised. According to the circumstances that the judges of the majority vote consider proven, there would have been an offer of 0.5% of the contract that was obtained (folio 1570 of the ruling), for which there is no specific determination in the ruling as to why this specific percentage is derived, but it is estimated that on that same day the fractional payment of that 0.5% was accepted. This emphasis is unnecessary, since the criminal type attributed to [Name021] does not require that there be a prior promise. However, according to the ruling, not only was the promise of a gift (dádiva) made at that meeting, but [Name021] accepted it, though it is not yet known in exchange for what. The deduction occurs not only, the judges say, from the events that occurred before but also from those afterward. In this regard, there is no proof; no one stated what was said at that meeting, which could have dealt with any other topic, but there is a fixed conviction from the majority vote. This circumstance affects the defendant's right of defense, not only because he had to defend himself against a circumstance that is unrelated to the criminal typicality attributed, that is, the remunerative promise, when, on the other hand, the reproached typical context is for receiving the gift (dádiva). It is for this reason that the establishment of facts in relation to the typical act of Illicit Enrichment has deficiencies, and also causes, for these reasons, the nullity of the ruling against him. B. The gifts (dádivas) were received when [Name021] did not hold the status of public official. Regarding this issue, there are two claims: on one hand, that there was an acceptance of a gift (dádiva) paid in a fractional manner, that is, that the receipt of the gift (dádiva) is fractional. The criminal type of Article 346, subsection c) requires that gifts (dádivas) be admitted while one remains in the exercise of the office. It is proven that [Name021] ceased to be a deputy on April 30, 2002, and therefore, money received outside that date would not be covered by the criminal prohibition. There would be a problem, at least, with the certificates of deposit received in the month of January 2002, when [Name021] was still a deputy. But the ground refers, for the moment, to the transfers and alleged gifts (dádivas) made after April 30, 2002. The strategy of the conviction judgment would be to link [Name021] to the payments after April 30, 2002, as illicit enrichment, only because he "accepted" them while being a deputy. In other words, [Name021], since he was a deputy, accepted gifts (dádivas) that would be paid in installments that would extend beyond his period as a legislator. The thesis collapses under its own weight, and affects the establishment of the fact of which he is accused, mainly because said configuration of the criminal type of Illicit Enrichment does not require, and could not do so, the prior promise, and, on the other hand, there is no proof, either, that said promise was verified, since the circumstantial elements in this regard are flimsy, amphibological, and do not withstand an analysis based on sound criticism (sana crítica). It is for this reason that the judgment must also be annulled for this reason. Now then, regarding the payments received when [Name021] was still a deputy, the eighth ground of the defendant's appeal is pronounced upon, where ERRONEOUS ASSESSMENT OF THE EVIDENCE IN VIOLATION OF THE RULES OF SOUND CRITICISM (SANA CRÍTICA), INFRINGING ARTICLES 142, 184, AND 369, SUBSECTION D) OF THE CPP is alleged. He criticizes, in the first place, that six certificates were delivered to [Name021]. Considerando X-D refers to what it calls the second delivery of the gift (dádiva) to [Name021]. The majority vote incorporates into its reasoning the thesis that [Name021] received six investment certificates from ALCATEL through a delivery made by the company Servicios Notariales QC. The appellant insists that there is an error that the judgment incurs, as there are not six certificates as stated on folio 1579; in reality, it concerns four documents, whose numbering appears on folio 1580. All were issued on January 10, 2002, with a maturity date of February 11 of the same year, and acquired by the company QC from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars each. On Folio 1580, the Judges state that those titles were delivered by the accused [Name009] to the defendant [Name021] and that the latter admitted them from the former on February 11, their maturity date, and immediately endorsed them and deposited them in his BAC San José account. The Judges refer to evidence item 417, which only demonstrates that [Name021] endorsed the titles and deposited them in his account, but in no way proves that [Name009] delivered them to him nor the date on which such an event occurs, and this renders the reasoning void for being irrational and contrary to the rules of sound criticism (sana crítica). These are bearer instruments, which circulate by simple delivery and whose transfer occurs without the need for an endorsement on the back of the document, in accordance with Article 712 of the Commercial Code. According to this thesis, then, the instruments were transferred by simple tradition, for which reason the title of the possessor is not recorded, which means, for example, that the instrument cannot be replaceable in case of loss, as one of the general rules derived from Article 712 of the Commercial Code. This is why it cannot be established that they were received directly from [Name009], as the judges seek to maintain. There is a period of one month that passes between [Name009] withdrawing the instruments and depositing them in his account, so it is possible that [Name009] delivered them to any other person, who in turn to another, and then this other one had them reach [Name021], without it being able to be presumed that [Name009] gave them directly to [Name021]. The appellant questions the legal criterion expressed by the judges, by citing Article 717 of the Commercial Code, which was repealed 21 years ago, in 1990 by Ley 7201. This article only referred to the fact that the instrument belongs to whoever has it in their possession, which no one has questioned. And that good faith and just title are presumed here, as is appropriate in application of the principle governing movable property matters. But from this rule it is not derived, the appellant suggests, that it must be considered that the initial acquirer is the one who must have delivered the instrument to the depositor. He also questions the commercial law knowledge of the judges when they maintain that "... the absence of a chain of transferors determines that the title was transferred from its originator to the person who appears as its holder before the teller or respective official of the banking entity, so in the specific case, it is inferred that from [Name009] it passed to [Name021]". In other words, since it is not possible to verify a chain of transferors, it must be assumed that it is the original acquirer who delivered it to the final possessor. This is not so, the appellant argues, and this is only true for nominative instruments, which are transferred by endorsement, and not for bearer instruments, as were the ones being analyzed. On this he explains: “…What is proper is that in these instruments the chain of transferors is absent, which is why it is a bearer instrument, so what the pair of Judges misses is what always occurs in this matter, that there is no chain of transferors because the documents are not endorsed. Therefore, it cannot be deduced from the above that it was [Name009] who delivered the documents to [Name021]. But the Judges also err when they point out that since the instruments have a legend on the back expressing that they can only be deposited into [Name021]'s account, this proves that [Name009] delivered them. One thing has nothing to do with the other; [Name021] receives the instruments from an undetermined person and endorses the documents with that legend to deposit them into his account, without that situation referring in any way to the participation of [Name009]…". In general, he questions the entire judicial deduction that the deposit came from [Name009], considering it nonsense to suppose that because the deposit was made to the same account as other transfers, then the depositor must have been [Name009]. He considers that this conclusion defies the rules of correct human understanding and the rules of commercial law. He deems that, as it cannot be presumed that [Name009] made the deposit, then that acquisition must be considered legitimate and legally correct, so the conduct would be unpunishable. In other words, the deliveries made when he was still a deputy, as a result of this uncertainty about the receipt of the instruments and their delivery channel, would also lead to the nullity of the ruling, as indeed must be declared. In effect, the cited rule, Article 717 of the Commercial Code, was repealed, along with other articles of the Commercial Code, by Law No. 7021 of October 10, 1990. Regarding the transmission of bearer instruments, it is clear that this is done by simple tradition, in the sense that a prior endorsement is not needed, as is the case with nominative instruments. This being the case, for bearer instruments, material delivery is enough for their transmission to occur. The absence of a chain of transferors is thus explained by the fact that bearer instruments do not require being issued in favor of a specific person (Article 712 of the Commercial Code) and because their transmission is by simple tradition, even when they do not contain the clause "to the bearer". Civil jurisprudence (cf. Voto 19-88 of the First Chamber (Sala Primera) of the Supreme Court of Justice, at 1:00 p.m. on May 11, 1988) has stated that tradition, as delivery of the thing, does not transfer ownership by itself, as it is still necessary that the delivery be the result of a legal transaction that produces those effects. This is where the relevant doubt arises in favor of the defendant, about the reason for said tradition or material delivery of the documents that were delivered to him, since as has been raised throughout this resolution, there is a reasonable doubt about the reasons for the delivery of the documents. The doubt raised about the connection between the accused [Name009] and the delivery of the documents to [Name021] is sustained, then, on these two circumstances raised by the appellants: on one hand, the expression "simple tradition" of Article 712 of the Commercial Code that should be understood in the sense that the prior endorsement is not needed, which is necessary as a "title" for the transmission of nominative instruments. For bearer documents, therefore, material delivery is enough, and this fulfills the execution of this legal fact contemplated in the rule. The absence of a chain of acquirers that the commercial rule does not demand, and the uncertainty of the legal reason for the deliveries of the documents, also operate in favor of the defendant and must be so declared. C. A repealed criminal type was applied. The ninth ground of [Name021]'s appeal discusses the validity of the criminal type applied in this case to convict him for the conduct of Illicit Enrichment. According to [Name021]'s thesis, Article 346, subsection 3) of the Penal Code was tacitly repealed by Article 32 of Law 6872 of June 17, 1983, named Ley sobre Enriquecimiento Ilícito de los Servidores Públicos (Law on Illicit Enrichment of Public Servants). According to this, the 1983 legislation would be a special law regarding the general regulation of the Penal Code, thus repealing the criminal types that had been included in said Code and that form part of the new legislation. Article 26 of this 1983 law has several specializing elements. In the first place, the penalty ranging from six months to six years, and, in the second place, that it threatened with penalty the acts carried out by the former official within one year following the cessation of office.

Article 26 is, by all appearances, much more specific and contains elements that encompass more varied conduct, considering illicit enrichment, not only the acquisition of assets of any kind or nature, and a generic provision that absorbs all receipt of money or assets. The ground must be granted. It is evident that the criminal provision of Article 346 of the Criminal Code was repealed by Article 26 of the 1983 Law, which not only contains a description of the action of Illicit Enrichment, but also adds specifying circumstances that allow encompassing more conduct involving the receipt of assets, services, money, etc., which are threatened with a higher penalty. It is not a matter, as the Majority Tribunal states, of two different conducts that can coexist because they encompass distinct typical scenarios; rather, it is a matter of two figures of Illicit Enrichment, where one is general and the other is special, contemplated in a later law, which, according to the rules of criminal interpretation, would repeal the general law and oblige the application of the special law. The Constitutional Chamber itself, in its Voto No. 11584-2001, considered that some of the subsections of Article 346 were repealed by Law No. 6872 of 1983, and that it should be expressly verified by the judges, in each case, whether or not to apply said subsections, as is now done when classifying criminal offense 346 of the Criminal Code as repealed and inapplicable to the case against [Name021]. Having said that, interpreted as it has been that the applicable provision is Article 26 of Law No. 6872 of 1983, it must be taken into account that subsections a) and c) of that criminal offense were declared unconstitutional by the Constitutional Chamber in Voto No. 1707-95 at 3:39 p.m. on March 28, 1995, and therefore would not be applicable to the species, and the actions of [Name021] would become atypical. It is not until the entry into force of Article 45 of Law 8422 of October 6, 2004, effective as of the 29th of that month, that the increase of assets in the exercise of office is again criminalized, which is not applicable to the accused acts because it is a substantive rule in force after those acts, pursuant to Article 11 of the Criminal Code. This being so, the criminal offense for which Illicit Enrichment is charged is repealed, and therefore, the conviction must be annulled, and [Name021] must be acquitted of all penalty and responsibility for the acts attributed to him. However, there is another reason, alleged in the tenth ground of the appeal, which causes the nullity of the judgment, due to an application of Article 346, subsection 3) in violation of the binding interpretation of the Constitutional Chamber. If this article were considered valid, which it is not, by virtue of the preceding reasoning, then the cited subsection must be interpreted according to the erga omnes precedents of the Constitutional Chamber, as required by Article 13 of the Law of Constitutional Jurisdiction. According to what is established in subsection 3) of the cited Article 346 of the Criminal Code, any gift (dádiva) presented or offered in consideration of the official's office becomes illicit, even if the official has not performed any licit or illicit action, proper or contrary to their functions. The mere receipt of the gift (dádiva) is already criminal. The Constitutional Chamber, since the indicated voto 1707-95, in its Considerando III, required that the prosecuting body must demonstrate the illicit origin of the public servant's assets and that it is not enough to prove the receipt of the money, much less to compel the accused to prove its lawfulness. For this, the Chamber relied on what was explained in Voto 5171-93 and sustained it without any doubt, thereby declaring unconstitutional the norms of Law 6872 that had replaced the crime of illicit enrichment. But even clearer was the Constitutional Chamber in its Voto 11584-01 at 8:53 a.m. on November 9, 2001, when it heard, through a facultative legislative consultation, the bill for the Law against Corruption that gave rise to Law 8422. At the end of Considerando IV, the Chamber expresses, in the writing of Magistrate Arguedas Ramírez, that the Constitution is violated by attempting to penalize the official for the mere increase in assets WITHOUT DEMONSTRATING THAT SAID INCREASE HAS A NEXUS WITH AN ILLICIT ACTIVITY, thereby infringing the principle of innocence by indirectly obliging him to prove the origin of his assets. In this aspect, the appeal filed must also be granted. It is not enough to demonstrate that the official's assets have increased; rather, it must be demonstrated that the cited increase was the product of an illicit activity, because otherwise there would be a reversal of the burden of proof, and it would be the official who would have to demonstrate the origin of the cited increase in assets. Maintaining that this is possible goes in direct contradiction with the cited precedents of the Constitutional Chamber, and provides another reason to cause the nullity of the ruling. D. The ordered confiscation of CERTIFICATE NUMBER [Value026] RENEWED ON [Value027] WITHOUT ANY BASIS, REASONING, OR SUPPORT is not valid. [Name021] criticizes the confiscation of certificate NUMBER [Value026] RENEWED ON [Value027], because the tribunal does not provide the reasoning either for the confiscation or for the causal relationship with the act. It is not enough, he says, to mention the literal text of Article 110 of the Criminal Code to consider the reasoning on this point correct. The reason must be explained, and why they are considered means or instruments for the commission of the act or whether they are effects or profits from it. Only on pages 1896 to 1898 are the requests for confiscation made in their conclusions by both the Public Ministry and the Procuraduría General de la República resolved. Point 9 includes a fixed-term deposit certificate with the number [Value027], which is neither described nor is its nature and reason indicated. At the beginning of page 1897, the majority thesis is summarized, and it is indicated that the effects of the crime, the means or instruments used in its preparation and execution, and the profits derived from its commission are to be confiscated, which is nothing more than the reiteration of what is indicated by Article 110 of the Criminal Code. All of this leaves an important aspect of the judgment without motivation and makes it impossible to know the criterion by which it was decided that said certificate should be confiscated. He is correct in his claim; the ordered confiscation must be annulled. It has already been said that the mere mention of Article 110 of the Criminal Code is not sufficient reasoning to establish the confiscation of assets in favor of the State. It is for this reason that the decision of the Majority Judges must be annulled and it must be resolved that this confiscation is improper, and the return of the corresponding sum to its legitimate owner must be ordered. F. There is no mention of the issue of the civil actions and the order to pay costs against the civil claimants. It is claimed that the compensatory civil actions are not rejected, and the parties are generously directed to the ordinary civil jurisdiction to resolve their claims in this regard. He indicates that the defense counsel opposed the civil actions filed by the public institutions, especially with regard to the defendant [Name021]. Although the civil action of ICE is said to lack a factual basis to support its claims, which also prevents the tribunal from ruling on the merits thereof (cfr. p. 1862). The flaws of the civil action with regard to the appellant are noted on page 1877. He considers that the correct course according to law would have been to reject the civil action and order the payment of costs, and not to interpret that there was a legal outlet to permit the action to be filed in the ordinary jurisdiction. Regarding the civil action of the Procuraduría General, the tribunal even indicates on Page 1884 that “... the conclusion is reached that there is no social damage for which all the accused and eventually third parties must be jointly and severally liable.” Further on, other errors of that action are added, such as that the Tribunal should almost do the civil claimant's work, for which Pages 1887 and the final paragraph of 1890 are absolutely clear. He complains that, if such are the errors, the appropriate course would be to reject the action and order payment of costs, but the Tribunal prefers to “lend a hand” to the civil claimants. Consequently, he requests that this resolution be annulled and that both civil actions be deemed rejected, for not meeting the minimum requirements for their consideration. He insists that the appropriate course in the present case is to order the civil claimants to pay costs, in application of Article 270 of the Criminal Procedure Code, by virtue of the multiple errors and flaws that the same judges acknowledge exist in their filings. In addition to this, he stresses that the tribunal fails in its legal duty regarding what is established in the law, because no matter how much it is said that the case is complex, the civil defendants cannot be blamed for having contributed to the failure of the actions by not having warned of those errors in a timely manner, when that was not their task. He considers that in a State of Law, a lawsuit for millions of dollars, full of ramblings and legal errors, cannot be permitted, and to let everything happen without consequences. If this were done, there would be no way to order civil claimants to pay costs, whatever their behavior. If these are complex cases, like the present one, the civil claimants must be more careful when filing their claims and litigating. It is evident that the civil actions should have been rejected and not just omitting a ruling on them, as indicated in the previous point. He requests that the exemption from costs for the civil claimants be annulled and that they be ordered to pay this item as ordered by the corresponding legislation. The issue of the condemnation in costs and the issue of the civil actions must be elucidated in a new trial in this regard. This Chamber has already ruled on the issue of the compensatory civil actions, the absence of an order to pay costs, and the interpretation made by the majority tribunal regarding this issue, at the time of resolving the appeal of Christian Arguedas in favor of Dr. [Name012]. It was considered that what was resolved on the issue was a very clear denial of access to justice based on formalisms that have no basis in Article 112 subparagraph d) of the Criminal Procedure Code, an error that must be corrected. Also to be corrected is the lack of a resolution on the merits of the civil actions filed by the Instituto Costarricense de Electricidad and the Procuraduría General de la República. Likewise, in a retrial, a decision must be made on the issue of costs, and on whether or not there was a plausible reason to litigate: the failure to decide on the merits of the civil actions caused an error that affects the definition of the costs issue, which undoubtedly causes grievance to the parties. It is for this reason that, when resolving the appeal of Attorney Arguedas, it was considered that the effects of his challenge benefit the other civil co-defendants, since it is not based on exclusively personal reasons. It is for this reason that the judgment has already been annulled in its civil aspect, insofar as it ordered omitting a ruling regarding the substantive right discussed in relation to the civil actions filed, as well as what was resolved on costs, and the referral of the process back to the competent court for the new substantiation of these aspects is ordered.

XIII.- THE APPEAL FILED BY ATTORNEY HUGO SANTAMARÍA LAMICQ IN FAVOR OF THE ACCUSED [Name018] (R.I.P) IS RESOLVED. A. Attorney Hugo Santamaría Lamicq, in his capacity as defense counsel for the accused [Name018] (q.e.p.d.), filed a cassation appeal against judgment No. 167-2011, delivered at 3:00 p.m. on April 27, 2011, issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, both in the criminal and civil aspects. As grounds for the criminal conviction, he invoked the violation of due process and lack of reasoning in the judgment, due to incorporation of illicit evidence; disregard of the principle of in dubio pro reo, as well as violation of the rules of sound criticism (sana crítica); illegitimate reasoning due to absence of assessment of elements of decisive value for the solution of the case; erroneous application of Articles 345 and 341 of the Criminal Code, with violation of numerals 2 of the Organic Law of the Judicial Branch and 39, 41, 46 in fine and 154 of the Political Constitution; lack of reasoning for the imposed penalty and injury to the principle of proportionality; also the lack of reasoning regarding the order to pay personal costs. Regarding the civil conviction, as the sole ground for challenge he claims: “Lack of reasoning in the judgment. Illegal omission of a ruling regarding the compensatory civil action by the Procuraduría General de la República. Violation of the Principle of Congruence for Citra Petita. Violation of due process and principles of effective judicial protection and access to justice. Violation of Articles 1, 142, 184, 361, 363, 369 of the Criminal Procedure Code, Articles 2, 5, 152, 153 of the Organic Law of the Judicial Branch; 39 and 41 of the Political Constitution, and 155, 277 of the Civil Procedure Code” (Cfr. page 17048 back and 17049 front). He explains that the trial court omitted a ruling on the compensatory civil action filed by the Procuraduría General de la República against his client, with the following arguments: (i) Not all of the accused had participated in the accused criminal acts. (ii) Therefore, there is no damage for which all the defendants and eventually third parties must be jointly and severally liable. (iii) It was necessary to specify the damages and claims for each “group of jointly liable persons” (according to the determination made in the judgment); and not as was done, giving a global estimate and requesting condemnation as if all the defendants and the involved legal entities were jointly and severally liable for a total damage. (iv) The Procuraduría General de la República, in claiming social damage, could not demand the total joint and several liability of all civil defendants without differentiating each case among the diverse groups of jointly liable debtors. (v) A ruling on the matter obligated the Tribunal to break down the distinct groups of jointly liable debtors, to specify the attributed acts and, therefore, the damage they could have caused to the Instituto Costarricense de Electricidad and to the collective and diffuse interests represented by the Procuraduría General de la República. A task which, if carried out by the Tribunal, would involve it in tasks proper to the civil claimant, compromising the objectivity of the judges and violating due process. (vi) The civil defendant parties did not allege the defects of the civil action in prior stages, whereby they bear a share of responsibility in the Tribunal's inability to rule on the merits of the allegations, claims, and exceptions formulated. (vii) He claims the existence of a defective procedural activity, without its remediation being possible. The petitioner points out that if a defect exists in the claims of the civil action, it is not admissible to expect the civil defendant to alert about it, and on the contrary, if the civil claimant acted deficiently, it is their responsibility; the foregoing, as ordered by the principle of disposition (principio dispositivo) and its corollaries, the sub-principles of availability by the interested party, of party initiative, of congruence, and of waiver. Regarding the passive joint and several liability and the determination of the validity of the claims of the claimant: “… it is clear that these are aspects of a substantive nature that must ultimately be determined by the Judges, in accordance with the facts deemed accredited in the case, and not a formal defect relating to the admission or processing of the civil action that should have been prevented according to the rules of remediation in numeral 15 of the Criminal Code of Rite.” (Cfr. page 17052). Later he adds: “If according to the facts deemed accredited by the sentencing tribunal 'there is no damage for which all the accused and eventually third parties must be jointly and severally liable' and it is determined that the Procuraduría General de la República 'could not demand a total joint and several liability from all the civil defendants, without differentiating, as was appropriate in this case, among the different groups of debtors', it is true that it is in no way incumbent upon the tribunal to 'break down the different groups of jointly liable debtors, determine the specific acts attributable to them, and determine the eventual damage those acts could have caused.' And effectively it cannot do so by virtue of the principle of congruence, the principle of disposition, and out of respect for the right of defense of the civil defendant. From this perspective and being clear that the 'defects' pointed out by the tribunal are of a substantive nature, the tribunal should have resolved, according to the definitive elements, the matter relating to the civil claims.” (Cfr. page 17052). He questions the criterion expressed by the tribunal, as he considers that substantive defects such as those invoked could not be subject to remediation, and on the contrary, the situation described by the tribunal obligated them to rule on the merits of the civil actions formulated and adds: “… the tribunal must rule in accordance with what is alleged and proven by the parties: The judge knows no other facts than those the parties invoke, nor other evidence than that which they present. Their judgment must confine itself within the limits of the claims deduced by the claimant and what the defendant knows or disputes; if it goes further, it will be ultra petita if it resolves more than what was requested, or extra petita if it resolves outside of what was requested, and both hypotheses produce the nullity of the ruling for violating the principle of disposition by resulting in incongruent judgments. That is why this characteristic has been called the 'principle of congruence' of judgments, and according to it, the tribunal must resolve everything the parties request, but no more nor less…” (Cfr. page 17054). He indicates that, in addition to incongruence for extra or ultra petita, there exists incongruence for citra petita (or minima petita), when one of the points requested is left unresolved, in violation of what is established in Article 155 of the Civil Procedure Code, which states: “judgments must resolve each and every one of the points that have been the subject of debate…”; as also regulated by Article 361 subparagraph e) of the Criminal Procedure Code, regarding deliberation and voting. All of which generates a defect in the ruling, as established in Article 369 subparagraph g) in relation to Article 361 subparagraph e) and 363 of the Criminal Procedure Code. Therefore, the tribunal should have resolved, and in view of the errors committed, declared the filed civil action without merit, with the petitioner having to assume the consequences of their negligent action. He explains that as an effect of the request presented by the party, the preventive seizure of assets owned by [Name018] was ordered, specifically, the Property registered with the Public Property Registry, Province of San José, number [Value052], vehicles with plates [Value053], [Value054], [Value055], and [Value056]. All of which caused him damages and losses, given the immobilization of his assets and the impossibility of freely disposing of his property. Furthermore, the declaration of the civil claims without merit should have generated the condemnation for damages and losses to the petitioner. He states: “The illegal maneuver carried out by the tribunal regarding the failure to rule on the merits of the compensatory civil action has as its objective and consequence the rejection of the clearly appropriate condemnation for damages and losses. Thus, although the lifting of the seizures is ordered, the tribunal orders that 'as a ruling on the merits of the civil actions and the claims formulated has been omitted, the lawsuit has not been definitively dismissed, which is the normative requirement for the appropriateness of the condemnation for damages and losses, and on the contrary, the parties may resolve their differences in the civil jurisdiction, so that a full alignment does not exist between what is provided by numeral 277 of the Civil Procedure Code and the situation presented in this process, without it being possible to extend the scope of numeral 277 of the Civil Procedure Code via interpretation, because that would imply an extensive interpretation of a punitive norm.' The illegal referral to another jurisdiction avoids the just compensation ordered by procedural law due to the indicated financial impact. In this way, the tribunal deliberately and illegally releases the civil claimant from the obligation to compensate for the damages and losses caused, leaving it at their discretion to resort to another jurisdiction or not to do so, preventing the appropriate compensation.” (Cfr. pages 17057 and 17058). He requests that the challenged judgment be reversed in this aspect and that the compensatory civil action filed against [Name018] (q.e.p.d) be declared without merit, and that the Procuraduría General de la República be ordered to pay the damages and losses caused by the ordered preventive seizure. In the alternative, that the judgment be annulled in this aspect and that a retrial of the case be ordered. B. Subsequently, upon the death of the defendant [Name018] (q.e.p.d), Attorney Hugo Santamaría Lamicq requests that a judgment of definitive dismissal (sobreseimiento definitivo) be issued in favor of his client (cfr. pages 171948 and 171949, 171980, 173380 to 173382). The petitioner explains that the defendant [Name018] died at 11:20 p.m. on November 17, 2011, as stated in Certificate of Declaration of Death number 118392 (which is attached); therefore, the appropriate course is to issue a judgment of definitive dismissal for extinction of the criminal action, since ruling No. 167-2011 issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, as the cassation appeal has been filed against it, is not final. The foregoing, as provided in Article 30 subparagraph a) in relation to 311 subparagraph d) of the Criminal Procedure Code. Regarding the compensatory civil action, he states that as it cannot subsist by application of the principle of accessoriness, he requests the immediate lifting of the seizures filed by the Procuraduría General de la República on the property registered with the Public Property Registry, Province of San José, number [Value052] and the vehicles with plates [Value053], [Value054], and [Value056]. In addition to this, he requests that the cancellation of the mortgage granted due to a precautionary measure that is now non-existent be ordered, adding: "By a resolution at four twenty in the afternoon on November eight, two thousand four, of the Criminal Court of the Second Judicial Circuit of San José, among other precautionary measures, my defendant was ordered to provide a real bond of 200 thousand dollars (United States currency), which was constituted by granting a first-degree mortgage on Property registered with the Public Property Registry, Province of San José, number [Value052], in favor of the Supreme Court of Justice for that amount. This precautionary measure was lifted in the year two thousand eight, without the respective lien being canceled" (Cfr. page 171949). He requests that what has been sought be resolved, it being necessary only to corroborate the death of [Name018] (q.e.p.d.). THE FORMULATED APPEAL IS RESOLVED. First Section.- The request for dismissal for extinction of the criminal action is accepted.- For the purpose of resolving the petition for dismissal, it is necessary to consider the following aspects: (i) The accused [Name018] (q.e.p.d.) was charged with acts described throughout the accusation formulated by the Public Ministry (from page 422 to 434) and admitted by the Criminal Court of the Treasury and Public Function, through a resolution at four o'clock in the afternoon on October seven, two thousand eight (cfr. pages 10421 to 10816). (ii) After the oral and public trial was held, by a majority vote, [Name018] (q.e.p.d.) was declared: "... co-perpetrator responsible for a crime of CORRUPTER'S PENALTY for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY (COHECHO IMPROPIO) regarding [Name027], and responsible as perpetrator of a crime of CORRUPTER'S PENALTY for PROPER BRIBERY (COHECHO PROPIO) in relation to [Name026], both to the detriment of PROBITY IN PUBLIC FUNCTION, being sentenced to FIVE YEARS OF PRISON for the first and FIVE YEARS OF PRISON for the second, for a total of TEN YEARS OF PRISON, a sanction that must be served in the place and manner determined by the respective penitentiary regulations once the pretrial detention that he may have served has been deducted." (iii) Attorney Hugo Santamaría Lamicq, in his capacity as defense counsel for the defendant [Name018] (q.e.p.d.), challenged the referred judgment. (iv) The defendant [Name018] (q.e.p.d.) died in San José, in the Intensive Care Unit of the Hospital San Juan de Dios, at 11:20 p.m. on November 17, 2011, from respiratory failure, exacerbation of COPD COPD IV (Cfr. pages 171950 and 171981). (v) But in addition to the argument presented by the technical defense of the defendant, this Chamber observes that an additional cause for the extinction of the criminal action has occurred: the statute of limitations (prescripción). According to the parameters established supra on the matter of the statute of limitations for the criminal action, it is established that the initial statute of limitations period for the criminal action was five years for the crime of corrupter's penalty for aggravated corruption in the modality of improper bribery (cohecho impropio) (according to the relationship of Articles 31 of the Criminal Procedure Code; as well as 340, 342, and 345 of the Criminal Code, since the maximum term of the penalty is five years); while in the case of the crime of corrupter's penalty for proper bribery (cohecho propio), the statute of limitations period is six years (according to the relationship of Articles 31 of the Criminal Procedure Code; as well as 341 and 345 of the Criminal Code). Given the impossibility of applying Article 62 of Law No. 8422, it must be considered that after the start of the criminal procedure, those indicated periods (five and six years, respectively) are reduced by half for the purpose of interruption and suspension of the statute of limitations (i.e., two and a half years, and three years, respectively). The case file shows that the accused [Name018] (q.e.p.d.) was questioned on the first of November, two thousand four (cfr. page 767, Volume II), and the next act interrupting the statute of limitations occurred when the preliminary hearing was first convened (as established by Article 33 of the Criminal Procedure Code), a procedural act that occurred on September ten, two thousand seven (resolution at one thirty in the afternoon on December ten, two thousand seven, pages 8452 and 8453, Volume XX). Consequently, the extinction of the criminal action was caused, but only with regard to the first of the attributed crimes, i.e., for the crime of corrupter's penalty for aggravated corruption in the modality of improper bribery (cohecho impropio). In any case, the death of the accused [Name018] (q.e.p.d.) having been proven, in accordance with what is established in subparagraph a) of Article 30 of the Criminal Procedure Code, the criminal action established against him is declared extinguished, and consequently, according to what is provided in Article 311 subparagraphs d) and e) of the same normative text, the definitive dismissal (sobreseimiento definitivo) is ordered in his favor for one crime of CORRUPTER'S PENALTY for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY (COHECHO IMPROPIO) regarding [Name027], as well as for a crime of CORRUPTER'S PENALTY for PROPER BRIBERY (COHECHO PROPIO) in relation to [Name026], both to the detriment of PROBITY IN PUBLIC FUNCTION. By virtue of what has been resolved and for procedural economy, a ruling on the grounds of the formulated appeal regarding the criminal liability of the defendant [Name018] (q.e.p.d.) is omitted.

Section Two.- Regarding the civil claims.- Concerning the civil claims filed, this Chamber has already accepted the objections raised by Attorney Cristian Arguedas Arguedas, who challenged the decision of the trial court to omit a ruling on the civil actions filed by the Procuraduría General de la República and the Instituto Costarricense de Electricidad; applying the extensive effect and ordering a remand for a new proceeding in accordance with the Law on said claims. However, as has been decided on other occasions (Cf. of the Tribunal de Casación Penal, votes Voting Record 492-F-1998, at ten hours twenty minutes of July thirteenth, nineteen ninety-eight; Voting Record 437-2006 at nine hours of May twelfth, two thousand six; as well as of the Sala Tercera of the Corte Suprema de Justicia, votes Voting Record 861-2002, at ten hours of August thirtieth, two thousand two and Voting Record 67-2004, at eleven hours five minutes of February sixth, two thousand four) a judgment of dismissal or acquittal does not imply an impossibility to rule on the civil action or its automatic rejection; furthermore, the Sala Constitucional of the Corte Suprema de Justicia, in vote Voting Record 3603-93 at fourteen hours and two minutes of July twenty-seventh, nineteen ninety-three, established that granting a civil action for damages in an acquittal judgment did not constitute a violation of the guarantee of due process or the right of defense: "THIRD: Regarding the point under analysis, this Chamber considers that there is no violation of the principles of due process in the appealed judgment, since articles 11 and 398 of the Code of Criminal Procedure provide the necessary legal basis to allow the judge to rule on the Civil Action for Damages and grant it even when the judgment is one of acquittal. FOURTH: In relation to the acquittal judgment, there are several circumstances under which it can be issued, but in all cases of an acquittal judgment, what is affirmed is the impunity of the accused, without this implying that his innocence is being affirmed because not in all cases of acquittal does that happen. Thus, the content of an acquittal no longer implies the non-existence of the crime, but has varied to become a negative institute whose content translates into the non-punishability of the accused; however, starting from the fact that penal action and civil action are different and independent from each other and proceed together only for purposes of procedural economy, the fact that one is acquitted in terms of the penal action does not imply that one must also be acquitted in terms of the civil action. Thus, acquittal for purely penal reasons does not prevent a ruling on the civil action and specifically its acceptance by the penal authority, in accordance with article 11 of the Code of Criminal Procedure, which, in relation with article 398 of the same normative body, empowers the Judge so that even when acquitting, they order the restitution, indemnification, or repair claimed. As such, the application of such articles by the judge obeys compliance with the principle of legality, which is a fundamental guarantee integral to Due Process. Therefore, it is not possible to admit that the Court failed to comply with Due Process, as its action is fully protected by procedural norms." The preceding citation, despite mentioning norms of the Code of Criminal Procedure, is fully applicable to what is regulated in the current Código Procesal Penal. On the subject, the third paragraph of article 40 of that normative body provides: "The acquittal judgment shall not prevent the court from ruling on the civil action for damages validly exercised, when it is appropriate." A hypothesis equally applicable in the case of final dismissal judgments, whether due to the statute of limitations for the penal action (since the grounds for civil prescription are different from those established in penal matters), or due to the death of the civil defendant, although in this case the procedure established in the civil jurisdiction must be followed in order to provide representation in the penal process to the succession of the civil defendant [Nombre018] (deceased). A thesis in accordance with the provisions of article 96 of the Código Penal: "... The extinction of the penal action and of the penalty shall not produce effects with respect to the obligation to repair the damage caused, nor shall it prevent the confiscation of the instruments of the crime." For procedural economy, an express resolution on the formulated objections is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the claims of the civil action for damages of interest.

Section Three.- Regarding attachments and others. Attorney Hugo Santamaría Lamicq requests the lifting of the attachments managed by the Procuraduría General de la República on the property inscribed in the Registro Público de la Propiedad, province of San José, number [Valor052], and vehicles with license plates [Valor053], [Valor054], and [Valor056]; he also requests that the cancellation of the mortgage granted by reason of a precautionary measure that is currently inoperative be ordered, adding: "By resolution of sixteen hours and twenty minutes of November eighth, two thousand four, of the Juzgado Penal of the Segundo Circuito Judicial de San José, among other precautionary measures, the provision of a real security bond of 200 thousand dollars (United States currency) was imposed on my client, which was constituted by granting a first-degree mortgage on the Property inscribed in the Registro Público de la Propiedad, Province of San José, number [Valor052], in favor of the Corte Suprema de Justicia for that amount. Said precautionary measure was lifted in the year two thousand eight, without the respective lien being canceled" (Cf. folio 171949). In the case under review, this Chamber verified that indeed, by means of a resolution at fourteen hours and thirty minutes of March eleventh, two thousand five, the Juzgado Penal of this judicial circuit accepted the attachment request made by the Procuraduría General de la República and, regarding the accused [Nombre018] (deceased), ordered the following assets: 1) Volkswagen brand vehicle, model 2001, license plates [Valor053]; 2) BMW brand vehicle, model 1989, license plates [Valor054]; 3) Mercedes Benz brand vehicle, model 1985, license plates [Valor055]; 4) Toyota brand vehicle, model 1976, license plates [Valor057]; 5) properties of the Partido de San José, registration numbers [Valor058] and [Valor052] (cf. folio 84 of the civil action for damages file). However, in a later resolution (at eleven hours of July twenty-first, two thousand five, folio 311 of the civil action for damages file) and at the request of the defense counsel for [Nombre018] (deceased), the previously ordered attachment was lifted regarding the property of the Partido de San José [Valor058] because said property was subject to the family asset regime. Nevertheless, in view of the remand ordered for the discussion of the civil claims, the request for cancellation of the executed attachments is denied. On the other hand, this Court verifies that by means of a resolution at sixteen hours and twenty minutes of November eighth, two thousand four, the Juzgado Penal of the Segundo Circuito Judicial de San José imposed on the defendant [Nombre018] (deceased), among other precautionary measures, the provision of a real security bond for the sum of two hundred thousand dollars (cf. folios 445 to 468 of the Precautionary Measures File). In order to cover the real security bond imposed, the accused constituted a first-degree mortgage on property number [Valor052], by means of deed number [Valor059] of notary [Nombre086] (cf. folios 481 to 486 of the Precautionary Measures File). Consequently, the trial court is ordered to proceed with the return of any security bond rendered in favor of [Nombre018] (deceased), under the concept of a precautionary measure; ordering the cancellation of the first-degree mortgage on the property inscribed in the Registro Público de la Propiedad, Province of San José, number [Valor052], in favor of the Corte Suprema de Justicia, granted as a real security bond for the sum of two hundred thousand dollars.

XIV.- APPEAL FORMULATED BY THE MINISTERIO PÚBLICO. Attorneys Maribel Bustillo Piedra and Criss González Ugalde, representatives of the Ministerio Público, file an appeal on points of law by adhesion to the appeals on points of law filed by the parties, against resolution 167-2011, of 15:00 hours on April 27, 2011, issued by the Tribunal Penal de Hacienda of the Segundo Circuito Judicial de San José. In the sole ground invoked, an "erroneous interpretation of the constitutional norm of article 24 of the Constitución Política and non-application of numeral 7 of the same normative body" is alleged (Cf. folio 171422). They explain that in this same case, the Tribunal Penal de la Hacienda Pública of the Segundo Circuito Judicial de San José, by means of a resolution at eight hours of May fourteenth, two thousand ten, ordered: "SECOND PART: By unanimity, the protest for defective procedural activity is partially rejected. There is no ground to declare the evidence referred to in points 563, 564, 574 to 581, 584, and 585 lawful, and consequently not to admit it as evidence for better resolution either (...)". The foregoing in response to a protest raised by them, subsequent to the judge of the intermediate stage, in the order to commence trial, denying the use of the evidentiary material related to various judicial assistance requests addressed to the Republic of Panamá, specifically evidentiary points 563, 564, 574 to 581, 584, and 585. The base argument for the exclusion of the evidence alluded to the need for a request by a Costa Rican judge to collect it, as an order for the lifting of bank secrecy had to be issued. They state that, of relevance, it was established: "-under the protection of the Costa Rican Fundamental Law, the restriction of the right to privacy for the investigation of penal matters is appropriate whenever: i) there exists an order from a Court of the Republic that so determines, a condition required by the cited constitutional norm as it establishes that it is the 'Courts of Justice' whose competence it is to order the seizure, search, or examination of private documents, a requirement also stipulated in articles 2 and 3 of Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications, No. 7425, and 107 of the Ley Orgánica del Poder Judicial, among others; and ii) when it is "absolutely" indispensable for ascertaining the truth, in accordance with the constitutional provision and the ordinary norms reviewed, with article 2 of the special legislation determining its utility as evidence of some criminal conduct.(...) Hence the jurisdictional authorization, far from being a mere formality, legitimizes the intervention ordered in the private sphere of a person, attributing to such an organ the responsibility of admitting it only when it is strictly indispensable. (.. ) In summary, the impartial, independent, and previously constituted judge is the competent organ to make the decision to affect the right to privacy of the holder (as has also been interpreted by the Sala Constitucional, among others, in resolution 1427-1996). It is not, then, a function nor a power of the representatives of the Ministerio Público, nor of the Fiscal General de la República, to request and ascertain confidential information about persons. As interpreted from the constitutional norm cited above, the system of guarantees in force in Costa Rica determines that the only competent organ to weigh and order the interference in the private sphere of persons is a Court of Justice of the Republic. (.. ) Finally, it is important to highlight that although bank secrecy does not have a constitutional rank but a legal one (in this sense, for example: resolutions 3229-1995 and 5507-1994 of the Sala Constitucional of the CSJ), the truth is that insofar as it entails the protection of the privacy of checking accounts, it is a guarantee in favor of the account holders that a prior jurisdictional authorization exists to ascertain its content. (...) With regard to the privacy of other forms of registration of information of a private nature, regardless of the place where such data is found, the conditions stated in the constitutional norm and its legal development persist when its evidentiary effectiveness is sought in a local judicial process. In other words, if for the purposes of a criminal investigation the seizure and analysis of private documents protected in a financial entity located abroad, which has no legal domicile in the Costa Rican territory, is required, the guarantees and requirements mentioned in the previous section must be met. Acting contrary to this implies the violation of the fundamental right described and its unlawfulness, as determined by the second paragraph of numeral 181 of the Código Procesal Penal. (...) To conclude, the obtaining of private evidentiary elements originating from financial entities located abroad requires the observance of the same guarantees that govern the collection of such information with respect to sources located on national soil. Thus, if jurisdictional authorization is part of the condition for ascertaining the content of bank accounts, operations, and other financial data contained in local records, this requirement also governs the obtaining of data of a similar nature from foreign sources. Before being a mere requirement, this condition determines that, prior to that interference, a jurisdictional authority instituted for that function is the one that proceeds to assess the proportionality of the impact on that right; that is, the necessity of the action, as well as its suitability to achieve the intended purpose, and the conformity between the latter and the measure. Only after this exercise has been performed by whomever has the competence and legitimacy to do so, does the intervention in the aforementioned sphere of protection justifiably occur, and the data obtained in national and international territory is clothed with lawfulness. (...) Therefore, if a jurisdictional authorization is constitutionally required for the limitation of the right to privacy, it should have been sought in this manner before the request for private information, especially since, in all matters, internal Costa Rican law is respected for its request and execution. (...) It is important to indicate that the so-called jurisdictional order is not directed at the organ of the requested country, in this case the competent authority of Panamá, so that it lifts the privacy of the holder of that fundamental right; rather, it has the effect of guaranteeing this holder, internally, the prior review of the judge invested to perform said function. Thus, such authorization extends insofar as the concurrence of the requirements demanded by our domestic legal order is considered, under the principle of proportionality and due process. It is not, then, a limitation on Panamanian sovereignty, given that the jurisdictional resolution is not directed at the mentioned State, but rather is a requirement of our own domestic law which must be respected. Consequently, a harmonized interpretation of the TALM with the constitutional block determines the validity of the latter, given that the Treaty does not have the power to disapply article 24 of the Constitución Política. (...) In sum, the reasoned order of a Court of Justice of the Republic lifting the guarantee of privacy is what clothes with legitimacy and makes reasonable the interference of the persecutorial power in that sphere of action of persons" (Cf. folios 171423 to 171425). They explain that at the beginning of the investigation, based on various indications, it was considered that the accused, in order to evade judicial and administrative controls, had opened bank accounts in the name of legal entities in the Republic of Panamá, attempting to eliminate traces of the crime (with accounts outside the Costa Rican territory); for which reason, the Ministerio Público, upon analyzing the regulations, deemed it appropriate to use the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panamá (TALM) and request international judicial cooperation, since the basis of that cooperation "lies in the territorial limitation of the scope of competence of state jurisdictions, in the impossibility of the authorities of the requesting State to gather evidence outside its jurisdictional territory, from 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 must be gathered. This cooperation thus aims to overcome borders, ensuring that these are not an obstacle for the investigation of crimes by the competent authorities and that criminals do not find refuges and subterfuges where they can hide, both materially and legally, due to legal labyrinths" (Cf. folio 171426). They consider that when the Preamble establishes the desire to strengthen and facilitate cooperation, with full respect for the internal legislation of each State, it means "that at the time of its subscription, all the States Parties, attending to their own legislation, are legitimated regarding their internal legislation for the subscription of said treaty, because said legal instrument does not contravene the constitutions and legislation of each of the States Parties. Now, article 2, point 5 of the TALM is the one that indicates the way it will be processed, specifically determining: 'All requests for assistance that are formulated under this Treaty shall be processed and executed in accordance with the laws of the Requested State'." Therefore, the petitioners consider that the actions requested within Central American countries in criminal matters must be executed in accordance with the norms of the State of execution, that is, the procedural norm of its own country. They detail the procedure followed to obtain the excluded evidence, pointing out that requests were made from the Fiscalía General to the Procuraduría General de la República of Costa Rica; which, in its capacity as central authority of the referenced treaty, sent the request to its counterpart in Panamá, that is, the Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional; so the request could be transferred to the Procuraduría General de la Nación de la República de Panamá, which sends the requirement to the Fiscalía de Panamá, the judicial authority authorized for lifting bank secrecy in Panamá. The Fiscalía notifies the Panamanian banking authorities and requests the bank account information. Once the data is collected, it is sent to the Fiscalía panameña, sent to the Procuraduría General de la Nación, then to the Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional, an office that forwards the information to Costa Rica, first to the Procuraduría General de la República de Costa Rica, then to the Fiscalía General. In support of their position, they cite the dissenting vote of resolution 499-2011 of the Sala Tercera of the Corte Suprema de Justicia and allege that in accordance with the accusatorial principle proper to a democratic State, investigative acts correspond to the prosecutor, hence they describe as contradictory and illegal that in our legal system the judge should be the one who had to make the request before the Procuraduría General de la República in its position as central authority, according to the treaty. They criticize the trial court's use of vote Voting Record 70-2005 of the Sala Tercera, as they believe it discusses a different case. They express opposition to the idea that, because our country requires a judicial authority to order the lifting of bank secrecy, this must be applied to lift bank secrecy abroad. They consider the scope given to article 24 of the Constitución Política to be extensive, as it affects Panamanian authorities and their territory; whereas the constitutional norm is limited only to our national territory. They state that in criminal matters, the principle of territoriality operates (as a manifestation of State sovereignty); therefore, the law of the state is applied to all inhabitants of its territory and for acts committed in its nation. When "Law No. 7425 on Registration, Seizure and Examination of Private Documents and Intervention of Communications" is alluded to, it is clear that, as a derivative of the constitutional principle of sovereignty, its competence corresponds to the Courts of Justice of Costa Rica, not to other States, and; when it refers to the registration, seizure, or examination of any private document, it refers to documents located in Costa Rica, not in other States. In support of their thesis, they return to the content of article 2 of Law 7425, which alludes to the judge's personal execution of the proceeding, to conclude that, the documents being abroad, the Costa Rican judge would lack competence due to the principle of sovereignty. They cite vote Voting Record 1061-2008 of the Sala Tercera, which, in reference to article 132 CPP, reaffirms the impossibility of a court being constituted in a place outside the national territory; likewise, they reproduce articles 1 and 2 of the Ley Orgánica del Poder Judicial, regarding the attributions granted to the Poder Judicial. They add: "The establishment of an order from a Costa Rican judge in that sense would be, on the one hand, an invasion of the competencies and attributions of foreign judicial authorities, and also empty actions, because if the private documents are not in our State, the order per se ceases to have meaning and validity" (cf. folio 171436). It is insisted that as established by the TALM, the execution in the collection of proceedings requested by the requesting State must be done in accordance with the norms of the requested State. They point out that upon reviewing jurisprudence from other countries, such as Spain, the majority opinion argues that proceedings carried out abroad through a letter rogatory cannot be supervised by Spanish legislation or jurisprudence, but rather in accordance with that of the country where they took place. They cite several pronouncements, among them the STS of March 26, 1995, which upheld the validity of telephone interventions carried out in Italy in accordance with Italian norms, acting in accordance with the provisions of the mentioned article 3 of the 1959 Convention on Mutual Assistance in Criminal Matters. Likewise, they mention English precedents (R v Quinn 1990, establishing that English judges cannot expect British procedural requirements to be followed in other jurisdictions), from Brazil (the Superior Court of Justice of Brazil, No. 2.382 SP (2010/055667-6) issued in Brasilia on October 26, 2010, ordered that what matters in judicial assistance requests is the law of the requested state). Finally, they conclude: "Consequently, given that article 24 of our Constitución Política is not applicable in Panamanian territory, while the TALM does have authority superior to Costa Rican and Panamanian laws, if the documentary evidence is located in Panamanian territory, and was collected in that territory, respecting the rights and guarantees established in the Constitution of that country, and is sent to our country in accordance with the procedure established in the TALM, said evidence is legitimate and must be incorporated into the criminal process" (Cf. folio 171439). The appellants consider that the elimination of the evidence from Panamá (evidences 563, 564, 578, and 579) led to the impunity of the facts of accusation 334 and 335, as well as the exercise of the punitive claim, for which they request that the appeal be granted, that evidence number 588 be kept intact, and the partial annulment of the appealed judgment be declared regarding the part of the accusation related to "[Nombre012] and the government of Taiwán" starting from fact number 323 of the relation of facts, and a remand for a new proceeding be ordered.

XV.- THE APPEAL FORMULATED BY THE MINISTERIO PÚBLICO IS RESOLVED.- All fundamental rights are born limited because they are exercised within society; however, the degree or magnitude of their impact is relative historically and spatially; that is, their scope or the establishment of restrictions vary over time and according to each legal system, in accordance with criteria of public order, morality, good customs, and rights of third parties (HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). In domestic law, the Constitución Política in article 28 establishes an unbreakable limit: Article 28.- No one may be disturbed or persecuted for the expression of their opinions nor for any act that does not break the law. Private actions that do not harm public morality or order, or that do not harm a third party, are outside the action of the law. Consequently, even though fundamental rights are subject to certain restrictions, only those necessary to make possible the validity of democratic and constitutional values are legitimate; it is not enough that it is useful, reasonable, and timely; there must be a pressing social need, hence it is said that only limitations aimed at satisfying a public interest are justifiable, always opting for those that restrict the protected right to a lesser extent (Cf. HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). The Ministerio Público raises its disagreement because evidence provided to the process (Nos. 563, 564, 578, and 579) was declared unlawful and essential from its point of view, but the indifference to the issue of the potential impact on fundamental rights cannot help but draw attention, for even though the sole ground formulated ("erroneous interpretation of the constitutional norm of article 24 of the Constitución Política and non-application of numeral 7 of the same normative body") contains in its title a reference to the constitutional norm that protects the right to privacy, the content of its allegation seeks to legitimize an interpretation on the application of the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panamá (T.A.L.M.), totally alien and opposed to the protection of that right as regulated in our legal system, even when it is clear that the relevant criminal process will take place within the national territory, making it obvious that in that context, respect for the principle of legality established in article 1 of the Código Procesal Penal was imposed: "No one may be condemned to a penalty or subjected to a security measure except by virtue of a process conducted in accordance with this Code and with strict observance of the guarantees, faculties, and rights provided for persons. The failure to observe this rule of guarantee established in favor of the accused may not be used to his detriment." And an action in accordance with the provisions of article 63 ibidem: "In the exercise of its function, the Ministerio Público shall adapt its acts to an objective criterion and shall ensure the effective fulfillment of the guarantees recognized by the Constitution, the International and Community Law in force in the country, and the law…" (the boldface does not correspond to the original), for ultimately, applying the T.A.L.M. did not have to be incompatible with respect for due process, the right of defense, and the fundamental rights enshrined in the Magna Carta. This Chamber was able to verify that the Juzgado Penal de Hacienda y de la Función Pública, by means of a resolution at sixteen hours of October seventh, two thousand eight, when issuing the order to commence trial, granting a defective procedural activity formulated by the defense of the accused [Nombre012], ordered the rejection of the evidence that interests the Ministerio Público here.

On that occasion, the judge recognized that the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama "... constitutes an international legal tool precisely to expedite cooperation among the States Party thereto, in what refers to criminal matters. One of the specific objectives of this instrument is to avoid processing this mutual legal assistance through diplomatic channels; this situation determines that the rules of the Bustamante Code or any other general provision for international cooperation are not applicable to the case, as a special rule exists... The provision presupposes a more expeditious, informal (in administrative aspects, not in judicial aspects), and agile procedure, to the benefit of the right to prompt and complete justice; dispensing with the diplomatic channel and the formal rigors established in the Convention on Private International Law." (Cf. folios 10570 and 10571). But even recognizing the importance or advantages of the instrument, its purposes of international cooperation in the processing of criminal proceedings, and the desire to prevent impunity for criminal conduct; later on, he reflects and specifies core points on the matter. He returns to the content of Article 24 of the Political Constitution and establishes: "As can be seen, the norm guarantees the right to the inviolability of private documents and communications of the inhabitants of the Republic... A first detailed approach to the subject reveals that the provision shows that the documents (the matter now before us) and records that are protected under said constitutional principle are private ones, which has a direct effect on the case, since the jurisprudential precedents presented by the Prosecution to justify its action are cases of public documents, which as such do not present any special regulation in our national system, except for issues of authenticity, which is not the subject of discussion... A clear sign of the truth of what has been said is that the Costa Rican Code of Criminal Procedure, regarding publicly accessible documents, allows direct investigation by the Public Ministry without any judicial intervention, since, as the name indicates, they are openly accessible documents without any protection of the right to privacy" (Cf. folio 10575). After reflecting on the safeguards provided by the legislator to dictate a regulation limiting the fundamental right to privacy (a law approved by a qualified majority), he mentions Article 201 of the Code of Criminal Procedure, which establishes: "Regarding the interpretation and seizure of communications and correspondence, the provisions of the special law referred to in Article 24 of the Political Constitution shall be followed." This is precisely the Law on Registration, Seizure, and Examination of Private Documents and Intervention of Communications, which requires the issuance of a duly reasoned jurisdictional resolution to admit any invasion into the sphere of citizens' privacy. The judge highlights that during the preliminary hearing, it was pointed out that treaties, as established in Article 7 of the Constitution, have a higher rank than the law, but that this superiority does not extend to the Political Constitution, whose Article 24 requires the issuance of an express and reasoned resolution. And he adds: "The Prosecution representation has maintained that said instrument is superior to the Political Constitution itself, which we must categorically reject. The Constitutional Chamber has maintained that international instruments on human rights have a validity superior to the Constitution itself insofar as they integrate the constitutional framework (See, among others, votes 68-98, 1319-97, and 2313-95, all from the Constitutional Chamber), but not all instruments, only those that have that specific normative framework, i.e., the subject of human rights" (Cf. folio 10576). A character that the judge correctly denies to the T.A.L.M., who adds: "Furthermore, the content of granting them a superior efficacy to the constitutional framework is not to repeal what is already stated in the internal charter, but to allow for better regulation or an expansion of the spectrum, which is not the scenario. (...) Regarding private information, which by constitutional provision required a court order to access, the logic within the constitutional framework was that the Criminal Court of the Second Judicial Circuit of San José, acting as Criminal Court for Treasury and Public Function, was the one called to order the lifting of the privacy of such information and to request (through the Office of the Attorney General of the Republic) the Panamanian authorities, in application of the aforementioned treaty, to forward it to the corresponding Judge in that nation so that he could analyze whether, in his opinion, it was appropriate (in accordance with their internal legal system) to authorize access to the information protected by the right to information" (Cf. folio 10576). The lawfulness of pieces of evidence numbered 563, 564, 574 to 581, 584, and 585 becomes controversial again at the start of the oral and public trial, when the Public Ministry attempts to revive them and incorporate them into the evidentiary material for the adversarial proceeding. It was alleged that the judge in the intermediate stage had been mistaken in classifying as illegal the evidence obtained from financial entities and the Public Registry of the Republic of Panama, related to Inversiones Denisse S.A. and linked to the accused [Name012], from Banco Alemán Platina, the company NCR Holding S.A., and UTS Holding S.A. associated with the defendant [Name018] (R.I.P.); insisting on the validity of the procedure, carried out in accordance with the provisions of the T.A.L.M.. However, the trial court, upon resolving the protest, denies it through the resolution issued at eight o'clock on May fourteenth, two thousand ten, using as support the stipulations of Article 24 of the Magna Carta, i.e., the right to privacy and the secrecy of communications, explaining that even though the constitutional precept opens the possibility of an exception to such right, it required the enactment of a law (approved by two-thirds of the deputies of the Legislative Assembly) which we know corresponds to Law No. 7425, Law on Registration, Seizure, Examination of Private Documents, and Intervention of Communications, which requires a duly reasoned order issued by a judge of the Republic, including an examination of proportionality (on the need for intrusion into the private sphere to ascertain the truth of the facts) and the verification of some indication of criminal activity. They state in the cited resolution: "... the judge, impartial, independent, and previously constituted, is the competent body to make the decision to affect the right to privacy of the holder (as also interpreted by the Constitutional Chamber, among others, in Resolution No. 1427-1996). It is not, then, the function, nor the authority, of the representatives of the Public Ministry, nor of the Attorney General of the Republic, to request and access confidential information about individuals. As interpreted from the aforementioned constitutional norm, the system of guarantees in force in Costa Rica determines that the only competent body to weigh and order the interference in the sphere of individuals is a Court of Justice of the Republic" (Cf. folio 13376, Volume XXVII). Further on, it is stated: "The national judge cannot ignore the verification of the guarantees in force in Costa Rica, not even when the investigation has been carried out outside the national territory or when, as in the present case, information originating from abroad is required. In this sense, the Constitutional Chamber, in pronouncement No. 4248-2001, warns about the importance of respecting the mechanism of veracity and authenticity of the content of documents requested from abroad, precisely in function of our constitutional guarantee of due process, asserting that the effects of the chain of custody must be assessed in the specific case for the purpose of establishing the lawfulness of the production and introduction of evidence into the process" (Cf. folio 13377 reverse, Volume XXVII). In summary, the Trial Court recognizes, in a criterion that this Court fully endorses, that obtaining private evidentiary elements originating from financial entities domiciled abroad requires compliance with the same guarantees provided for and required to obtain that information if said sources were located within our own national territory. Consequently, the jurisdictional order being part of the legal conditions imposed to access bank accounts, operations, and any other private financial data, it constitutes a mandatory requirement for both national and foreign sources; emphasizing that this is not a mere formality, it is a guarantee of due process that entails an assessment of the proportionality of the affected assets versus the investigation (cf. folios 13378 front and reverse, Volume XXVII). We see the Public Ministry testing, depending on the stage, various theses, always seeking the protection and legitimization of evidence that it processed in a manner more than incorrect—unlawful; a situation that ultimately generated a state favorable to the interests of the defendants and determined—to a large extent—their acquittal in the criminal aspect (when the reproach was linked to that evidentiary element). Its arguments were rejected one by one; during the intermediate stage: (i) it alluded to jurisprudence referring to public documents, not private ones; absolutely useless to support its position; (ii) it asserted a superiority of the Treaty over the Constitution; unacceptable (except in the matter of human rights). Later, in the plenary phase, it insisted on the lawfulness of the procedure, executed in accordance with the T.A.L.M.. However, and despite the fact that this Chamber does not agree with the judge of the intermediate stage on the need for a Costa Rican criminal judge to forward the request to a Panamanian judge who would also examine the legal appropriateness of the petition (as it is clear that the procedure is different); there is affinity and coincidence on a core theme of both resolutions: the legal requirement in our country for an express and duly reasoned resolution issued by a national guarantees judge, weighing and ordering (or denying) said diligence to the Public Ministry. Had the petition from the prosecutorial entity been resolved affirmatively (with the judge agreeing to the lifting of bank secrecy); the Public Ministry then had to (with the resolution authorizing the invasion of the defendants' privacy) follow the procedure as provided in the T.A.L.M.; that is, submit the judicial assistance request to the Office of the Attorney General of the Republic of Costa Rica (central authority at the local level); that the Office of the Attorney General would forward the Public Ministry's request to the National Director for Treaty Execution; from there, it would be sent to the Office of the Attorney General of the Nation (central authority in Panama), then passing to the Anti-Corruption Prosecutor's Office, which notifies the Panamanian financial entities to collect the pertinent information. Clarifying that in Panama, as provided by its Political Constitution, the competent authority to lift bank secrecy is the Public Ministry, unlike our country. In summary, this Court agrees that, as established by the accusatorial principle and as claimed by the Public Ministry in its challenge, the acts of investigation correspond to the prosecutor, and it is the prosecutor who, after requesting the guarantees judge and obtaining from them the duly reasoned resolution authorizing that investigative diligence, must request the Office of the Attorney General of the Republic to transfer the request to the National Director for Treaty Execution (in the sub examine, of Panama), and not the guarantees judge directly. But agreeing on that point does not validate or make disappear the absolute defect they incurred by managing the intervention or affectation of a fundamental right of a defendant on their own and directly before the Office of the Attorney General of the Republic, completely ignoring the function assigned in the Political Constitution to the guarantees judge within the national territory. As the Trial Court rightly points out when resolving this protest: "... the reasoned order of a Court of Justice of the Republic lifting the guarantee of privacy is what endows legitimacy and makes reasonable the interference of the persecutory power in that sphere of action of individuals. Far from consisting of a mere mandate, captured in a simple document, it represents the interdiction of arbitrariness and the subjection of public authorities to the Constitution, as it is the requirement of an objective assessment that in that specific case the requisites demanded by the legal system for said limitation are met. Acting without the described formal and substantial assessment is acting with one's back to the Fundamental Law and against the convictions and values shared by Costa Rican society" (cf. folio 13381). As indicated in another considerando, this Chamber does not share the arguments of minority vote No. 499-2011 of the Third Chamber of the Supreme Court of Justice, despite recognizing the accusatorial principle, which markedly determines our criminal procedural system; there is no doubt whatsoever about the leading and essential role assigned to the guarantees judge, who is called to intervene to weigh any investigative diligence that affects fundamental rights. In the sub judice, despite the validity and application of the T.A.L.M., which this Court fully endorses as a convenient and highly useful tool to combat crime and prevent impunity; it is not a legal instrument capable of depriving our Political Constitution of validity, which clearly and pristinely enshrines in Article 24: "The right to privacy, freedom, and secrecy of communications is guaranteed. Private documents and written, oral, or any other type of communications of the inhabitants of the Republic are inviolable. However, the law, whose approval and reform shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall establish in which cases the Courts of Justice may order the seizure, registration, or examination of private documents, when it is absolutely essential to clarify matters submitted to their knowledge. Likewise, the law shall determine in which cases the Courts of Justice may order the intervention of any type of communication and shall indicate the crimes in whose investigation the use of this exceptional power may be authorized and for how long. It shall also indicate the responsibilities and sanctions incurred by officials who illegally apply this exception. Judicial resolutions covered by this norm must be reasoned and may be executed immediately. (...)" (The bold text does not correspond to the original). From that perspective, there is no excess in applying or interpreting constitutional Article 24; because, as has been argued, the intervention of the guarantees judge to assess the suitability, necessity, or proportionality of the measure is only required for the procedure within the national territory, where, let us not forget, the process against the accused is being processed. That is, it is not a mandate that extends or is intended to be imposed on another State, in this case Panama, because obviously we do not have jurisdiction for that, and additionally, their regulations are different from ours, and in it, only the action of the Public Ministry is required to obtain the documentation of interest to the prosecutorial entity in our country. In this sense, the provision of 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." Thus, what corresponded to our country was for the Public Ministry to request the lifting of bank secrecy from the guarantees judge, as ordered by the Constitution, upon obtaining approval, to address the Office of the Attorney General to process the request before the Panamanian State; then, what corresponded to Panama was to receive the petition through its Office of the Attorney General, so that the Panamanian Public Ministry would be in charge of collecting the requested information; this was the only legally expected outcome, in compliance with the principle of territoriality and as a manifestation of the sovereignty of States. Of course, we do not share the criterion, in our view, biased and confusing, of the appellants, when seeking another argument they affirm that derived from the principle of constitutional sovereignty, it is not possible to apply "Law No. 7425 on Registration, Seizure, and Examination of Private Documents and Intervention of Communications" to other States. In reality, the Trial Court had absolute clarity on this point; it was never intended to apply Costa Rican internal law to Panamanian law. This is evident from the following quote: "It is important to indicate that the so-called jurisdictional order is not directed at the body of the requested country, in this case the competent authority of Panama, to lift the privacy of the holder of that fundamental right; rather, it has the effect of guaranteeing this holder, internally, the prior review of the judge invested to perform that function. So, such authorization is granted as long as the concurrence of the requirements demanded by the national legal system is considered, under the protection of the principle of proportionality and due process. It is not, then, a limitation on Panamanian sovereignty, given that the jurisdictional resolution is not directed at said State, but is a requirement of our own internal law which must be respected" (Cf. folio 13380). And it adds: "... However, when that information is managed regarding a State such as Panama, the procedure to be followed is that established in the TALM. Hence, the requesting State must channel the request for public documents through the national Central Authority, while the requested State must supply them with the signature of the official in charge of keeping them in custody and certified through the Central Authority, by means of a seal created for this purpose... Once those postulates are met, no other certification or additional authentication will be required. Documents certified according to the provisions of the Treaty constitute admissible proof of the veracity of the matters set forth in them, as regulated by Article 13, paragraph 3 of the TALM..." (Cf. folios 13380 reverse and 13381 front). In summary, it is not established in the judgment, nor endorsed by this Tribunal, that a judge of the Republic intends to impose national legislation or jurisprudence abroad; that argument is a distorted interpretation of what was resolved by the Trial Court, and consequently, the precedents they cite (jurisprudence from Italian and English cases) would be shared by this Chamber; since it is not projected in any way to apply constitutional Article 24 to the sister State of Panama. Our criminal procedural system chooses to embrace the principle of freedom of evidence, provided for in Article 182 of the Code of Criminal Procedure: "The facts and circumstances of interest for the correct solution of the case may be proven by any permitted means of proof, except for express legal prohibition." By virtue of this, the parties have the right to prove the aspects of interest in the process, with useful and pertinent proof, but with a single, insurmountable limit: its lawfulness, be it in the obtaining and/or incorporation phase into the process. That is, within our democratic rule-of-law system, all evidence obtained, produced, collected, or introduced into the criminal process outside the legal and previously established canons must be excluded from consideration within the criminal process, both due to a private interest of the defense (in protection of its rights and guarantees) and due to a superior, public interest, as without a doubt, the community must be interested in the correct application of the Law. As resolved by the criminal judge (in the intermediate stage) and the full court (in the plenary phase), the evidence identified with numbers 563, 564, 578, and 579 is what is called illegal evidence (prueba ilícita), that is, evidence obtained, incorporated into the process, or assessed in violation of fundamental rights, which entails prejudice to one of the parties in the process. In the context of criminal procedural law, this involves injury to due process (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); but also the violation of other fundamental rights of every citizen such as dignity, health, privacy of the home, correspondence, communications, etc.. In Costa Rica, illegal evidence (prueba ilícita) has no value, as established by Article 181 CPP: "Elements of proof shall only have value if they have been obtained by a lawful means and incorporated into the procedure in accordance with the provisions of this Code. (...)". That is, the investigation of the real or material truth does not authorize the use of illegitimate evidentiary means; this has been reiterated by jurisprudence from the Constitutional Chamber (votes No. 1739-1992, 1422-1994, 2334-2000, 9127-2001), the Third Chamber (votes No. 53-F-1992, 47-92-1992, 614-1995), as well as several pronouncements from the Criminal Cassation Courts (votes No. 66-F-1999, 422-2000, from the Second Judicial Circuit of San José). In the sub examine, as has been reiterated, the Public Ministry required, to access the evidence of its interest in this claim, a jurisdictional authorization that would weigh its lawfulness, usefulness, and pertinence, because consenting to it represented an invasion of a fundamental right (privacy), and that circumstance was fully known by the prosecutorial entity, within a criminal procedural system like ours, markedly accusatorial in nature (where the accusation and investigation are the responsibility of the Public Ministry) but where it was also decided to reinforce the role of the judge as controller of guarantees and fundamental rights, to approve or not certain evidentiary acts. There are numerous norms referring to the subject, highlighting Article 290 of the Code of Criminal Procedure, which establishes: "The Public Ministry shall carry out the diligences and actions of the preparatory investigation that do not require judicial authorization nor have jurisdictional content..." And even clearer, Article 277: "It shall correspond to the court of the preparatory procedure to carry out jurisdictional advances of proof, resolve exceptions and other requests typical of this stage, grant authorizations, and, in general, control compliance with the principles and guarantees established in the Constitution, the International and Community Law in force in Costa Rica, and in this Code... Prosecutors may not carry out properly jurisdictional acts, and judges, except for the exceptions expressly provided for by this Code, may not carry out acts of investigation." Due to the foregoing, the appeal filed by the Public Ministry is declared without merit.

XVI.- APPEAL FILED BY ATTORNEYS GILBERTO CALDERÓN ALVARADO AND MIGUEL HORACIO CORTÉS CHAVES, FROM THE OFFICE OF THE ATTORNEY GENERAL OF THE REPUBLIC.- A. Attorneys Gilberth Calderón Alvarado, Public Ethics Attorney (Procurador de la Ética Pública), Miguel Horacio Cortés Chaves, Deputy Public Ethics Attorney (Procurador Adjunto de la Ética Pública), in their capacity as representatives of the State, constituted as Civil Parties (Actores Civiles) and based on the provisions of Articles 1, 3 subsections a) and h), 20, and 21 of the Organic Law of the Office of the Attorney General of the Republic (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 Code of Criminal Procedure, 103, 105, and 106 of the Penal Code, 1045 et seq. and concordant of the Civil Code, 11, 41, and 153 of the Political Constitution, 5 of the Organic Law of the Judicial Branch, and 7, 113, and 155 of the Code of Civil Procedure, submitted a cassation appeal (visible in Volume XXXVI, folios 17300 to 17385) against the judgment issued by the Trial Court of the Second Judicial Circuit of San José, issued at three o'clock p.m. on April twenty-seventh, two thousand eleven, and they protest that the pronouncement omitted a decision on the merits regarding the civil actions filed by the Office of the Attorney General of the Republic against the civil defendants [Name015], [Name009], [Name004], [Name012], [Name024], [Name021], [Name001], [Name018], [Name007], 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 the Office of the Attorney General of the Republic participated in this process, exercising a civil action (acción civil) for the Social Harm (Daño Social) caused by the investigated acts of corruption, jointly and severally (solidariamente) suing all the defendants and some companies that in some way participated in the events; however, they accuse that this claim was not resolved by the sentencing court, alleging supposed deficiencies in the civil claims (demandadas civiles). Likewise, the aforementioned attorneys filed a sentence appeal (visible in Volume XXXVIII, folios 171982 to 172067) against the referenced ruling. Given the coincidence of claims in both challenges, the claims are set forth below, with some textual quotes from the second one, corresponding to the sentence appeal. B.- First ground.- "Contradictory reasoning which produces incoherence in the judgment" (Cf. folio 171985). The applicants indicate that even though the pronouncement acknowledges a criminal plan to corrupt public officials, it omits a resolution on the civil action for damages (acción civil resarcitoria) filed regarding the social harm caused, in violation of Article 142 CPP. They cite, in what is relevant, vote No. 334-2004, issued at 9:58 a.m. on April 2: «"The claim is admissible: Judges are obliged to reason their resolutions in a clear and precise manner, expressing the reasons of fact and law on which they base their, decision, as well as the indication of the value given to the means of proof - Article 142 of the Code of Criminal Procedure -, which implies that the ,reasoning of the judgment is subject to controls, to the evidence, and to the imposed procedural limits. When assessing the elements of conviction, the judge must rely on two essential criteria: their legitimacy and the reasonableness of the analysis, in effect to avoid a capricious and arbitrary examination, so that their decision responds to objective criteria, expressing with clarity, precision, and certainty the reasons that allow them to arrive at a legitimate and valid judgment, and which, in case of discrepancy, can be examined by a superior control instance, to determine whether the dictated decision has respected or not the fundamental principles and rights of the parties involved in the adversarial proceeding. " (Our underline).» (Cf. folio 171986). They assert that in the facts of the civil claims filed (which they reproduce in the document), a structured criminal plan was established by several of the civil defendants ([Name015], [Name035], and [Name009], along with the civil defendant companies Alcatel CIT and Servicios Notariales QC S.A), to corrupt several public officials with the purpose of benefiting economically, of favoring personal economic interests and those of the company Alcatel CIY, in the contracting of the 400 thousand cellular lines with the Instituto Costarricense de Electricidad. Moreover, they assure that this is indicated in the proven facts of the judgment, from which the following paragraphs are reproduced: «"48) Without specifying , exact date, but approximately from May 2000, the accused [Name015] and [Name035] plan or devise the idea of seeking, offering, and delivering gratuities consisting of money to.iiincionarios public officials who had interference n decision-making power regarding the I.C.E. contracts and within the political sphere.

The foregoing with the purpose of favoring the company Alcatel through the opening of public tenders for GSM cellular telephony and in the award of future tenders in this area, as well as to obtain for their benefit substantial sums of money. As part of their strategy, they agreed that the effective delivery of the money they promised to the officials would be done indirectly, through a third person, the accused [Name009]... "."50) Among the defendants [Name009] there is a relationship of kinship by affinity, since the wife of [Name015] is the sister of [Name009]. The ties of affinity and the relationship of trust, as well as the described link of [Name009] with the company Servicios Notariales QC S.A. and the handling of its account with Banco Cuscatlán, motivated [Name009] to join the planning and structuring of the aforementioned criminal plan; knowing that they would all personally benefit from a portion of the money coming from Alcatel CIT." "51) With the foregoing purpose, the accused [Name015], together with the convicted [Name035], by common agreement with the accused [Name009], decided to use the bank account of Servicios Notariales QC S.A. (...) as the recipient of the funds delivered by Alcatel CIT, to subsequently distribute them among the corrupt officials and politicians who will be indicated." "52) As part of the previously outlined plan, the convicted [Name035] and the accused [Name015] and [Name009], with the aim of concealing the payment of illicit bribes and justifying the million-dollar transfers of money in favor of the public officials, took advantage of the commercial relationship that had been maintained between Servicios Notariales QC S.A. and Alcatel CIT, where the execution of consulting agreements was represented by the company Alcatel Standard S.A." "56) In accordance with the plan devised with the accused [Name015] and the convicted [Name035] to corrupt public officials, among the tasks to be performed, it fell to the defendant [Name009] to receive the money from the company Alcatel CIT and make the illicit payments to the corrupt officials." "59) The company Alcatel CIT paid each of the amounts corresponding to the referenced contracts, and the convicted [Name035] together with the accused [Name015] and [Name009] obtained the money they used to pay the bribes to the public officials." "60) The accused [Name009], in accordance with the part of the plan he was responsible for carrying out, proceeded to make the deliveries of money to each of the officials indicated to him by the defendant [Name015] and [Name035] as shall be set forth." » They add that in the recitals section of the judgment, that criminal plan is taken as established, which evidently entails civil liability, citing several excerpts in support of that assertion. They conclude that the court's reasoning is "absolutely contradictory," on one hand determining that the civil defendants did participate in a common agreement in the criminal plan as corruptors, and on the other hand, omitting adjudication of the civil action filed against them; which in their understanding constitutes a violation of the principle of non-contradiction. They request that the judgment be declared null. C.- Second ground.- "Contradictory reasoning" (Cfr. folio 172006). It argues that the criminal acts demonstrated in the corruption trial caused serious social harm, as established in Article 38 of the Criminal Procedure Code (Código Procesal Penal) and as stated in the ruling, when at folio 1625 it was established: «"On the contrary, given his criminal involvement from the First Branch of the Republic, as well as the serious social harm caused and the significant amount received as a bribe, under no circumstance is he deemed deserving of its granting." (Highlighting is ours)» (Cfr. folio 172006). Harm to which the court repeatedly refers in its arguments, such that it justifies the crime and the penalties imposed; as illustrated in the judgment, among others, when analyzing the reproach against [Name012] or against [Name015]. Regarding the latter, the following quote from the ruling is reproduced: «"Thus, in the production of the social harm and injury to the legal right (bien jurídico), the greatest contribution was from [Name015], as he acts following a schema previously established for that purpose, he knew how to set the same in motion, define the "adequate" amount to make the promise and provoke its acceptance, among other actions revealing that he acted calculably at all times, not so [Name026], who was unaware of the noted illicit machination for the generation of the violation to the legal right (bien jurídico) and the social impact indicated, by not knowing, as he himself stated, that there were other people involved or the magnitude of the corrupting proposals of [Name015]. Hence, the greatest reproach regarding the generation of the harm also corresponds to [Name015]." (The underlining is not from the original)» (Cfr. folio 172007). The petitioners consider that if the judgment holds the existence of social harm as proven and that all the convicted acted under a single purpose (ensuring that the company Alcatel CIT was the awardee of the 400 thousand cellular lines), it was not possible - without incurring in contradictory reasoning - to fail to resolve the civil claim in this proceeding. They request that the ground be admitted and that the civil claim filed be resolved. D.- Third ground.- "Violation of substantive law by non-application of Articles 11, 41, and 153 of the Political Constitution, 5 of the Organic Law of the Judicial Branch, 1, 4, 6, 7, and 40 of the Criminal Procedure Code, 103 subsection 2) of the Penal Code, 1045 of the Civil Code, 7 and 155 of the Civil Procedure Code" (Cfr. folio 172009). They indicate that when the court established the impossibility of ruling on the merits of the civil action for damages (acción civil resarcitoria) filed by the Instituto Costarricense de Electricidad, as well as the one brought by the Procuraduría General de la República, Costa Rican law is violated: Article 3 of the Law of the Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional), Articles 11, 41, and 153 of the Political Constitution, because there is an obligation for judges: to resolve each and every one of the issues submitted for their consideration, without being able to leave the parties who have participated in a proceeding without a resolution that responds to their petitions. Article 41 establishes that access to justice, an effective, prompt, and fulfilled judicial protection (tutela judicial efectiva), absent in the appealed judgment regarding the civil actions filed by the Representation of the State. Later they invoke the principle of legality to emphasize the duty of the courts to resolve the matters submitted for their consideration; also the right to reparation for all harm caused, as well as the right to justice that is prompt, fulfilled, without denial, and in strict adherence to the laws. On the principle of legality, they cite vote No. 440:98 of 15:27 hours on January 27; they also refer: "The Principle of Legality in the State of Law postulates the special binding of the authorities to the legal system, based on the basic definition in which all authority must act to the extent that it is empowered to do so by the same legal system and by express text, hence the exercise of the jurisdictional function must be guaranteed under formal and material efficacy to the point that violations of mere legality become - by virtue of the principle - violations of due process (set of guarantees that translate into rights and obligations of the judicial process) and the corresponding right to constitutional legality and legitimacy as a means to apply substantive law" (Cfr. folio172012). They supplement the claim with the transcription of Article 5 of the Organic Law of the Judicial Branch, numerals 1, 4, 6, 7, and 40 of the Criminal Procedure Code, 103 of the Penal Code, 1045 of the Civil Code, and Articles 7 and 155 of the Civil Procedure Code. They invoke vote No. 619-2000, of 11:20 hours on June 9 from the Criminal Appeals Chamber (Sala Tercera): "The Political Constitution in its Article 41 establishes that every person shall find reparation for the injuries or damages suffered, in accordance with the law. Furthermore, it expresses that prompt and fulfilled justice shall be done to all, in strict accordance with the Law. A recognition of the right to reparation is observed in the constitutional system, always under the aegis of the corresponding legal provisions. Note that in matters of civil reparation, one of the legally permitted modalities to carry it out is pecuniary compensation. Likewise, it is worth saying that the Costa Rican Fundamental Law is clear in establishing that the jurisdictional function consists of hearing certain types of cases, resolving them definitively, and executing what has been judged (Article 153). Thus, if there is a judge who is competent to hear certain matters in particular, they shall comply with the pertinent legislation. This principle is reinforced by what is indicated in Article 5 of the Organic Law of the Judicial Branch, in the sense that it corresponds to the judge to exercise their authority and rule on matters following the written and unwritten norms of the legal system, according to their position in the hierarchical scale." The protest is reiterated for not resolving the merits of the actions filed, as well as the referral to the civil route to settle their claims, about which they indicate: «Doctrine has pronounced that "It is not consistent with the principle of prompt and fulfilled justice to send the victims to a civil process, after they have chosen a route, authorized by law, to resolve their conflicts. That is, one would have to start a new process, generating greater expenses and an evident delay in the decision. If criminal judges must handle civil matters to resolve civil actions, there is no inconvenience in continuing with the process to reach the respective ruling. In any case, difficult problems obtain a solution through the conscientious study of the judges, or as Núñez points out (1982, p. 26) '... once the system of the criminal judge is established, by force of experience, they will specialize 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 within the criminal proceeding files a civil action for damages (acción civil resarcitoria), they do so because they are choosing that route with the purpose of having their petition resolved within the same proceeding» (Sic. cfr. folio 172019). The appellants add: «It is through Access to Justice materialized through the administration of justice, that people 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. In this case, the same thing happened, this Procuraduría General de la República, within the criminal process, filed two civil actions against the accused and jointly and severally liable third parties (terceros civilmente responsables), and from the year 2004 to date, acts aimed at promoting those actions have been carried out, such as the very filing of the civil actions, clarifications to them, attachment liens, answering of appeals, and finally the attendance of almost a year of trial, where the thesis of the existence and collection of the social harm that the investigated acts of corruption generate was maintained. Hence, it is not understood how at the end of the trial, the Court determined through judgment that it is impossible for it to rule on the merits thereof, without having reason for it, a denial that causes irreparable harm to this Representation, as it becomes a denial of access to justice and of having the situations raised resolved, thus violating all the principles cited above, this aside from representing a denial of access to justice, a flagrant violation of the Principle of Effective Judicial Protection (Tutela Judicial Efectiva), and a rejection of the Principle of Prompt and Fulfilled Justice, it is a clear omission of the Judges of the Trial Court of their obligations, since within the same is the duty to resolve all the extremes that have been submitted for their consideration» (Cfr. folio172020). It partially reproduces vote No. 12224-2001, of 14:55 hours on November 28, from the Constitutional Chamber (Sala Constitucional): "... the activity that the parties and the judge carry out in the process tends towards a common end, which is to establish the existence of a will of the law over a certain good with respect to the plaintiff and the defendant in the cause being processed. The act by which the judge formulates this declaration is the judgment. In it, the jurisdictional function is summarized and the process is justified by it, because in this and through the judgment, the maintenance of the legal order becomes effective. The judgment must refer to a specific, concrete case, (sic) the judge not being able to issue resolutions in the abstract. Thus, this function - the jurisdictional one - obliges the judge to 'judge,' 'opine,' and 'evaluate' the facts subject to the dispute and adapt them to the current normative framework, therefore it contains a positive and precise decision on them, that is, it is an expression of what is considered by the judicial authority. The constitutional and legal mandate to 'definitively resolve the matters submitted to the knowledge of the courts of justice' (resolution number 6494-93)" (Sic. cfr. folio 172021). They question that the sentencing court had demonstrated the moral harm (daño moral) and despite that, stated impossibility to resolve the merits of the civil actions filed. On this they indicate: "The only valid and logical conclusion is that the impossibility referred to was to determine the quantum of the damages corresponding to each individual and this, by all appearances, does not make it impossible to resolve the merits of the civil actions and, if necessary, to refer this determination of the amount to the enforcement phase of the judgment, something that is authorized to them by law" (Cfr. folio 172022). It refers that jurisprudence from the Criminal Appeals Chamber (Sala Tercera) as well as from the so-called Criminal Cassation Tribunals (Tribunales de Casación) have agreed on the violation of the law when a ruling on civil aspects is omitted, a situation aggravated when absolutely nothing is resolved. In support of this, they cite the following resolutions: (a) from the Criminal Appeals Chamber (Sala Tercera) votes No. 165-F-91, of 9:00 hours on April 26, No. 105-2010, of 11:00 hours on February 17; (b) from the Criminal Cassation Tribunal (Tribunal de Casación Penal) votes No. 186-2001 of February 23, No. 601-F-98, of 9:25 hours on August 31; (c) from the Constitutional Chamber (Sala Constitucional) vote 8591-2002, of 14:59 hours on September 4. They consider that the violation of all the invoked law occurred and request that the resolved matter be annulled and that what is provided in the law be applied. V.- Fourth ground.- "Erroneous interpretation of numerals 1, 3, 20 and 21 of the Organic Law of the Procuraduría General de la República, 38 of the Criminal Procedure Code, 1, 190, 191, 196, 197, 199, 201, 203, 205 and 206 of the General Law of Public Administration (Ley General de la Administración Pública) and 105 of the Penal Code" (Cfr. folio 172029). They criticize that the trial court considered that the action of the Procuraduría General de la República, in this process, was not on behalf of the State, which is why there was an erroneous formulation of the civil claims, which should have had the State as a civil defendant, in accordance with the liability rules provided in the General Law of Public Administration (Ley General de la Administración Pública). That is, they consider that the error of the judges was to consider that there were more civil defendants besides those established in the civil actions filed. They refer: «This, because the judges carry out an analysis of Article 106 of the Penal Code, harmonizing it with Articles 1, 190, 191, 196, 197, 199, 201, 203, 205 and 206 of the General Law of Public Administration to conclude that the State also had to be a civil defendant together with the Instituto Costarricense de Electricidad. Those numerals that the resolution transcribes are erroneously interpreted, first, because it is the Procuraduría General de la República on behalf of the State who pursues the collection of the social harm caused by the illicit actions in their personal capacity of the accused in this case, so there is no logic in citing the articles in question in the resolution, much less in performing an interpretation for this case. Second, because those who should manage the "supposed liability" of the State are the private individuals, not the State against the State itself, since this is a basic instrument of administration (active subject) - administered (passive subject) relationships "it translates into the faculty of the administered to demand from the Public Administration that has inflicted an unlawful injury (lesión antijurídica) on them or that has breached a pre-existing administrative obligation imposed by the legal system, the compensation of their economic or non-economic sphere. ... This right may or may not be exercised by the aggrieved or injured party as it is optional for its holder, and the way to exercise it is by deducing the claims or suing against the obligated public entity." For the emergence of the obligation of reparation or compensation in a public entity, several conditions must concur, which are the following: 1) an action or omission attributable to the Public Administration, 2) an unlawful injury (lesión antijurídica) that the administered or victim does not have a duty to bear, and 3) a direct and immediate cause-and-effect relationship between the administrative action or omission and the unlawful injury (lesión antijurídica)" (Jinesta Lobo, Ernesto. Tratado de Derecho Administrativo. Tomo II. Responsabilidad Administrativa. San José. 2005. Págs. 97 y 98). Therefore, under the Court's approach, it is appropriate to ask the following questions: Was the State a civil defendant? Was the State civilly counter-sued? The answers to the previous questions are negative. The State was not a civil demandant, the State was not counter-sued. Then, why is this analysis done?, to determine a liability of the State that was not being requested or discussed, a liability of the State that was not alleged through the legal means established by procedural law, so there is no explanation from the Court, except to indicate that some of the accused were public officials.» (Cfr. folios 172030 to 172031). The appellants indicate that in this process, state liability was not ventilated because no private individual or administered party filed a civil lawsuit against the State «... for the "supposed liability" that only the Court finds strange by establishing it as a party within seven of the eight groups of joint and several liability (responsabilidad solidaria) that it subjectively determined, because it does not indicate what parameters it used to group the individuals and that the State was among them, or establish the causal nexus to impute the joint and several liability (responsabilidad solidaria) of the latter with the public officials, because the mere fact of holding the office is not enough for the State to be liable, but rather the conditions for it to concur must be demonstrated, and in this case, the Court does not make an exposition of the evidentiary elements that lead it to conclude that the actions of the accused are attributable to the Public Administration, nor does it establish the direct cause-and-effect relationship between the actions of the convicted attributable to the State and hence the unlawful injury (lesión antijurídica), but rather the Court simply limits itself to indicating in its resolution that; "The particularity of this process is that not all the accused had participation in all the accused criminal acts, but rather it starts from the intervention of groups of accused in specific acts, a circumstance that obliges the need to determine and specify each group of accused and jointly and severally liable third parties (terceros demandados civiles) that could be jointly and severally obligated among themselves, also in relation to specific acts and specific damages that those specific acts could have caused, thereby reaching the conclusion that there is no damage for which all the accused and eventually third parties must respond jointly and severally, which is the assumption upon which the civil claims were liquidated by the Instituto Costarricense de Electricidad and the Procuraduría General de la República. What could exist are damages caused by the criminal conduct of specific groups of accused, for which the accused of the group and eventually third parties would respond jointly and severally, independently of the eventual damages caused (sic) by other groups of accused. From the study of the accusation, and in application of the rules of joint and several liability already analyzed, the existence of the following groups of accused and civil defendants is determined that could be jointly and severally obligated among themselves, for the damages and losses (daños y perjuicios) that they eventually could have caused, regarding specific and determined facts, facts that have no relationship with each other, for the purposes of determining civil liability, even though some of the groups have certain natural or legal persons as a common denominator. 1.- [Name015], [Name009], [Name004], 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 of them in relation to the crimes of penalty of the corruptor attributed to [Name015] and [Name009] and aggravated corruption attributed to [Name004]. 2.- [Name015], [Name009], [Name001], 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 of this in relation to the crimes of penalty of the corruptor attributed to [Name015] and [Name009] and aggravated corruption attributed to [Name001]. 3.- [Name015], [Name009], [Name021], [Name024], 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 of them in relation to the crime of illicit enrichment attributed (as reclassified) to [Name021], and the crimes of illicit enrichment and physical aiding (favorecimiento real) attributed to [Name024]. 4.- [Name015], [Name009], [Name026], [Name012], 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 of them in relation to the crimes of penalty of the corruptor attributed to [Name015] and [Name009] and aggravated corruption attributed to [Name026] (criminal action suspended by opportunity criterion) and instigation to aggravated corruption attributed to [Name012]. 5.- [Name015], [Name009], [Name007], 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 of them in relation to 3 crimes of illicit enrichment attributed to [Name007]. 6.- [Name064], [Name018], [Name027], Alcatel Cit, the State and the Instituto Costarricense de Electricidad and Intelmar S. A., in relation to the acts of penalty of the corruptor attributed to [Name064] (already convicted) and [Name018] and aggravated corruption attributed to [Name027] (already convicted). 7.- [Name018], [Name026], the State and the Instituto Costarricense de Electricidad in relation to the crimes of penalty of the corruptor attributed to the former and aggravated corruption to the latter. 8.- [Name012] and the State in relation to four crimes of illicit enrichment attributed to [Name012]. (The highlighting is not from the original. Folios 1884 to 1886). Additionally, at folio 1887 it determines that "When the civil actors (Procuraduría General de la República and Instituto Costarricense de Electricidad) proceeded to liquidate claims in the manner they did, they leave the Court unable to rule on the merits thereof. To rule validly, the Court would have to disaggregate the different groups of joint and several debtors, determine the specific acts attributable to them, and determine the eventual damage that those acts could have caused to the Instituto Costarricense de Electricidad and/or to the collective and diffuse interests represented by the Procuraduría General de la República. Starting from the foregoing is how the civil claims could be assessed, which would have to be modified in accordance with the mentioned factual assumptions, which are the cause of the same. The foregoing is not a task that the Court can carry out, because it concerns extremes whose determination is the exclusive province of the parties and not of the Court, which if done would lose its objectivity and impartiality by supplying the deficiencies of the parties and would violate the principle of congruence, by ruling beyond what was requested."» (Cfr. folios 172032 to 172034). For the claimants, that analysis would be acceptable if some type of civil liability were required of the State, but in this case it is not. Thereby, they allege a violation of the principle of congruence and of the autonomy of the will of the parties; as new civil defendants were included, to whom liability is assigned, ruling beyond what was requested, surprising everyone, as it was in the judgment (after a process of almost seven years) when the new civil defendants are mentioned. They invoke vote No. 618-F-SI-2010, of 9:15 hours on May 20, on the principle of congruence: "(...) a principle by which the judge, when ruling in judgment, must adhere to what was requested by the parties. If they depart from the material claims of the complaint, they could incur in different defects. Ultra petita, if they grant beyond what is requested. Extra petita, when they add extremes never requested or debated by the litigants. Citra petita, in the event of omitting a ruling on points discussed between the parties. Likewise, there could be incongruence due to contradictory provisions in the ruling." Clear precedent, on how the petitions of the parties are what delimit the subject matter of the judicial debate. Later, it cites the following fragment of the ruling, visible at folio 1892: "The Procuraduría General de la República could not ignore, when formulating the civil action for damages (acción civil resarcitoria) and its claims, that the State and the Instituto Costarricense de Electricidad were also identified by law as joint and several obligors to respond for the damages and losses (daños y perjuicios) to the collective or diffuse interests, whose compensation is sought. The foregoing because in the eventual production of the damages and losses (daños y perjuicios), public officials from the Executive Branch, the Legislative Branch, and the Instituto Costarricense de Electricidad intervened." Further along "just like the Courts of the preparatory and intermediate procedure, the civil defendant parties could also have argued the noted defects of the civil actions for damages (acciones civiles resarcitorias) in the prior stages and not wait for the conclusions of the trial, in which case they also had their share of responsibility in the defects not being overcome and the Court being able to rule on the merits of the allegations, claims, and defenses (excepciones) formulated." From which the appellants criticize that an opinion is issued on a topic never discussed - the supposed state liability and its corresponding joint and several liability and compensation -, and by which, it is argued it was impossible to resolve the merits of the matter, but without that being an alleged claim. They believe that even if some of the defenders, when issuing their conclusions, mentioned the topic of state liability regarding the actions of public officials, it does not constitute a formal submission capable of being accepted by the court.

They insist that the Office of the Attorney General (Procuraduría General) filed civil actions to claim the damage caused (which affected the entire country), by the plan devised by the corruptors and the corrupt, to guarantee the bidding of the 400 thousand lines in exchange for bribes, which was established at folios 1216 and 1217 of the judgment. Therefore, the principle of consistency was breached by omitting a ruling on the civil claims and their demands, specifically, the condemnation for the social damage caused by the unlawful acts litigated in this case, by all the defendants. The principle of party autonomy was violated, because the judges, far from resolving the claims raised by the involved parties (as was their duty), attribute responsibility to the civil actors (without them holding the status of civil defendant), surprising all the duly constituted parties. They add: "The Court argues, in general terms and referring to the civil actors—ICE and the Office of the Attorney General—in light of acts that generate civil liability and in which public officials participate, that by Law they have liability, and that may be true, if it were a liability claimed by those they administer and if they were civil defendants, but this is not the case, because it is the State as such that is taking action to combat corruption by its officials. If the Court's criterion were accepted, then would the State or any autonomous institution that wished to denounce or pursue the corruption of its officials be civilly liable? Could the State or any autonomous institution not try to clean its house of corruption, without seeing itself civilly liable for the very acts it denounces? The argument is illogical and clearly improper. As indicated above, the Court errs in its decision, since it placed itself in a proceeding where liability is requested by an administered party against the State, but this is not the case, since in this proceeding it is the State itself that requests the liability of its corrupt officials, a liability to society" (Cf. folio 172039). They emphasize that the actors had chosen the criminal route to formulate their civil claims and the judges were competent to resolve them, therefore, they criticize and qualify as erroneous their decision to refer them to the civil route, based on an erroneous interpretation of the General Law of Public Administration (Ley General de la Administración Pública), the Organic Law of the Office of the Attorney General of the Republic (Ley Orgánica de la Procuraduría General de la República) (numerals 1 and 3) and Article 38 of the Code of Criminal Procedure (Código Procesal Penal). "The Court considers from its erroneous perspective, that since the State has liability, the Office of the Attorney General, representing collective and diffuse interests, as established by Article 38 of the Code of Criminal Procedure, should have claimed that liability against the State and by not doing so incurred a violation of Articles 20 and 21 of its Organic Law, which is also erroneous. While it is true that the Office of the Attorney General participated in this proceeding exercising a civil action for compensation (acción civil resarcitoria) for the affectation of collective and diffuse interests, pursuant to what is established in numeral 38 of the Code of Criminal Procedure, it is also true that, as a result of this activity, the other functions or representation that the Office of the Attorney General holds, according to its Organic Law, do not disappear..." (Cf. folio 172041). Further on they add: "In the sense indicated, it is clear that the power to exercise the civil action 'when dealing with punishable acts that affect collective and diffuse interests'; set forth in Article 38 of the Code of Criminal Procedure, is one more power provided by the legislator for the Office of the Attorney General to carry out its duties and the act of exercising this power, in no way could imply that it ceases to be what it is or to fulfill its other powers, namely considering, as the Court does, that this Representation, by exercising the power to file a civil action for punishable acts that affect diffuse and collective interests, which for the purposes of the proceeding is a 'standing to sue (legitimación para accionar)'; would cease to be the legal representative of the State, which is a 'legal representation granted by law'; has no legal basis and they are two completely different things. From this point of view, to interpret that in this proceeding there was a non-observance of our obligations contained in Articles 20 and 21 of the Office of the Attorney General of the Republic, for not having sued the State upon being considered civilly liable—in the Court's logic—meaning not suing our 'legal principal (representado legal)', is completely illogical and irrational, from a legal standpoint and would be contrary to our organic law and the mandate contained therein. Hence, the Court's reasoning becomes erroneous and therefore causes the appealed judgment to fall into the defect of erroneous interpretation due to the faulty assessment of the rules on which it is based, namely Articles 1, 20 and 21 of that regulatory body." (Cf. folio 172048 and 172049). Regarding the provisions of Article 38 of the Code of Criminal Procedure, they consider it clear that it confers upon the Office of the Attorney General one more power, but not a representation (which may or may not be exercised). They affirm an error by the Court in equating procedural standing (to sue) with legal representation (of collective or diffuse interests), then cite Article 1 of the General Law of Public Administration for the purpose of distinguishing both institutions and state: "Article 38 grants the Office of the Attorney General the necessary standing to sue civilly in cases of punishable acts where collective or diffuse interests are affected to collect social damages, but it is nothing more than a power that legitimizes its participation in the proceeding; if one looks for who holds the legal representation of society or who represents the collective or diffuse interests of a society, we would have to refer to the previous concepts to conclude that it is the State as the greater and primary figure of Public Administration that represents society and its interests. Therefore, to maintain as the Court does that the Office of the Attorney General represents diffuse and collective interests pursuant to Article 38 of the Code of Criminal Procedure, is not only legally improper, since according to this interpretation one article (Article 38 of the C.P.P.) would be disapplying a Law (Organic Law of the Office of the Attorney General) and only for specific cases, but also one would again fall into the impossibility, as explained, of the Office of the Attorney General civilly suing its principal, who is also, the representative of the interests one seeks to protect" (Cf. folio 172050 and 172051). Given this error, the petitioners indicate, they request the annulment of the judgment and the correct application of the invoked regulations. VI.- Fifth ground.- "Erroneous interpretation of Articles 106 of the Penal Code (Código Penal), 1046 of the Civil Code (Código Civil) and 113 of the Code of Criminal Procedure" (Cf. folio 172051). They question the analysis carried out in the judgment on the joint and several liability (responsabilidad solidaria) of the civil defendants, whom they divide into groups and which, from the perspective of the Office of the Attorney General of the Republic, is erroneous, since it deems it feasible to demand that joint and several liability from all the civil defendants. In support of its criterion it cites vote 645-2010, of 3:00 p.m. on June 4, 2010, which, insofar as relevant, establishes: «The defining characteristic of the joint and several obligation (obligación solidaria), consists in that "... each debtor is directly bound to pay the entire debt... " (Brenes Córdoba, Alberto: Treatise on Obligations, 7th edition, Juricentro, San José, 2006, pp. 56-57). Further on the same author specifies: "...What properly constitutes solidarity... (is) the circumstance of being directly liable 'for the whole and as debtor of the whole'; which is the meaning of the Latin phrase in totum et totaliter that is usually used to characterize the solidarity commitment... " (Op. Cit, p. 58). Precisely the creditor's right of choice, or the power "...to demand the performance from one of the debtors, from all at once, or successively... "(Op. Cit, p. 59), is the guarantee offered to the creditor by solidarity (Article 640 of the Civil Code), which comes to naught with the division into quotas carried out by the lower court (a quo), starting from an erroneous interpretation of Article 135 of the rules in force on civil liability, from the 1941 Penal Code, a norm also erroneously invoked by the appellants. The aforementioned numeral 135 establishes: "...The obligation to provide civil compensation (reparación civil) is joint and several for participants in a punishable act; but among themselves each shall be liable for the quota determined by the judge, according to their participation... ': The phrase "-each shall be liable for the quota determined by the judge, according to their participation... "of course, does not refer to the division of liability or its conversion into a joint obligation. Rather, it refers to the action for contribution that the joint and several debtors have among themselves (numeral 651 of the Civil Code). That is, after partial or total payment has been made by one of the debtors, they may claim from the others the reimbursement of the payment they are each responsible for, along with costs and interest accruing from the date of payment, based on their share of liability. However, this is a right of the joint and several co-debtors, which they may exercise later, and not a power enforceable against the creditor, nor a stipulation in favor of division into quotas by the Court because, as stated, that would nullify the guarantee of choice, intrinsic to the joint and several obligation. Finally, it should be noted that the fact that the civil actors did not challenge the distribution of the total payment of moral damages in quotas or fractions, which occurred in the appealed judgment, does not imply tacit waiver of solidarity and therefore, of the right to choose against whom to proceed to enforce the existing obligation in their favor. This is so, because the reasons for considering solidarity terminated, are exhaustively stipulated in Article 647 of the Civil Code, besides the fact that "... The waiver of solidarity is not presumed, because the intention to donate or to make an unmotivated abandonment of a right is never to be presumed... "' (Brenes Córdoba, Op. Cit, p. 62).". Under this correct understanding, the Court should have condemned all the accused to pay the totality of the social damage suffered, not in proportionality with respect to each group, since all contributed through a specific function to the successful execution of the general plan of action» (Cf. folios 172054 and 172055). They reiterate that the joint and several liability of all participants was requested (pursuant to the provisions of Articles 106 of the Penal Code and 1046 of the Civil Code), therefore the court should have resolved the merits, since even though it divided the defendants into groups, it always alluded to the joint and several liability of those persons (the petitioners citing vote of the Third Chamber (Sala Tercera) No. 238-2009, of 9:48 a.m. on March 13, on the subject). They consider Articles 106 of the Penal Code, 1046 of the Civil Code and 113 of the Code of Criminal Procedure to have been violated, emphasizing that the last of these provisions foresees the possibility for the civil actor to direct their claim against whichever defendants they deem pertinent (due to the principle of party autonomy), citing the text of Dr. Juan Marcos Rivero Sánchez (Civil Liability, Volume II, Second Edition, page 347), and also Dr. Javier Llobet Rodríguez, in his work Proceso Penal Comentado, fourth edition, page 269, when he comments on related Article 113 of the Code and states: "Since the exercise of a civil action is of private interest, the person who believes themselves injured may direct the action against one or more of the accused, against one or more of the possible civil defendants, or against all of them. ... Regarding civil liability, it is important to consider that the Penal Code provides for joint and several liability of all participants, which implies that in principle it is not necessary to sue all the accused, but rather the civil actor may choose whom to sue; from this perspective there is no necessary passive joinder of parties (litisconsorcio pasiva necesaria)". The petitioners mention votes of this Court on this point (638-2006, of 3:45 p.m. on June 28). Regarding the argument of the trial court, that the accused participated in different stages or with different conduct, they consider that the problem does not concern the determination of the damages, but rather their quantification in relation to the participation of each defendant, an aspect that did not prevent the judges from resolving the merits of the civil action, so that they would be condemned jointly and severally and then referred to the corresponding forum, to determine the quantum for each one. As for the opposition between the criterion of solidarity groups among the defendants (maintained in the judgment) and the defense of solidarity of all, they state: "The damage claimed is the social damage caused by acts of corruption and this damage is focused on compensating society which is affected by acts of corruption by its public officials; from this point of view, society is affected as a whole and not its individuals specifically, so the damage suffered is general and is one. Moreover, from the actions deployed by the accused it is observed that all were directed toward a common goal, in this case, that Alcatel would manage to break the monopoly on the cellular offer, that the public bidding would take place, and that Alcatel would be the awardee, aspects that occurred and were taken as proven in the judgment now being appealed. That is, the Court does not analyze the common goal of the conduct deployed by the accused and how all of these, as acts of corruption, were intended to obtain a common goal which was to achieve the final award of a contract. The construction of groups carried out by the Court is very subjective and stems from the crimes attributed to the accused and according to the concept of public officials used to establish the State's liability, which is erroneous, as seen above. Furthermore, they are acts that are interrelated, since the result pursued and obtained was not achieved by a single person, but by all of them together. To prove the subjectivity of the Court in determining the groups, let us just consider that, if on the other hand, the groups were determined by the actions taken by Alcatel's representatives, such groups would not exist, since they participate with all the other accused in the present acts" (Cf. folios 172063 and 172064). They request the annulment of the judgment and the correct application of the invoked regulations.

XVII.- THE APPEAL FILED BY THE OFFICE OF THE ATTORNEY GENERAL OF THE REPUBLIC IS RESOLVED.- Regarding the civil matters raised by attorneys Gilberth Calderón Alvarado, Public Ethics Attorney (Procurador de la Ética Pública) and Miguel Horacio Cortés Chaves, Deputy Public Ethics Attorney (Procurador Adjunto de la Ética Pública), in their capacity as representatives of the State, constituted as Civil Actors, this Chamber has already granted the objections presented by attorney Cristian Arguedas Arguedas, who questioned the decision of the trial court to omit ruling on the civil actions filed by the Office of the Attorney General of the Republic and the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad); applying the extensive effect and ordering the remand for a new proceeding in accordance with the Law on said matters. For procedural economy, an express resolution on the objections formulated is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the matters of the civil action for compensatory damages (acción civil resarcitoria) of interest.

XVII.- APPEAL FILED BY ATTORNEY MARIO NAVARRO ARIAS.- Attorney Mario Navarro Arias, special judicial representative of 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 their personal capacity, based on Articles 39, 41 of the Political Constitution, 1, 142, 184, 363, 367, 369 subsections b), c), d), 437, 438, 439, 447, 458, 459, 460 of the Code of Criminal Procedure, joins the appeals in cassation (recursos de casación) filed against judgment number 167-2011 issued by the Criminal Court of the Treasury and Public Function (Tribunal Penal de Hacienda y la Función Pública), of the Second Judicial Circuit of San José, at 3:00 p.m. on April 27, 2011, by the civil defendants [Nombre012] and Alcatel Lucent-France, the Office of the Attorney General of the Republic and the Costa Rican Electricity Institute (the latter in their capacity as civil actors). First ground.- Alleges lack of reasoning (falta de motivación) in the rejection of the award of costs (condenatoria en costas), in violation of Articles 39 and 41 of the Political Constitution, 363 and 369 of the Code of Criminal Procedure, since the court limits itself to the fact of having dismissed the civil claims and, attributing—in part—responsibility to the civil defendants for the consequences of the claims. They qualify this reasoning as generic and reproach the absence of an examination of the process followed for the civil action within the proceeding: the filing of the claim, their participation in the preliminary hearing (where the defects of the civil actions were protested), as well as in the adversarial stage: "Ergo, this representation NEVER CONTRIBUTED TO NOR ADMITTED THE DEFECTS OF THE CIVIL ACTIONS, and NOT TO MENTION THE ACTION BY ICE, WHICH MODIFIED ITS CLAIMS IN THE PRELIMINARY HEARING, WHEN IT COULD NOT DO SO AND IN THE CLOSING ARGUMENTS STAGE when it was also not permitted to do so. And we, in our capacity as civil defendants, objected to those circumstances, CONSIDERING THE CIVIL ACTIONS RECKLESS. However, as we noted in this section, the release from the payment of costs, is for reasons that the court does not adequately substantiate, leaving the judgment devoid of reasoning and causing the ruling in this section, to have an unavoidable defect, which must be so declared and a partial retrial ordered" (Sic. Cf. folio 171415). Second ground.- Considers that there is an erroneous application of Articles 267 and 270 CPP and lack of application of Articles 221 CPC in relation to numeral 266 CPP. He explains that from Report No. 202 of the Economic Section of the Judicial Investigation Agency (Organismo de Investigación Judicial), it is established that the civil defendants Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., La Selva de la Marina S.A., received monies from Servicios Notariales QC S.A., originating from Alcatel, that is, the court took it as proven that it is private money, not from the public treasury. And he adds: "The Court dismisses the actions against all the civilians, but OMITS ALL ARGUMENTATION ABOUT THE objection as third parties thereof, AND THE REMAINING ONES FROM ALCATEL, which were not BUFETE VALERIO CASAFONT Y ASOCIADOS, and two companies THAT BENEFITED WITH MORE THAN ONE The Court also does not refer to the fact that the CIVIL DEFENDANTS THROUGH SERVICIOS to the formulation of THE OFFICE OF THE ATTORNEY GENERAL FAILED TO COMPLY WITH ITS LEGAL DUTY by disrespecting 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 I represent PUNTO DE NEGOCIOS, QUANTICA, FINCA SALITRAL AND LA SELVA DE LA MARINA all corporations have nothing to do with THE ACTIONS OF [Nombre009], [Nombre024], [Nombre026], [Nombre001], [Nombre004], [Nombre018], [Nombre012], [Nombre021]" (Literal copy of the original. Cf. folio 171416). He points out that for seven years his clients endured the proceeding against them and therefore, the actions filed and declared without merit must have consequences. He states: "The cause for avoiding those consequences would be the plausible reason to litigate and we, the representation of Punto de Negocios, La Selva de la Marina, Quántica, and Gambusinos ask: Where does the plausible reason to litigate lie if a CAUSAL LINK IS NOT DETERMINED BETWEEN THOSE DEFENDANTS AND THE ACTS OF THE ACCUSED WHO WERE SENTENCED.? What money BELONGING TO ICE, OR THE STATE reached the hands of the civil defendants? And the same questioning applies here regarding the monies received by Servicios Notariales QC S.A. and [Nombre009] personally. That the claims were confused, and that solidarity was not adequately determined. The claims were dismissed, and as such their promoters must face the consequences" (Cf. folio 171417). In summary, he requests that the civil actors (Costa Rican Electricity Institute and the State) be ordered to pay the costs of the proceeding, including the appeal in cassation. Third ground.- Objects to erroneous interpretation of Article 277 CPC, regarding the compensation for damages and losses (indemnización de daños y perjuicios). Points out that since a ruling on the merits is omitted in the judgment, the lifting of the ordered attachments (embargos) is ordered, as well as the rejection of the award for damages and losses. Then, regarding the possibility mentioned in the ruling to resort to the civil jurisdiction, he states: "First of all, the Court's decision to offer the actors the possibility of resorting to the ordinary jurisdiction, we suppose, in pursuit of their interests, is unfortunate. That decision is admissible only insofar as the plaintiffs have not endured everything that the civil process entailed within the criminal process. The procedural principle of 'choice of forum (elección de vía)' is ignored by the trial Court. The actors decided to choose the route of the civil action within the criminal process in pursuit of their interests. So much so, that there are even appeals in cassation pending from the civil actors. That the Court dismissed their claims due to defects in the CLAIMS, cannot be the basis for referring the parties to a subsequent civil claim. The actors exhausted the route of the criminal process for the probable compensation; that they did not know how to do so, does not give them the right to remain legitimized to do so in the ordinary civil route. That interpretation made by the Court, truly does harm numeral 2 of the Code of Criminal Procedure. The Judge knows the law, and under that standard, it is evident that the Court is benefiting one of the parties to the process, erroneously, due to a poor performance by them. The claim was DEFINITIVELY DISMISSED IN THE JUDGMENT of the Criminal Court, the lifting of the attachments was ordered as a consequence thereof and in that case the cash must be consigned in favor of the defendants as damages and losses, as a fixed compensation: that is the content of the rule in question and its spirit. (...) Seven years the civil defendants, whom I represent, had to endure a civil process filed within a criminal process, with an attachment included; waiting for the claims to be rejected for reasons of form and substance. The Court in the judgment, after those seven tortuous years, decided to reject the claims as defective. It was necessary to wait for the parties' closing arguments to know what those claims were, the defendants did their part rejecting what the actors sought. And, we return to the issue raised in previous grounds: What do the civil defendants, the companies I represent, and [Nombre009] personally, have to do with public monies or funds? Nothing, nothing and nothing. What do the companies I represent have to do with the actions of the sentenced persons? Where does the causal link between the criminal act and the civil claim lie? There is no answer to this question, because the Court dismissed the civil claims due to DEFECT IN THE CLAIMS, ESPECIALLY ON THE ISSUE OF SOLIDARITY" (Cf. folios 171418 and 171419). Cites vote No. 115-1995, of October 18 and they request that the appeal be granted, that the ruling be revoked insofar as it rejects compensation for damages and losses, and that the trial court be ordered to make the "disbursements" to the civil defendants in the corresponding proportion according to the claims filed.

XVIII.- THE APPEAL FILED BY ATTORNEY MARIO NAVARRO ARIAS IS RESOLVED.- Regarding the civil matters raised by attorney Mario Navarro Arias, special judicial representative of 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 their personal capacity, this Chamber has already granted the objections presented by attorney Cristian Arguedas Arguedas, who questioned the decision of the trial court to omit ruling on the civil actions filed by the Office of the Attorney General of the Republic and the Costa Rican Electricity Institute; applying the extensive effect and ordering the remand for a new proceeding in accordance with the Law on said matters (including costs). For procedural economy, an express resolution on the objections formulated is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the matters of the civil action for compensatory damages of interest.

XIX.- APPEAL FILED BY ATTORNEY MARIO GONZALO SOTO BALTODANO.- Attorney Mario Gonzalo Soto Baltodano, president with powers of generalissimo representative without limit of amount of JURISO, S.A., files against judgment No. 167-2011, of 3:00 p.m. on April 27, 2011, issued by the Criminal Court of the Treasury of the Second Judicial Circuit of San José; an appeal of judgment (recurso de apelación de sentencia) (cf. 172884 to 172915, volume XXXIX); as well as an appeal in cassation (cf. folios 17062 to 17082, volume XXXVI). Given the coincidence of claims in both challenges, the claims are set forth, with some textual citations from the second of them, corresponding to the appeal of judgment. First ground.- Explains that the referenced company is the owner of the Suzuki brand vehicle, license plate [Valor033], whose seizure (comiso) was ordered in the appealed judgment, his client being an interested third party and that it was never notified of the process, even though it is a good faith owner. He states: "Said asset was acquired under the protection of the Public Registry free of encumbrances and annotations, for a just cause and for its tax value. The sale price was paid through the payment of my professional fees for the tax value of the vehicle, thus the defense of [Nombre001] was paid, which I exercised until [Nombre001] himself replaced me, on August 30, 2006 (evidence 1 certification of transfer and substitution [Nombre001]). That is, with the transfer of the car, the fees were considered satisfied. The transfer was carried out by a third person who at that time is the generalissimo representative of the company that owned the vehicle and who I had always known as the person representing Venezuelan interests in my client's businesses. That notarization occurred when the State only had a mere expectation of right in this trial, there was no judgment, but on the contrary there were resolutions from the Trial Court of the II Judicial Circuit of San José, Goicoechea, that go against that expectation of right, thus the Criminal Court of the Second Judicial Circuit of San José issued vote 246-05, at 4:15 p.m. on May 12, 2005, considering that 'the Public Prosecutor's Office (Ministerio Público) requested extension of the precautionary measures, therefore requesting that the appealed resolution be maintained. Upon analyzing the record, it appears that the Public Prosecutor's Office based its initial request arguing that the accused has concealed facts and performed acts to obstruct the investigation, subsequent to his initial statement. In its request, the Public Prosecutor's Office indicates as an example of these actions the transfer of some vehicles, as recorded at folios 188 and following'.

However, the transfer deed is dated September two thousand four and [Nombre069] indicates that it was indeed around those dates that the defendant [Nombre029], the defendant's sister, asked him to purchase several companies to which the vehicles were later transferred. The defendant was questioned on October 8, two thousand four and stated that he accepted the facts. If the Public Prosecutor's Office was unaware of those transfer actions as of that date, nothing obligated the defendant to self-incriminate regarding facts that were not being attributed to him. The truth is that these circumstances occurred prior to the questioning, and we cannot therefore say that the defendant's situation has changed and that he has executed subsequent acts to obstruct the investigation... As a necessary consequence, the ruling is revoked" (Cf. folios 172886 and 172887). The appellant states that it concerned a liquid and enforceable debt, as professional fees are privileged for collection, and it was the will of the company's legal representative to sell him the vehicle to pay for her professional work, the motor vehicle being free of liens, annotations, and encumbrances. He explains that he acquired the vehicle in the name of the company JURISO S.A., where he places his assets. He considers that his represented party is a third party with a superior right, being first in time with respect to the appealed judgment. He adds: "When the rulings on precautionary measures of which I was aware, that is, until August 2006, both against the defendant and against the vehicle, had been rejected. This proves why the vehicle is absolutely clean in the Registry; no annotation, lien, or confiscation had been declared. Rather, the annotation had been rejected" (Cf. folio 172888). He mentions the ruling from 3:00 p.m. on November 23, 2006, by the Criminal Court of the Second Judicial Circuit of San José, rejecting the precautionary measures against [Nombre001] and where fact 85 specifically refers to the Suzuki, license plate [Valor033]. In short, upon withdrawing from the defense, all issued rulings dismissed any claim over that asset; they were mere expectations. [Nombre001] had not been convicted of fraud, nor were there precautionary measures, while his right to professional fees was a prior, enforceable, due, and current debt. That is, the transfer in favor of JURISO S.A. was a legitimate act for the payment of a prior debt, proven in the same case file by the professional work carried out in the proceedings: precautionary measures, testimonies, negotiations of alternative measures, expedited procedures, and many hours of study and consultation. He requests that the judgment be quashed and a remand be ordered to resolve according to Law; or, alternatively, that the confiscation be revoked, as his "interested party" is the legitimate owner. Second ground.- He reproaches as a violation of due process, the infringement of Articles 39 and 41 of the Political Constitution, mentions Article 45 of the Constitution, as well as numerals 110 of the Penal Code, reproduces the content of Article 2 of the Law on Judicial Notifications and 449 of the Civil Code; then he challenges the lack of notification to his represented party JURISO S.A. (registered owner of the vehicle [Valor033]) nor to Dominical Antigua S.A. (former owner), at least regarding: the civil actions, the scheduling of the hearing, and the judgment, generating a harm by ordering the confiscation of that asset and by annulling, in the appealed judgment, the deed that placed that asset in the name of Dominical Antigua S.A. (even though it is recorded in the Public Registry that the vehicle belonged to JURISO S.A.). Consequently, he protests because the confiscation of an asset was applied to a third party unrelated to the proceeding. He cites ruling No. 482-G of the First Civil Court, Second Section of San José, from 8:35 a.m. on March 11, 2004: "III.- The appellant further states that the debtor [Nombre090] has no possibility of claiming valid payment because the ownership of a credit passes to the assignee by the mere effect of the assignment, that in this case the debtor expressly waived notification of the assignment, so that as there is registry publicity in pledge matters, the debtor was obliged to consult the Public Registry and corroborate the identity of his creditor before making the payment." He considers that a public authority that is going to confiscate an asset has the same duty as a notary: to consult the registry, as it is going to constitute, modify, or extinguish rights of persons. He points out that in this case, even though only the transfer from Dominical Antigua S.A. was annulled and not that of his represented party (so it remains fully valid), the confiscation is ordered, affecting JURISO S.A. as a third party unrelated to the proceeding. He requests that the judgment be annulled, totally or partially, revoking the confiscation against his represented party; subsidiarily, he requests that the confiscation order be revoked, because the owner should not be affected. Third ground.- Based on Articles 142, 369 subsection d) of the Code of Criminal Procedure and 110 of the Penal Code, contradictory reasoning and failure to observe the rules of sound rational criticism are alleged when examining evidentiary elements of decisive value. He considers there was a violation of the rules of correct human understanding when establishing the perpetration by [Nombre001] as the perpetrator of the crime of aggravated corruption in the modality of improper bribery, due to a lack of correlation between the proven facts and the admitted evidence, despite the absence of evidentiary elements, such that it is impossible to specify the facts of the accusation and the judgment. He reproduces what was held as proven in the judgment regarding the participation of [Nombre001] (facts 44, 45, 130, and 131), then the documentary evidence of interest (corresponding to the seizure records 383988 and 383889 of July 21, 2005; seizure records 386753 and 386754, visible at Volume IX, folios 3600 to 3601, of Banco Cuscatlán) and adds: "That is, that the Court, despite affirming in the proven facts of decisive value, which are fact 130 and 131, that: 'It was agreed that the delivery would be conditional upon the effective award of the offer that Alcatel would present to ICE.' Omits analyzing the investment certificates from which the exact opposite can be inferred, because if the award was on January 18, 2002, and the comptroller's approval was on March 7, 2002, it cannot be affirmed that the delivery would be conditional upon the effective award of the offer, as the sentencing Court does, because [Nombre001] had $20,000.00 in his possession by December 10, 2001. That is, sums were disbursed to him before the conditions stated in the judgment. This contradiction is also noted in the table of DELIVERY OF MONEY TO PUBLIC OFFICIALS, on page 1712 of the Judgment, where it is established: 'QC Notarial Services, February 13, 2002, [Nombre001]'. That is, also before the date of the comptroller's approval, other monies had been disbursed to [Nombre001]; in addition, he had traveled abroad frequently, as seen in the table of Delivery of Monies to Public Officials, on page 1712 and the analysis of the dissenting vote of Judge Camacho..." (cf. folio 172900 and 172901). The appellant considers that a clear, precise, and detailed relationship of the facts constituting those necessary actions, or of what was agreed, as affirmed in the accusation, was never established. He asserts that fact 130 contains a "false cause fallacy" in violation of Article 142 of the Code of Criminal Procedure, by indicating that the "necessary actions" occur within the scope of his functions as advisor to the Executive Presidency of ICE and as the person in charge of executing the 400,000 lines project, to make the contracting effective in favor of Alcatel. The foregoing, the applicant estimates, implies that [Nombre001] could override the Board of Directors, [Nombre061] (Deputy Manager for Telecommunications of ICE and signatory of the contract), [Nombre052] (Executive President), and all the members of the commission appointed for that project and the Comptroller General of the Republic; which is, legally and functionally, false. He points out that even though, at the express request of the Public Prosecutor's Office, the detail of [Nombre001]'s functions appears from folio 1569 onwards (Volume V), neither in the accusation nor in the judgment is it specified which of them was carried out in favor of Alcatel's offer, "... much less when barely on December 21, 2010, and January 15, 2001, [Nombre052] was asking the Comptroller's Office for authorization for the direct purchase (the approval of the abbreviated process 01-2001 for bidding did not exist) and [Nombre001] had already received the money certificates in December 2001. With all due respect, it is absurd to convict [Nombre001] when, at the historical moment he received the money, the bidding process did not even exist, nor were they thinking about it. The bidding process is approved until March of the following year, March 7, 2002" (Cf. folio 172904). He states that it is also recorded at folio 1795 (Volume V) that the Director of Human Resources, [Nombre087], certifies that [Nombre001] worked in the institution only in the executive presidency, questioning then, what was the typical, unlawful, and culpable action carried out by [Nombre001] to favor Alcatel in the awarded bid. He reproaches that the judges did not weigh (according to evidence at folios 1569 and 1795) that the accused [Nombre001] did not have exclusive dedication, nor prohibition; consequently, it is not demonstrated that the monies received before the abbreviated process 01-2001 were illicit or related to the process. He asserts that the judges omitted analyzing that, according to the content of the document at folio 1569, [Nombre001]'s functions were subject to and subordinate to the Executive Presidency; consequently, the "necessary actions" could not be the defendant's own as he lacked the authority to decide and execute (citing Article 11 of the General Law of Public Administration). He requests that the judgment be quashed and a remand be ordered for its processing according to Law, or alternatively, that it be resolved as established in Article 9 of the Code of Criminal Procedure, issuing an acquittal in favor of the accused [Nombre001] and consequently, revoking the confiscation ordered over his represented party's vehicle. Fourth ground. He challenges the erroneous application of Article 340 of the Penal Code (improper bribery), because despite knowing the functions performed by the defendant [Nombre001], it is not identified what specific act of his functions was carried out, the pronouncement being limited to alluding to "necessary actions." After questioning what that expression could mean, he questions how "necessary actions" were going to be carried out on December 10, 2001, regarding a bid whose contract was not signed until January 18, 2002, and was approved in March 2002. He adds: "However, he did take trips abroad in the month of December 2001, as already stated. But it is worth mentioning that his departures from the country were on weekends or vacations, meaning they are not related to his functions. Nor is it demonstrated that the money [Nombre001] receives comes from his functions; it is not known why money and trips coincide on vacation days or weekends, but that excludes, in principle, that it is a matter in Costa Rica, but above all excludes that it is a matter related to the abbreviated process 01-2001. That is, an element of the criminal definition is unfulfilled, and there is a lack of criminal typicity in transgression of the Penal Code" (Cf. folio 172908 and 172909). He cites Articles 1 and 4 of the Penal Code, then requests that the conviction of the accused [Nombre001] be annulled and an acquittal be issued, releasing him from all punishment and responsibility. Fifth ground.- He challenges the lack of criminal typicity of fact 187 of the judgment, because he considers that intent (dolo) to constitute simulation fraud was not proven. He states: "1. It was never proven that the defendant knew about the media publications against QC Notarial Services, to demonstrate that he knew the origin of the money, just as it has been proven in the previous grievances that the reasons for which he received those sums are not those indicated in the judgment. 2. Nor was the whereabouts of the vehicles demonstrated to prove that the act was simulated and that it was not true, that is, it cannot be affirmed that the defendant remained in possession of the motor vehicles, benefiting from them. 3. Nor were registry studies conducted on the company that acquired the vehicles from fact 187, to verify if that company was always controlled by the defendant or if it ended up in the hands of third parties. 4. Nor was it demonstrated that the defendant always remained in possession of the share package. 5. The evidence gathered from CUSCATLÁN INTERNACIONAL was brought to the process illegally, and we thus request it be declared so, since as appears in the same banking documents, this institution is based in the Bahamas and not in Costa Rica. 6. The transfers of the vehicles occurred before the questioning regarding simulation fraud; therefore, the defendant did not have the obligation to self-incriminate for facts that were not being attributed to him" (Cf. folio 172910). In the appellant's opinion, an undue benefit was not demonstrated, and among other aspects indicated above, ultimately, no simulated act, contract, action, or judicial document was proven with the purpose of obtaining an undue benefit, causing harm to another person. He requests that the conviction be annulled and an acquittal be issued in favor of the accused [Nombre001], annulling the conviction and the declaration of falsehood.

XX.- THE APPEAL FILED BY MR. MARIO GONZALO SOTO BALTODANO IS RESOLVED.- It is recorded in the judgment that the Trial Court, at the request of the Public Prosecutor's Office and the Attorney General's Office of the Republic, ordered the confiscation of the vehicle with license plate No. [Valor033], registered in the name of Dominical Antigua S.A., after a declaration of instrumental falsehood of public deed No. [Valor060] by Notary [Nombre028], ordering the corresponding registry rectifications. Regardless of the arguments made by the appellant, questioning the criminal reproach against the accused [Nombre001] for the crime of simulation fraud, regarding the motor vehicle mentioned and transferred by deed No. [Valor060] (a situation already addressed by this Chamber confirming the conviction); the truth is that a violation of due process is indeed verified concerning Mr. Mario Gonzalo Soto Baltodano, as president with powers of generalissimo legal representative without limit of sum of JURISO, S.A., since he could be a third party in good faith affected by the confiscation ordered in the judgment. Upon examination of the case file, the following data are relevant: There is a photocopy of the certification of the vehicle with license plate No. [Valor033], where the appellant's represented party, JURISO, S.A., appears as the registered owner, and upon describing the qualities of the owner, it can be read that the document was filed on July third, two thousand nine; without it being recorded in the case file that, at the time the oral and public hearing took place (starting April fourteenth, two thousand ten, cf. folio 14082, Volume XXIX), the representative of JURISO, S.A. had participation in the criminal proceeding at hand, so ordering the confiscation under such circumstances causes a violation of due process that warrants ordering its annulment and ordering a remand for a new substantiation according to law. Consequently, the appeal filed by Mr. Mario Gonzalo Soto Baltodano, president with powers of generalissimo legal representative without limit of sum of JURISO, S.A., is granted. The confiscation of the Suzuki Jimmy vehicle, license plate [Valor033] is annulled, and a remand is ordered on that point for a substantiation according to law, with the obligation to summon the appellant herein, so that he has the opportunity to exercise the rights that correspond to him by law. By virtue of what has been resolved, pronouncement on the other proposals made by the appellant is omitted, as the majority of them allude to substantive aspects that must be elucidated in the remand ordered herein.

XXI.- APPEAL FILED BY MR. JUAN LUIS VARGAS VARGAS.- Mr. Juan Luis Vargas Vargas, special judicial representative of [Nombre002], president, with generalissimo powers without limit of sum of the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, filed against judgment No. 167-2011, of 3:00 p.m. on April 27, 2011, issued by the Criminal Tax Court of the Second Judicial Circuit of San José; an appeal of judgment (cf. 172273 to 172291); as well as a cassation appeal (cf. folios 17649 to 17674). When referring to his standing to appeal, he explains that both doctrine and jurisprudence (rulings No. 138-91, No. 1080-98-98, No. 583-2003, 712-2006, and 125-2010 of the Third Chamber, No. 5447-95, No. 4121-96, and No. 5464-96 of the Constitutional Chamber) recognize that right in those who, even though they have not been a party to the criminal proceeding, are "affected interested third parties," when the judgment has ordered the confiscation of an asset of their property, as is his case. Given the coincidence of claims in both challenges, the claims are set forth, with some verbatim quotes from the second one, corresponding to the appeal of judgment. Sole ground.- "Violation of due process for infringement of the right of defense by having ordered the confiscation of a real property belonging to a corporation" (Cf. folio 172279). In violation of Articles 39 and 41 of the Political Constitution, 8 subsection 1) of the American Convention on Human Rights, and 369 subsection j) of the Code of Criminal Procedure, as well as numerals 103 and 110 of the Penal Code, the right to due process, to defense, as well as the right to be heard, of the company owning a real property over which confiscation was ordered in the judgment, was violated. Citing doctrine and pronouncements of the Inter-American Court of Human Rights, the Third Chamber, and the Costa Rican Constitutional Chamber on due process, he explains that the trial court in the appealed judgment ordered the confiscation of property [Valor061] (as recorded at folio 1543 of the ruling), belonging to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, legal ID 3-101-272513, without guaranteeing its participation in the proceeding. He asserts that the basis expressed by the court for ordering confiscation is not valid, as in his opinion they constitute "mere general statements without a specific reference to the case and, above all, to the intervention of the company from which the repeatedly cited property is confiscated. The defect denounced in this ground prevented the sentencer from issuing any pronouncement on the confiscation, as the minimum premises of adversarial proceedings guaranteeing that the defense of the harmed company had been heard had not been established in the process. In this sense, the decision taken on confiscation is not based on a prior discussion between the parties as is appropriate in an accusatory system, and even more so on a matter involving the loss of ownership of an asset. By reason of this, the decision to order confiscation in the judgment is surprising because during the processing of the present case, no notice whatsoever was given to the said company, whereby no opportunity was afforded it to present its reasons opposing such a possibility of losing the mentioned property in favor of the State" (Cf. folio 172286). That is, the judges ordered the confiscation of a real property without giving the owning company an opportunity to defend itself, causing it irreparable harm. He criticizes that in previous rulings, in the face of defects like the one denounced, what was resolved is partially annulled and a remand is ordered for a new substantiation (for example, ruling No. 96-2009 of the Third Chamber), because: (i) It would give an undue advantage to the civil plaintiff parties, who did not take action in a timely and proper manner. They state: "This implies a violation of the rule of defective procedural activity which establishes that under the pretext of repeating an act, the criminal process cannot be set back to precluded stages" (Cf. folio 172289). (ii) "Due to the large dimensions of the procedural defect denounced, which have implied an absolute exclusion of the affected company that was never heard, the partial repetition of the trial and judgment is not the appropriate mechanism to restore the enjoyment of the company's intervention rights. And this is so because if partial nullity were ordered, it would imply cutting off the opportunity to offer evidence and rebut the evidence and arguments of the plaintiffs in an intermediate phase already precluded" (Cf. folios 172289 and 172290). He requests that the appeal be granted, partially annulling the judgment, only insofar as it ordered the confiscation of the property registered under sequence number [Valor061], of the Guanacaste Registry Office, belonging to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima.

XXII.- THE APPEAL FILED BY MR. JUAN LUIS VARGAS VARGAS IS RESOLVED.- It is recorded in the judgment that the Trial Court (in a majority vote), at the request of the Public Prosecutor's Office and the Attorney General's Office of the Republic, ordered the confiscation of the property registered under sequence number [Valor061], of the Guanacaste Registry Office, belonging to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima. The Trial Court in its majority vote, and using as a basis Article 110 of the Penal Code which establishes: "The crime produces the loss in favor of the State of the instruments with which it was committed and of the things or values originating from its commission, or that constitute for the agent a profit derived from the same crime, except for the right that the victim or third parties may have over them"; ordered the confiscation of the mentioned real property. At folio 1897 of the judgment, the confiscation is ordered of the property of the Registry Office of [...], No. [Valor061] "... in the name of Multiservicios Públicos Privados y Afines de Guanacaste MUPAGUA S.A., a company acquired by the companies MCS Moriah Consultores S.A. represented by [Nombre029] and that was acquired with monies originating from the crime. As analyzed in Recital IX, said companies were controlled by the defendant [Nombre001] and were used by him to conceal the nature of the illicit monies he was receiving." And indeed, in the substantive recital, the judges, after establishing the criminal reproach against [Nombre001] as the responsible perpetrator of the crime of aggravated corruption in the modality of improper bribery to the detriment of public duties, state: "The confiscation is ordered of the Suzuki Jimmy vehicle, license plate No. [Valor033], which was acquired with part of the illicit monies received by the defendant [Nombre001]. For the same circumstances, the confiscation is ordered of the properties registered in the Public Registry of Property, Guanacaste Registry Office under the Real Folio System, Registration No. [Valor021], Sub-Registration [Valor018]; Guanacaste Registry Office, Real Folio System, Registration [Valor022], Sub-Registration [Valor018]" (folio 1543 of the judgment). However, in this specific case, since confiscation is a civil consequence of the punishable act and in view of the fact that this Chamber (as detailed supra) has dismissed due to extinction of the criminal action (statute of limitations) the defendant [Nombre001] for the crime of aggravated corruption in the modality of improper bribery to the detriment of Public Duties, the appropriate course is to grant the appeal filed by the applicant and revoke the majority decision of the Trial Court regarding the confiscation ordered over the property registered in the Public Registry of Property, Guanacaste Registry Office, Real Folio System, Registration [Valor022], Sub-Registration [Valor018]; because, as can be deduced from the transcriptions made, the scant intellectual reasoning of the pronouncement links the decision to confiscate that real property to the commission of the crime of aggravated corruption in the modality of improper bribery to the detriment of Public Duties; not to the simulation fraud that persists and that directly involved another of the confiscated assets (the Suzuki Jimmy vehicle, license plate No. [Valor033], a matter on which the remand was ordered). Consequently, the confiscation ordered over the property registered in the Public Registry of Property, Guanacaste Registry Office, Real Folio System, Registration [Valor022], Sub-Registration [Valor018] is revoked.

XXIII.- MATERIAL ERROR IS CORRECTED.- In accordance with Article 146 of the Code of Criminal Procedure, a material error is hereby corrected in the operative part communicated to the parties on December twenty-first, two thousand twelve, specifically, in section C, so that where it says "[Nombre001]" it should read "[Nombre004]"; so that said section would read as follows: "C) The appeal filed by Ms. Yamura Valenciano in favor of the accused [Nombre004] is granted. The cause for the crime of improper bribery in its modality of aggravated corruption that had been attributed to the defendant [Nombre004] is declared time-barred, and he is acquitted of all punishment and responsibility for this crime."

THEREFORE:

In accordance with Articles 7, 24, 33, 34, 39, and 41 of the Political Constitution; 1, 2, 11, 30, and 45 of the Penal Code of 1973; Rules in force on civil liability from the Penal Code of 1941; 1, 2, 9, 30 subsection e), 142, 175, 178, 180 to 184, 458, 459, and 465 of the Code of Criminal Procedure:

• A)The appeal filed by the accused [Nombre012] is granted; the criminal action is declared extinguished due to the statute of limitations having run; the nullity of documentary evidence No. 588 and all evidentiary elements directly dependent on it is declared; the nullity of the criminal conviction issued against [Nombre012] is declared, and in its place, he is directly acquitted of all punishment and responsibility. The appealed judgment remains unchanged insofar as it acquitted him of four crimes of Illicit Enrichment. Due to the way in which it has been resolved, it is unnecessary to rule on the other claims raised by appellants [Nombre012] and [Nombre088] regarding the criminal action in their appeals, since their corresponding claims have been addressed. The appeal of Mr. Cristian Arguedas is granted, and by application of the extensive effect, his appeal benefits all the civil co-defendants; the judgment is annulled in its civil aspect, insofar as it ordered the omission of a pronouncement on the substantive right discussed in relation to the civil actions filed by the Costa Rican Institute of Electricity and the Attorney General's Office of the Republic against the civil defendants, as well as what was resolved regarding costs, and the remand of the process is ordered to the competent body for the new substantiation of those points, on the basis that the fact attributed by the civil and criminal plaintiffs to the defendants and civil co-defendants was not proven at trial.
• B)The appeal filed by Ms. Yamura Valenciano in favor of the accused [Nombre001] is granted.

B-1) The cause for the crime of improper bribery in its modality of aggravated corruption that had been attributed to the defendant [Nombre001] is declared time-barred, and he is acquitted of all punishment and responsibility for this crime.

B-2) The judgment is partially annulled only insofar as it sentences [Nombre001] to ten years in prison for the crime of Simulation Fraud and in the determination of the amount defrauded according to the relationship between Articles 218 and 216 of the Penal Code, for the purpose of setting the sentencing extremes within which the quantum of the penalty will be fixed. The remand of the cause is ordered so that these two points may be discussed: the amount defrauded shall be fixed according to the procedural rules, and according to this amount, the minimum and maximum extremes of the penalty to be imposed shall be established, and a reasoning of the penalty shall be made in accordance with constitutional requirements and Article 71 of the Penal Code.

B-3) The judgment on the Simulation Fraud remains unaltered in all other aspects, especially regarding the acquittal issued in favor of [Nombre001] for a crime of Simulation Fraud in relation to the transfer of the property registered under Folio Real Number [Valor017], Submatrícula [Valor018], by means of deed No. [Valor019] executed before Notary Public [Nombre025] to the detriment of the Instituto Costarricense de Electricidad and of Collective and Diffuse Interests.

• C)The appeal filed by Attorney Yamura Valenciano on behalf of the accused [Nombre004] is granted. The cause for the crime of improper bribery in its modality of aggravated corruption that had been attributed to the defendant [Nombre004] is declared time-barred, and he is acquitted of all punishment and responsibility for this crime.
• 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 due to the statute of limitations having run; by virtue of the nullity of documentary evidence No. 588, the criminal conviction judgment issued against [Nombre007] is also declared null, and in its place, he is directly acquitted of all punishment and responsibility. The appealed judgment remains unaltered insofar as it acquitted him of two crimes of Illicit Enrichment.

D-2) Regarding the confiscation (comiso) of the vehicle, a Suzuki Grand Vitara XL, license plate No. [Valor032], as a consequence of the punishable act, it is appropriate to grant the ground for appeal, order the nullity of the confiscation, and the return of the vehicle to the person from whom it was seized.

D-3) Regarding the matter of personal court costs (costas personales) in the sum of 10 million colones to which the defendant [Nombre007] was sentenced, to pay for the legal representation provided by the public defenders, this is declared null, and a remand (reenvío) is ordered for its correct determination in this regard.

D-4) Given the manner in which the filed appeals have been resolved, it is unnecessary to rule on the other claims raised by appellants Merayo and Flores regarding the criminal action in their appeals, as their corresponding petitions have been addressed.

• E)The appeal filed by Attorney Mario Navarro on behalf of the co-defendant [Nombre009] is granted.

E-1) By virtue of the nullity of documentary evidence No. 588, the criminal conviction judgment issued against [Nombre009] is also declared null, and in its place, he is directly acquitted of all punishment and responsibility.

E-2) Regarding the confiscation (comiso) of the properties of the Heredia Party registered under the Folio Real system, Matrícula No. [Valor025], Submatrícula [Valor018] in the name of the corporation Punto de Negocios LQC Sociedad Anónima, a corporation belonging to the accused [Nombre009]; as well as the shares of [Nombre009] in the corporation La Selva de La Marina S.A., owner, among others, of the properties registered in the Public Registry under the Folio Real system Matrícula No. [Valor030], Submatrícula [Valor018] and Matrícula No. [Valor031], Submatrícula [Valor018]. In this regard, it is appropriate to order the competent court to return the confiscated properties and shares.

E-3) Given the manner in which the filed appeals have been resolved, it is unnecessary to rule on the other claims raised by Attorney Navarro regarding the criminal action in his appeals, as their corresponding petitions have been addressed.

E-4) Due to the extended effect (efecto extensivo) of the declaration granting the appeal of Attorney Christian Arguedas, and because his objections are not of a personal nature, the decision benefits all civil co-defendants. The judgment is annulled in its civil aspect, insofar as it ordered the omission of a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as well as what was decided regarding costs (costas), and a remand (reenvío) of the proceedings is ordered to the competent court for a new review (substanciación) of those points.

• 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 due to the statute of limitations having run; by virtue of the nullity of documentary evidence No. 588, the criminal conviction judgment issued against [Nombre015] is also declared null, and in its place, he is directly acquitted of all punishment and responsibility.

F-1) Given the manner in which the filed appeals have been resolved, it is unnecessary to rule on the other claims raised by appellants Ramos and Morales regarding the criminal action in their appeals, as their corresponding petitions have been addressed.

• G)The appeal filed by [Nombre021] in his own defense (defensa material) is granted; the cause against him is declared time-barred, and in its place, he is acquitted of all punishment and responsibility for the offense with which he is charged.

G-1) By virtue of the nullity of documentary evidence No. 588, the criminal conviction judgment issued against [Nombre021] is also declared null, and in its place, he is directly acquitted of all punishment and responsibility.

G-3) Regarding the ordered confiscation (comiso) of CERTIFICATE NUMBER [Valor026] RENEWED ON [Valor027]. In this regard, it is appropriate to annul the judgment and order the immediate return of the document to its legitimate owner.

G-4) Given the manner in which the filed appeals have been resolved, it is unnecessary to rule on the other claims raised by the accused regarding the criminal action in his appeals, as his corresponding petitions have been addressed.

G-5) Due to the extended effect (efecto extensivo) of the declaration granting the appeal of Attorney Christian Arguedas, and because his objections are not of a personal nature, the decision benefits all civil co-defendants. The judgment is annulled in its civil aspect, insofar as it ordered the omission of a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as well as what was decided regarding costs (costas), and a remand (reenvío) of the proceedings is ordered to the competent court for a new review (substanciación) of those points.

• H)Because the criminal action against the accused [Nombre018] (R.I.P.) has been extinguished, pursuant to articles 30 subsection a) and 311 subsections d) and e) of the Code of Criminal Procedure, [Nombre018] (R.I.P.) is dismissed (sobreseer) from a crime of PENALTY FOR THE CORRUPTER for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY regarding [Nombre027], as well as from a crime of PENALTY FOR THE CORRUPTER for PROPER BRIBERY in relation to [Nombre026], both to the detriment of PUBLIC FUNCTION PROBITY. By virtue of what has been decided and for procedural economy, a ruling on the grounds of the appeal filed regarding the criminal liability of the accused [Nombre018] is omitted.

H-1) By extended effect, what was decided regarding the civil action for damages is annulled, and a remand (reenvío) is ordered for a new review (substanciación) in accordance with the law. For procedural economy, an express resolution on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the points of the civil action for damages of interest.

H-2) The Tax and Public Function Criminal Court of the Second Judicial Circuit of San José is ordered to proceed with the cancellation of the first-degree mortgage on the registered property Property registered in the Public Property Registry, Province of San José, number [Valor052], in favor of the Supreme Court of Justice, granted as a real security (caución real) in favor of [Nombre018] (R.I.P.), for the sum of two hundred thousand dollars.

• I)The appeal against the judgment filed by the Public Ministry is denied.
• J)The appeal filed by Attorney Mario Gonzalo Soto Baltodano, president with the powers of a generalissimo attorney-in-fact (apoderado generalísimo) without limit of sum of JURISO, S.A., is granted. The confiscation (comiso) of the vehicle, a Suzuki Jimmy, license plate [Valor033], is annulled, and a remand (reenvío) on that point is ordered for a review (substanciación) in accordance with the law, requiring that the appellant here be summoned so that he has the opportunity to exercise the rights that legally correspond to him. By virtue of what has been decided, a ruling on the other proposals made by the appellant is omitted, as most of them allude to substantive aspects that must be elucidated in the remand ordered here.
• K)By extended effect, 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; ordering a remand (reenvío) for a new review (substanciación) in accordance with the law regarding the civil action for damages filed on behalf of the Procuraduría General de la República. For procedural economy, an express resolution on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the points of the civil action for damages of interest.
• L)By extended effect, the appeal filed by Attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, in their capacity as special judicial attorneys-in-fact for the civil defendant Alcatel-Lucent France (formerly Alcatel Cit), is granted; ordering a remand (reenvío) for a new review (substanciación) in accordance with the Law regarding the civil action for damages and its costs (costas). For procedural economy, an express resolution on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the points of the civil action for damages of interest.
• M)By extended effect, the appeal filed 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, is granted; ordering a remand (reenvío) for a new review (substanciación) in accordance with the Law regarding the civil action for damages and its costs (costas). For procedural economy, an express resolution on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the points of the civil action for damages of interest.
• N)The appeal filed by Attorney Juan Luis Vargas Vargas, special judicial attorney-in-fact for [Nombre002], president, with generalissimo powers without limit of sum of the corporation Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, is granted. The confiscation (comiso) ordered on the property registered in the Public Property Registry, Guanacaste Region, Folio Real system Matrícula [Valor022], Submatrícula [Valor018], is revoked.
• Ñ)The immediate release of the accused [Nombre015], [Nombre009], and [Nombre001] is ordered, unless another cause prevents it. In the case of [Nombre001], by virtue of what has been decided in this judgment, the conviction for one crime of Simulation Fraud remains unaltered, and a remand (reenvío) has been ordered for a new review (substanciación) regarding the amount of the assets subject to said offense and regarding the determination of the penalty.

His release is ordered so that he shall remain in that condition pending the remand where such aspects will be discussed, since the condition of family, domiciliary, and employment rootedness allows for the assessment that he will remain attentive to the process pending the definition of the annulled aspects.

Alfredo Chirino Sánchez Jorge Luis Arce Víquez Sandra Eugenia Zúñiga Morales Judges and Judge of the Criminal Sentence Appeals Court Defendant: [Nombre009] and others Victim: Instituto Costarricense de Electricidad and another Crime: Illicit enrichment (Enriquecimiento ilícito) and others KJIMENEZO and Notarial Services QC S.A.; Mr. José Miguel Villalobos Umaña, acting as defense counsel for Mr. [Nombre021]; Messrs. [Nombre001], [Nombre009], [Nombre015], and [Nombre021], in a filing authenticated by Mr. José Miguel Villalobos Umaña; Messrs. Alejandro Batalla Bonilla and José Luis Campos Vargas, acting as Special Judicial Attorneys-in-Fact for the company Alcatel-Lucent France (formerly Alcatel Cit); Messrs. Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, acting as representatives of the Procuraduría General de la República; Mr. Juan Luis Vargas Vargas, acting as Special Judicial Attorney-in-Fact for Mr. [Nombre001], who is the President with powers of Unlimited General Attorney-in-Fact of the company named Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; Ms. Yamura Valenciano Jiménez, acting as defense counsel for Messrs. [Nombre001] and [Nombre004]; Mss. Criss González Ugalde and Maribel Bustillo Piedra, acting as representatives of the Ministerio Público; Messrs. Federico Morales Herrera and Erick Ramos Fallas, acting as defense counsel for Mr. [Nombre015]; and Mr. Germán Calderón Lobo, acting as representative of the Instituto Costarricense de Electricidad.

**WHEREAS:** **I.-** That by judgment number 167-2011, issued at 3:00 p.m. on April twenty-seventh, two thousand eleven, the Tribunal Penal de Hacienda y la Función Pública of the Second Judicial Circuit of San José, resolved: *"**THEREFORE:** In accordance with the provisions of Articles 39 and 41 of the 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, and 358 of the Código Penal; the rules in force on civil liability from the 1941 Código Penal; 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 resolved:* ***A) Reclassifications and Incidental Matters:*** ***A.1) Reclassifications:*** [sic] *unanimously, the acts charged against [Nombre021] are reclassified from the crime of Aggravated Corruption derived from Improper Bribery (Corrupción agravada derivada del Cohecho impropio) to the crime of Illicit Enrichment (Enriquecimiento ilícito); likewise, the acts attributed to [Nombre024], considered by the prosecution as constituting the crime of Illicit Enrichment, are reclassified to the crime of Receiving Stolen Goods (Receptación) provided for in Article 323 of the Código Penal. By majority, with the dissenting vote of co-judge Camacho Morales, the three crimes of Illicit Enrichment in material concurrence (concurso material) attributed to [Nombre007] are reclassified to one crime of Illicit Enrichment.* ***A.2) Statute of Limitations Defenses (Excepciones de prescripción):*** *unanimously, the statute of limitations defense (excepción de prescripción) filed on behalf of the accused [Nombre024] regarding the crimes of Receiving Stolen Goods and Real Concealment (Favorecimiento Real) provided for in Articles 323 and 325 of the Código Penal is upheld, and the statute of limitations defense filed on behalf of [Nombre007] for one crime of Illicit Enrichment, as reclassified, is rejected.* ***A.3)*** *By majority, with the dissenting vote of co-judge Camacho Morales, the statute of limitations defenses filed on behalf of [Nombre012] for four crimes of Illicit Enrichment and on behalf of [Nombre021] for one crime of Illicit Enrichment, as reclassified, are rejected.* ***A.4)*** *Unanimously, the defense of res judicata (cosa juzgada) filed on behalf of the accused [Nombre021] is rejected.* ***A.5)*** *By majority, with the dissenting vote of co-judge Camacho Morales, the objection (protesta) for defective procedural activity filed in defense of the defendant [Nombre021] and requested to be extended to the remaining accused concerning the bank evidence whose illegality is alleged and which was obtained in a criminal proceeding separate from this one, is rejected.* ***A.6)*** *By majority, with the dissenting vote of co-judge Camacho Morales, the remaining objections, incidences, and defenses (excepciones) related to the charged crimes and filed by the parties are rejected.* ***B) Acquittals and Criminal Liability of the Accused:*** ***B.1)*** *Unanimously, due to the statute of limitations for the criminal action, [Nombre024] is acquitted of all penalty and liability for the crime of RECEIVING STOLEN GOODS (RECEPTACIÓN), as reclassified, and of REAL CONCEALMENT (FAVORECIMIENTO REAL), both to the detriment of the ADMINISTRATION OF JUSTICE (ADMISTRACIÓN DE JUSTICIA); for lack of criminality (atipicidad), [Nombre015] is acquitted of one crime of CORRUPTER'S PENALTY (PENALIDAD DEL CORRUPTOR) in relation to the crime of AGGRAVATED CORRUPTION by IMPROPER BRIBERY attributed to [Nombre021] and reclassified to the crime of ILLICIT ENRICHMENT (ENRIQUECIMIENTO ILÍCITO) to the detriment of PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA). Likewise, unanimously, applying the principle of In dubio pro reo, [Nombre012] is acquitted of all penalty and liability for four crimes of ILLICIT ENRICHMENT to the detriment of PROBITY IN PUBLIC SERVICE, and [Nombre001] is acquitted of one crime of SIMULATION FRAUD (FRAUDE DE SIMULACIÓN) in connection with the transfer of the property registered under Title (Matrícula) No. [Valor017], Sub-registration (Submatrícula) [Valor018], by deed No. [Valor019] executed before notary public [Nombre025], to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and the COLLECTIVE AND DIFFUSE INTERESTS (INTERESES COLECTIVOS Y DIFUSOS).* ***B.2)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre015] is declared a criminally liable co-perpetrator (coautor responsable) of four crimes of CORRUPTER'S PENALTY for AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY, in material concurrence, in relation to [Nombre004], [Nombre001], [Nombre026], and [Nombre027], to the detriment of PROBITY IN PUBLIC SERVICE, imposing for each crime a penalty of FIVE YEARS IN PRISON for a total of TWENTY YEARS IN PRISON, which, applying the rules of material concurrence, is reduced to FIFTEEN YEARS IN PRISON, a sentence to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. The absolute disqualification (inhabilitación absoluta) requested by the Fiscalía is rejected due to the lack of the legal prerequisites for its application.* ***B.3)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre009] is declared a criminally liable co-perpetrator of three crimes of CORRUPTER'S PENALTY for AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY in relation to [Nombre004], [Nombre001], and [Nombre026], to the detriment of PROBITY IN PUBLIC SERVICE, imposing for each crime a penalty of FIVE YEARS IN PRISON for a total of FIFTEEN YEARS IN PRISON, a sentence to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been credited. The absolute disqualification requested by the Fiscalía is rejected due to the lack of the legal prerequisites for its application.* ***B.4)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre018] is declared a criminally liable co-perpetrator of one crime of CORRUPTER'S PENALTY for AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY regarding [Nombre027], and a criminally liable perpetrator of one crime of CORRUPTER'S PENALTY for PROPER BRIBERY (COHECHO PROPIO) in relation to [Nombre026], both to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of FIVE YEARS IN PRISON for the first and FIVE YEARS IN PRISON for the second, for a total of TEN YEARS IN PRISON, a sentence to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. The absolute disqualification requested by the Fiscalía is rejected due to the lack of the legal prerequisites for its application.* ***B.5)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre004] is declared a criminally liable perpetrator of the crime of AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of FIVE YEARS IN PRISON, to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. Furthermore, he is DISQUALIFIED (INHABILITA) for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.* ***B.6)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre001] is declared a criminally liable perpetrator of one crime of AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY, to the detriment of PROBITY IN PUBLIC SERVICE, and one crime of SIMULATION FRAUD regarding the vehicles transferred by deed No. [Valor020] before notary public [Nombre028] to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and the COLLECTIVE AND DIFFUSE INTERESTS, imposing a penalty of FIVE YEARS IN PRISON and TEN YEARS IN PRISON respectively, for a total of FIFTEEN YEARS IN PRISON, a sentence to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.* ***B.7)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre007] is declared a criminally liable perpetrator of one crime of ILLICIT ENRICHMENT, as reclassified, committed to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of TWO YEARS IN PRISON to be served in the place and manner determined by the respective prison regulations, after crediting the preventive detention served. Likewise, he is disqualified for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions. As the legal prerequisites are met, he is granted the BENEFIT OF CONDITIONAL EXECUTION (BENEFICIO DE EJECUCIÓN CONDICIONAL) of the custodial sentence for a probationary period of five years, during which he must not commit any intentional crime for which he is sanctioned with a penalty of six months or more in prison, in which case this benefit shall be revoked.* ***B.8)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre012] is declared a criminally liable instigator of the crime of AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of FIVE YEARS IN PRISON to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. Furthermore, he is DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.* ***B.9)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre021] is declared a criminally liable perpetrator of one crime of ILLICIT ENRICHMENT, as reclassified, committed to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of TWO YEARS IN PRISON to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been credited, without considering the concurrence of the legally established requirements for him to be eligible for the benefit of conditional execution of said sentence. Furthermore, he is DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.* ***C) Civil Aspects:*** ***C.1)*** *Unanimously, regarding the CIVIL ACTION FOR DAMAGES (ACCIÓN CIVIL RESARCITORIA) filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD:* ***C.1.1)*** *The civil lawsuit filed by the aforementioned institute against [Nombre015] is deemed withdrawn (desistida), who expressly waived so that the civil plaintiff could be ordered to pay costs.* ***C.1.2)*** *No ruling is made on the merits of the discussed right in relation to the civil actions brought 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 lawsuit brought by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the aforementioned defendants is resolved without a special ruling as to costs for both parties (sin especial condenatoria en ambas costas).* ***C.1.4)*** *Once the judgment becomes final (firme), the lifting of the attachments (embargos) decreed in favor of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD concerning the aforementioned civil lawsuits is ordered.* ***C.1.5)*** *The request for condemnation for damages and losses (daños y perjuicios) caused by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD through the attachments executed to guarantee the outcome of this proceeding is rejected.* ***C.2)*** *Unanimously, regarding the CIVIL ACTION FOR DAMAGES brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA:* ***C.2.1)*** *No ruling is made on the merits of the discussed right in relation to the civil actions 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 special award of costs to either party.

**C.2.3)** Once the judgment becomes final, the lifting of the attachments (embargos) decreed in favor of the PROCURADURÍA GENERAL DE LA REPÚBLICA in relation to the filed civil claims is ordered.

**C.2.4)** The request for an award of damages (daños y perjuicios) caused by the PROCURADURÍA GENERAL DE LA REPÚBLICA through the attachments (embargos) executed to guarantee the outcome of this proceeding is rejected.

**D) Forfeiture (Comiso) and declaration of document falsity:** By majority, with the dissenting vote of co-judge Camacho Morales, the forfeiture (comiso) of the following assets in favor of the State is ordered:

**D.1)** The properties registered in the Public Property Registry: Partido de Guanacaste under the Folio Real system, Title Number [Valor021], Sub-title [Valor018]; Partido de [...] under the Folio Real system, Title Number [Valor022], Sub-title [Valor018]; Partido de [...], Folio Real system, Title Number [Valor023], Sub-title [Valor024]; and Partido de [...] registered under the Folio Real system, Title Number [Valor025], Sub-title [Valor018].

**D.2)** The investment certificate No. [Valor026], which was renewed in certificate No. [Valor027] for the amount of five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five cents, 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, economic support for checks No. [Valor028] from Banco Interfin and No. [Valor029] from Bank of New York Delaware, both drawn to [Nombre026] and deposited to the order of this court.

**D.4)** The shares of [Nombre009] in the company La Selva de La Marina S.A., owner, among others, of the properties registered in the Public Registry under the Folio Real system, Title Number [Valor030], Sub-title [Valor018] and Title Number [Valor031], Sub-title [Valor018].

**D.5)** The vehicles: Suzuki Grand Vitara XL, license plate number [Valor032]; and Suzuki Jimny, license plate number [Valor033].

**D.6)** The document falsity (falsedad instrumental) of public deed No. [Valor020] granted before notary public [Nombre028] by [Nombre001] and [Nombre029] is declared; therefore, the transfer of assets ordered in said instrument by the sentenced individuals [Nombre068] must be annulled, proceeding with the corresponding registry corrections.

**E) Precautionary measures (Medidas cautelares):** **E.1) Pretrial detention (Prisión preventiva):** by majority, with the dissenting vote of co-judge Camacho Morales, the request of the Prosecutor's Office is granted and the precautionary measure (medida cautelar) of pretrial detention (prisión preventiva) is decreed against [Nombre009] and [Nombre001] for a period of **eighteen months**, to be calculated from April twenty-seventh, two thousand eleven, until October twenty-seventh, two thousand twelve; and against [Nombre015] for a period of **twelve months**, to be calculated from April twenty-seventh, two thousand eleven, until April twenty-seventh, two thousand twelve. The foregoing is due to the change in the status held by the defendants [Nombre015], [Nombre009], and [Nombre001] in relation to this proceeding, as well as the nature and quantum of the penalty imposed on each of them, which constitutes sufficient reason for, while at liberty, each of them to seek viable alternatives to evade their criminal responsibility and frustrate the purposes of the Administration of Justice, whose protection and foundation are of constitutional order.

**E.2) Alternative measures (Medidas supletorias):** by majority, with the dissenting vote of co-judge Camacho Morales, at the request of the Public Prosecutor's Office, the following alternative precautionary measures substitute to pretrial detention (medidas cautelares sustitutivas de la prisión preventiva) are imposed on the sentenced individuals [Nombre004], [Nombre012], [Nombre018], and [Nombre021]: a prohibition from leaving the country from April twenty-seventh, two thousand eleven, until the judgment becomes final, for which each of the sentenced individuals must deposit their passport at the seat of this Court within twenty-four hours following the issuance of this resolution; and the obligation to appear before this Office on the twenty-seventh day of each month, extendable to the next business day when that day is a non-business day, for which a registry must be kept where they sign. The described measures will take effect upon the reading of the operative part of the judgment and until it becomes final, with the warning that in the event of non-compliance with the established conditions or the indicated alternative precautionary measures (medidas cautelares sustitutivas), the now-deferred pretrial detention (prisión preventiva) could be applied.

**F) Other relevant aspects:** **F.1) Costs of the proceeding (Gastos del proceso):** unanimously, the costs of the criminal proceeding are to be borne by the State.

**F.2) Personal costs (Costas personales):** unanimously, the costs of the proceeding regarding the exercise of the criminal action are to be borne by the defendants. Given the proven economic solvency of the sentenced individuals [Nombre004], [Nombre001], [Nombre018], and [Nombre007], who opted for legal advice from Public Defense attorneys of the Judiciary, in accordance with Articles 152 of the Organic Law of the Judiciary and 265 of the Code of Criminal Procedure, each must pay the fees of the professionals who assisted them during this proceeding. This item is set at the sum of TEN MILLION COLONES, covering their professional performance from their appearance and up to the issuance of this judgment, but not the eventual appeals and other procedures required after its issuance. Said sum must be paid by each of the accused to the Judiciary within the fifteen days following the date the judgment becomes final, with the consequent attachment and auction (embargo y remate) of their assets in the event of non-compliance with this obligation.

**F.3) Communications (Comunicaciones):** by majority, with the dissenting vote of co-judge Camacho Morales, issue the pertinent communications to the Dirección General de Migración y Extranjería regarding the prohibition from leaving the country for [Nombre004], [Nombre018], [Nombre012], and [Nombre021]. Once this judgment is final, the corresponding official letters will be sent to the Tribunal Supremo de Elecciones regarding the absolute disqualifications (inhabilitaciones absolutas) of [Nombre004], [Nombre012], [Nombre021], [Nombre001], and [Nombre007] from holding public office by popular election, and to the Civil Service for the absolute disqualifications from appointment to other public employment, positions, and commissions. Communicate the document falsity (falsedad instrumental) declared regarding the deed granted before notary public [Nombre028] to the Public Property Registry. Send the communications to the Instituto Nacional de Criminología, the Juzgado de Ejecución de la Pena, and the Judicial Registry for their corresponding actions. NOTIFY.-" (sic.).

**II.-** That against the preceding ruling, appeals for cassation, reclassified as appeals for appeal, were filed by: Dr. [Nombre012], together with his defense attorneys, Rafael Gairaud Salazar and Cristian Arguedas Arguedas; attorney Hugo Santamaría Lamicq, as defender of Mr. [Nombre018]; attorney Mario Gonzalo Soto Baltodano, as President with powers of General Attorney-in-Fact without limit of sum of the company Juriso S.A.; attorneys Wilson Flores Fallas and Nazira Merayo Arias, as defenders of Mr. [Nombre007]; attorney Mario Navarro Arias, as defender of Mr. [Nombre009] and Special Judicial Attorney-in-Fact 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 defender of Mr. [Nombre021]; Messrs. [Nombre001], [Nombre009], [Nombre015], and [Nombre021], in a document authenticated by attorney José Miguel Villalobos Umaña; attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, as Special Judicial Attorneys-in-Fact for the company 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 with powers of General Attorney-in-Fact without limit of sum of the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; attorney Yamura Valenciano Jiménez, as defender of Messrs. [Nombre001] and [Nombre004]; attorneys Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Public Prosecutor's Office; attorneys Federico Morales Herrera and Erick Ramos Fallas, as defenders of Mr. [Nombre015].

**III.-** That, having conducted the respective deliberation in accordance with the provisions of Article 465 of the Code of Criminal Procedure, the Court considered the issues raised in the appeal.

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

Drafted by the Judge of Appeal of Criminal Sentence **Chirino Sánchez**; and, **CONSIDERING:** **I.- APPEAL OF DR. [Nombre012].** Mr. [Nombre012], in the exercise of his own defense, has challenged judgment No. 167-2011, issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José at 3:00 p.m. on April 27, 2011, which declared him the responsible perpetrator of a crime of "Instigation to the crime of Aggravated Corruption in the form of Improper Bribery," to the detriment of Probity in Public Function, imposing a penalty of five years in prison and another of twelve years of disqualification (inhabilitación) from obtaining and exercising public employment, positions, or commissions. The accused [Nombre012] has expressed his disagreement with the guilty verdict through successive documents, the first of which is an "appeal" filed on June 2, 2011 (cf. Volume XXXV, pages 16762 to 16893). The second is an "appeal for cassation" filed on August 1, 2011 (cf. Volume XXXVII, pages 17408 to 17648). The third is an "addition" to his appeal for cassation on procedural grounds, a submission filed on August 5, 2011, alleging violation of the principle of natural judge (cf. Volume XXXVII, pages 17908 to 17903). In Volume XXXVIII, other documents of his are observed that also need mention, on pages 171854, 171855, 171909 to 171910, and 171945; as in them, he refers to the admissibility of his "addition" and offers evidence in this regard. Finally, in Volume XXXIX is the "appeal of sentence" (filed on February 10, 2012, cf. pages 172346 to 172686), by which Dr. [Nombre012] reclassifies his previous cassation claims into an appeal of criminal sentence, in accordance with Transitional Provision III of Law No. 8837 of May 3, 2010 ("Creation of the appeal of the sentence, other reforms to the impugnation regime and implementation of new rules of orality in the criminal process"). **Presentation.-** This last document begins with a "Summary" of thirty-one pages in which Dr. [Nombre012] explains that he presents the reclassification of the appeal and the expansion that he timely filed against judgment No. 167-2011. He specifically challenges what was ordered by the majority vote of Judges Rosaura García Aguilar and Ileana Méndez Sandí (Judge Jorge Camacho Morales dissented). Throughout this compendium or preliminary summary of the appeal, he alleges the non-observance of Articles 24, 30, 33, 34, 35, 39, 40, 152, 153, and 154 of the Political Constitution; 1, 2, 3, 5, 7, 8, 10, 28 of the Universal Declaration of Human Rights; 2, 5, 17, 18, and 26 of the American Declaration of the Rights and Duties of Man; 2.1, 3, 7, 9.3, 10, 14.1, 14.3 subsections d) and f) of the International Covenant on Civil and Political Rights; 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 ("Pact of San José"); 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; 46, 72 subsections a), e), and f), and 342 of the Criminal Code; of the Law on the registration, seizure, and examination of private documents and intervention of communications (Law No. 7425, in force since its publication in La Gaceta of September 8, 1994); and of Article 62 subsection a) of Law No. 8422 of October 6, 2004 (Law against Corruption and Illicit Enrichment in Public Function, in force since its publication in the official newspaper La Gaceta No. 212 of October 29, 2004); the Convention against Torture and Cruel or Degrading Treatment or Punishment; the Inter-American Convention to Prevent and Punish Torture; thereby requesting that the judgment be annulled in accordance with Articles 458, 459, and 465 of that same legal text, the guilty verdict be annulled, and his acquittal be declared. He warns that due process has been radically violated to his detriment, starting from October 15, 2004 itself, when—voluntarily and after prior notice to 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 considers that there are many non-observances and erroneous applications of the law in the judgment regarding the determination of the facts that were deemed proven by the majority of the court (which do not specify circumstances of place and time, who participated, what the reasons for the actions were, how the payments occurred and what they correspond to, in relation to the contracts between Alcatel, regarding the false participation attributed to him before [Nombre026] for debt collection from Alcatel; regarding supposed payments made to him by [Nombre026] with Alcatel resources), a determination of facts that becomes arbitrary. In general terms, he questions the legitimacy of the evidence admitted to the trial and the assessment of the evidence (which does not conform to the rules of sound criticism), the legal reasoning of the judgment (which is incomplete and in many cases contradictory), and the determination of the imposed penalty. He argues that the statement—which is not testimonial evidence—of the confessed and collaborating defendant [Nombre026] has been erroneously assessed (as there is no external element to support or corroborate his testimony) to link him to the crime, and that the existence of documents is falsely affirmed that in no way correspond to what the judgment argues, which illegitimately and contradictorily anchors itself to bank evidence brought from Panama, without judicial authorization, violating the constitutional right to privacy, despite the fact that the court itself—unanimously—declared other evidence of the same origin illegitimate, precisely for those reasons, just as illegal evidence is accepted because it was received outside the term of the judicial authorization or from entities other than those ordered to deliver it. The majority of the court refused to hear and resolve serious violations in the negotiation and judicial approval of the opportunity criterion for [Nombre026]. He was subjected to the modification of a statute of limitations condition that already protected him, based on a law issued after the act that protected him occurred. He was judged in violation of his right to a natural judge, and the maximum penalty was imposed for an alleged Instigation that not even [Nombre026] himself dared to declare, as he instead repeatedly insisted that he accepted the corrupting offer before the conversation he falsely claims to have had with him to inform him of it. Despite repeated requests from his defenders, the other contracts between Alcatel and Servicios Notariales Q.C. were not investigated.

of prior and different purchases by ICE from Alcatel, to determine whether irregularities occurred in them or whether the alleged payments received could have originated from other lawful causes. It was an error by the majority of the court to blindly accept the statements of [Nombre026] as confirmed, since the truth is that he incurred in evident contradictions and falsehoods, according to the rules of sound criticism. The observations that the expert witnesses for his technical defense ([Nombre030] and [Nombre031]) made regarding the Forensic Auditor's statements were not analyzed in a reasoned manner, despite the serious limitations of their reports, since the forensic experts did not cross-check or verify the information in cases of inconsistencies in dates, transaction times, bank paperwork, client signatures, or the constitution and liquidation of certificates of deposit (certificados de inversión), because they relied completely on what the banks told them. Throughout the debate, a series of suspicious indicators regarding the actions of Banco Cuscatlán, Cuscatlán International Bank, and Grupo Cuscatlán was clearly established, but knowledge of these circumstances did not lead the Public Prosecutor's Office to investigate whether money laundering laws were being violated, nor did the forensic experts bother to make inquiries in that regard, or at least communicate it to SUGEF. The lady judges who sign the majority vote believe [Nombre026] regarding the alleged meetings in [...] and at the house of [Nombre012], without having any other evidentiary support than the migration movements recorded for the alleged participants, records that perhaps only allow establishing that [Nombre026], Alcatel representatives, and the accused were in the country on those dates. To give credibility to [Nombre026], regarding the meetings in [...] and at the appellant's house, the lady judges state that the subsequent payments confirm the instigation, but that conclusion is not derived with certainty, because the sums subsequently received—if they existed—could have come from causes other than a crime: "It is guilt that must be proven, not innocence," states the complainant, and he adds that the existence of a criminal plan by Alcatel or that [Nombre026] had voted for the award of the four hundred thousand lines, are also not circumstances that prove with certainty that [Nombre012] acted as an instigator. He emphasizes that [Nombre026] himself, on at least three occasions, declared at trial that he had already accepted Alcatel's offer in principle (he requests to see the statements given at trial on September 8 at 3:40:40 p.m. and September 9, at 8:11 a.m. and at 1:45 p.m., all in the year 2010), so he did not need convincing to carry out his plan; the witnesses and [Nombre026] himself agreed that the appellant never asked any director or official of ICE for anything regarding the bid for the four hundred thousand GSM cellular lines, nor regarding any other purchase or contract. [Nombre026] does not even claim to have informed [Nombre012] in the false meeting of his purported commitments to Alcatel, much less to have told him that he needed his help to fulfill them. The lady judges blindly believe the accused [Nombre026], despite the contradictions he incurred, despite the fact that both of them heard him declare about his unjustified income when he was Minister of Housing and the other income related to other alleged crimes confessed by [Nombre026] and that were corroborated by the O.I.J. *All possible* bank accounts, in colones or dollars, of [Nombre026] and his wife were not investigated, because the Public Prosecutor's Office did not request it, and for that same reason, the other possible crimes of [Nombre026] were also not investigated, but he was presumed innocent, while for the appellant [Nombre012] the burden of proof was reversed, this being so because—according to the judges—he did not prove a different nature as the reason for the alleged payments imputed by [Nombre026]. In contrast, Judge Camacho Morales, in his dissenting or minority vote, carries out a careful analysis that demonstrates that the corroboration of a promise of a gift by the alleged corruptors is not established in any case and that the dates indicated in the majority vote are not compatible with a congruent explanation of the tasks entrusted to [Nombre026]. The funds that [Nombre012] received from [Nombre026]—asserts the appellant—actually correspond to a loan whose payment his lawyers deposited starting in 2004, but the lady judges assert that it is not a loan only because [Nombre026] states that it is not. Judge Camacho Morales warned of the illegality of evidentiary item 588, which gave rise to the case and which was received without a judicial order, in clear violation of the constitutional order. It is a situation identical to that of another evidentiary item also brought from Panama, but which was unanimously declared illegal by the same criminal court in this trial, by means of a resolution at 8:00 a.m. on May 14, 2010, for having omitted that fundamental requirement of the judicial order, necessary for the lifting of bank secrecy to be lawful. The Public Prosecutor's Office alleged that evidentiary item 588 is valid because the consent of the legal representative of the company whose bank relationships in Panama were brought to the debate was given. That purported authorization was given almost seven years after the illegal obtaining of the evidence and three days after the Trial Court issued its resolution at 8:00 a.m. on May 14, 2010, which declared the Panamanian evidence obtained without judicial authorization illegal; and it was given without verifying the legal capacity of the alleged representative. Regarding the bank evidence obtained in application of the "Central American Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama," Judge Camacho Morales is correct when he says that the legal formalities established as a guarantee of a fundamental right must be complied with *in every case* because they are matters of public policy and are not waivable by private individuals. And the other evidence derived from item No. 588 is in turn illegitimate, so that upon its suppression, there is no evidence of any fact in the accusation. The invalidity of this evidence was decreed by the Criminal Chamber of the Supreme Court of Justice two weeks after the issuance of the judgment being challenged in this venue, when the Third Chamber of the Supreme Court of Justice [refers to judgment No. 499 of 11:45 a.m. on May 11, 2011] resolved the appeals filed against the judgment issued in the "Caja-Fischel" case, which refers not only to the same evidence, but also to another matter in which, as happens in this one, value was sought to be given to it through the authorization of [Nombre032]. But there are also nineteen other bank evidentiary items [which he requests be considered as evidence of this grievance] that suffer from the original defect that the judicial resolution did not order the *lifting of bank secrecy*, but merely gave an order for the examination, registration, and seizure of the documentation (if the lifting is not ordered, the bank cannot provide the information, even if prosecutors or police officers were authorized for the seizure of the documentation). The violations occurred first regarding the procedure followed to obtain the bank evidence, from both Banco Interfin and Sociedad Acobo Fondos de Inversión (the O.I.J. officers carried out the seizure after the deadline ordered by the Guarantee Judge for the diligence to be performed had expired), and later when the court commits the error of validating that illegally obtained and incorporated evidence in the debate, which influenced an incorrect determination of the facts. According to the vote of Judge Camacho Morales, the procedure followed for granting the prosecutorial discretion criteria (criterio de oportunidad) to [Nombre026] was defective and illegal, it was improper to authorize it, and the resolution of the Criminal Court that agreed to it is ineffective because it lacks grounds; hence, the statement that said accused gave during the debate is unlawful. The lady judges of the Court rejected the protest for defective procedural activity, declaring themselves incompetent to resolve the defects in its processing and judicial approval (cf. resolution at 1:30 p.m. on September 2, 2010, volume XXXVIII, folios 13676 to 13736 verso). The prosecutorial discretion criteria was applied to [Nombre026], he was disproportionately benefited as a supposed "collaborator," even though he is not an accused whose conduct demonstrates a lesser culpability compared to that attributed to the other agents. The Public Prosecutor's Office concealed from the criminal judge who approved the prosecutorial discretion criteria, determining information to establish the culpability of his conduct, for other actions of his that could also be considered criminal, but against which the Prosecutor's Office did not subsequently exercise criminal action, due to the application of the prosecutorial discretion criteria, so that de facto he was granted impunity beyond jurisdictional control. Regarding the statute of limitations for the criminal action, he reproaches that the lady judges incorrectly applied subsection (a) of Article 62 of the Law against Corruption and Illicit Enrichment in the Public Service, Law No. 8422 of October 6, 2004 (in force since its publication in La Gaceta No. 212 of October 29, 2004), which eliminates the reduction of the term by half established by Article 33 of the Code of Criminal Procedure that operates with the preliminary statement (indagatoria). The first formal accusation occurred with the statement of October 15, 2004, and produced the effects of the law in force at that time; that effect cannot be modified by a subsequent law, as it would imply a retroactive application of the law to his detriment, infringing Article 34 of the Political Constitution. There was an infringement of the principle of the natural judge (juez natural), because Judge Rosaura García was brought from the Judicial Academy to preside over the Trial Court and as soon as the debate ended she returned to the Judicial Academy, despite which she continued returning to the Court to participate in instances of this process, unlike Judge Camacho Morales, who transfers to another judicial seat and does not participate in an instance of resolving a request for clarification and addition (in which Judge Rosaura García did intervene). The Trial Court prevented him from exercising his material defense. Given his professional specialty, Dr. [Nombre012] requested the Court to allow him to personally exercise his material defense, questioning the expert witness [Nombre033], in relation to the quantification of the social damage caused by the acts of corruption attributed to the civil defendants, but the Court denied him the exercise of that right, for which his defense reserved cassation. The lady judges who issued the conviction acted conditioned and influenced by social circumstances. An event of the media and political dimension such as the criminal trial against a former President of the Republic and Secretary General of the Organization of American States carries an immense emotional charge, also because of the public mockery that was mounted when he voluntarily returned to the country and the climate that has been experienced at the national level since then, all of this magnified by the actions of the then President [Nombre034], Attorney General Francisco Dall'Anese Ruiz, political leaders, and the media. There was a "staging of indictment" and thus he was pre-condemned by public opinion in a trial by media, with greater harshness because he is a public figure. That parallel trial exerts a pressure that influenced the judicial process, because it created in the subconscious of the lady judges the idea that only a conviction would fulfill popular expectations and defend the prestige of the Judiciary. "Judges cannot depart from being the mouth of the law," emphasizes the appellant, but the judges, subconsciously predetermined or biased by the weight of that social environment, opted for unsubstantiated interpretations to conclude in his conviction, despite the fact that there was no demonstration of his guilt, throughout a tortuous and degrading process, in which he was even unduly deprived of his liberty. The penalty imposed on him is contradictory, lacks substantiation, and is not objective. The maximum penalty was imposed on the appellant, while [Nombre026], who appears linked to more criminal acts and with more accused persons, had the prosecutorial discretion criteria applied. When setting the penalty, they only refer to his condition as Ex-President, but his positive or favorable personal conditions, prior and subsequent to the facts, were not taken into account, such as his age and his behavior throughout the entire process. The lady judges also do not explain why they deny the benefit of conditional execution of the sentence, when all the objective and subjective conditions for its application are met, because he would be a first-time offender, he has a family, he performs work as a professor at the University of Costa Rica despite being retired. After this "Summary," between folios 172377 and 172378, he develops an "Index" that lists the different sections and claims that are developed throughout the appeal, in the following manner: **First Section.- Disagreement with the determination of the facts.** The determination of facts held as certain in the judgment violates the rules of logic, psychology, and experience in a gross manner and, in many cases, they are contradictory among themselves, so they lack substantiation and their determination becomes arbitrary. The facts said to be accredited do not correspond to the evidence presented at the debate (cf. Appeal, folios 172381 to 172382). **A. False determination of the decision to corrupt.** The accreditation of proven facts numbers 26, 27, and 48 of the judgment is challenged, which are considered mere assumptions, arbitrary and lacking grounds (cf. appeal, folios 172382 to 172386). **B. False determination of the object of the contracts between Alcatel and Servicios Notariales QC.** The accreditation of proven facts of the judgment numbers 48 to 59 is refuted. The contracts prior to the four consultancy contracts between Alcatel and Servicios Notariales QC that referred to fixed lines were not investigated by the Public Prosecutor's Office, nor taken into account by the lady judges, despite the fact that those prior contracts could be related to other illegitimate actions by [Nombre026] prior to the contracting of the four hundred thousand GSM cellular lines. Logic indicates that when a situation can be caused by different and independent facts, it is not appropriate to attribute it to only one of them without eliminating the possibility that others may have occurred. "Why," asks the appellant, "if the contracts had been coming from before, if they refer to other sales to ICE, if these other sales to ICE occurred, if they occurred when [Nombre026] was director of ICE, if the transfers of resources from Alcatel to [Nombre026] refer to those other facts, and if the OIJ expert witnesses say they are payments for those facts, why is that possibility rejected outright?" The conclusion does not follow from the premises (non sequitur, says the appellant, who again reproaches the lack of objectivity of the lady judges, cf. folios 172386 to 172393). **C. False statements about my supposed participation in the supposed actions of [Nombre026] to collect from Alcatel.** The accreditation of proven facts numbers 64, 68, 69, 70, 71, 74, and 75 is rebutted, which are not clear or precise, contradict number 48, and some of them have no support other than the statement of the collaborating accused [Nombre026], which is not testimony but the declaration of an interested accused, whose statements necessarily had to be corroborated by other evidentiary means, which did not happen in the present case. Going to Paris to make a phone call seems very strange, but it is an incredibly nonsensical argument to state that [Nombre026] went to Paris in 2001 to make a call that was made in mid-2000, which denotes that the lady judges shamelessly manipulate the evidence, against the most elementary rules of experience (cf. folios 172393 to 172395). **D. Unfounded statements about supposed meetings of [Nombre026].** The accreditation of proven facts of the judgment numbers 85 to 93 is objected to, because they have no support other than the statement of the collaborating accused [Nombre026]. For the lady judges, if the accused [Nombre026] says that they met with Mr. [Nombre035] in [...], it is enough to verify that he had not left the country to corroborate his statement. According to [Nombre026], he accepts the offer made to him in principle (see statements of [Nombre026] of September 8 at 3:41 p.m. and September 9 at 1:45 p.m., of the year 2010) and what he may have reflected on when he arrived at his house has no other support than his statement. The percentage of participation mentioned has no relationship with the amounts that [Nombre026] says he delivered to [Nombre012]. According to the statements of the confessed accused [Nombre026] before the Court, the reason he had for seeking out [Nombre012]—in that meeting of which there is no evidence whatsoever—would have been to feel protected given the magnitude of the facts and because of his closeness to Mr. [Nombre012], to be able to fulfill the three tasks that, according to [Nombre026], Alcatel entrusted to him through its officials. Proven facts 85 to 92 are only deduced from the last statements issued as consideration for an agreement with the Public Prosecutor's Office at the date of making the arrangement for an abbreviated procedure: "This happens at the beginning of May 2005," says the appellant, "when the statement of [Nombre026] is given for the first time that his acceptance of Alcatel's offer was before the purchase of the 400,000 lines (see main file Volume VIII folios 2992 to 3010). Previously, from his first preliminary statement (indagatoria) he maintains that it was a reward subsequent to the award. That strange statement over three days, but written like a document prepared under an agreement with paragraphs in quotes, precise punctuation, and the drafting of a written document and not of a declaration, remains as the basis of the agreement for the prosecutorial discretion criteria as stated by Prosecutor Criss González to the Trial Court. Note, honorable appellate judges, how the facts actually proven better fit the first version of [Nombre026] (payments as a reward from Alcatel to ensure, possibly, the 50% expansion of the bid and new future contracts; clearly this does not mean that there were not previous payments for other contracts) than 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 know the dollar amount of the bid, nor that it was 400,000 lines, nor is it logical to pay for a migration to GSM that had already been approved many months before, that he had responsibility for the bid taking place when this was ordered by the Comptroller General of the Republic in January 2001 when it did not accept direct purchases. Perhaps those circumstances explain why the Prosecutor's Office did not investigate or try to verify the supposed meetings in [...] between [Nombre026] and Alcatel representatives, nor at my house with me." According to proven fact number 93, [Nombre026] did know the amount of the bid before December 5, when the amount for the lines is determined: "So the lady judges accept contradictory versions of [Nombre026] as is convenient to ratify the conviction that the media and politicians had already subconsciously instilled in them. Please also note, honorable appellate judges, how the lady judges, without any grounds, state that he transmitted to me: 'and the actions I had to carry out in return.' In no statement of [Nombre026] to the Prosecutor's Office, nor during the trial, did [Nombre026] state such a thing. Where do the lady judges get that statement from?... " (cf. appeal, folios 172395 to 172400). **E. False determination of facts regarding supposed payments by [Nombre026].** The accreditation of proven facts numbers 95 to 98 and 100 to 114 is challenged, which have no support other than the statement of the collaborating accused [Nombre026]; the judicial report itself No. 297-DEF-540-04/05 of the Judicial Investigation Organization concludes that it is not possible to state anything regarding the supposed cash deliveries that, for different reasons, in diverse and contradictory instances, [Nombre026] claims to have made to [Nombre012], which is impossible to verify with the existing evidence. The lady judges infringe the rules of sound criticism by considering that [Nombre026] collaborated out of repentance and patriotism, or that if he incurred contradictions it was due to his "state of mind," since it is evident that he was interested in the conviction of [Nombre012] to obtain his impunity in exchange. [Nombre026] indicates that he did not make the payments to [Nombre012] of the 60% that, according to him, [Nombre012] requested, because he considered it unjust and disproportionate: "What does 'unjust and disproportionate' mean," asks the appellant, "in the statement of [Nombre026] that the lady judges collect? Unjust because [Nombre026] is a principal perpetrator which I could not be even with his false accusations? Disproportionate in relation to the responsibilities that [Nombre026] knows correspond to him? If so, how could a prosecutorial discretion criteria have been applied in favor of [Nombre026]?" [Nombre026] did not testify as a witness in the debate, he does not have the status of a witness (but rather of a confessed accused, presumably a "collaborator"), nor was he sworn under an obligation to tell the truth. Other evidentiary means that confirm the truth of his statements regarding the crux of the facts according to the crime classification were not validly incorporated into the debate: the existence of the promise of compensation, the act contrary to his duties, the occasion and time of those nonexistent acts, the actions that [Nombre026] says he carried out (cf. appeal, folios 172400 to 172406). **Second Section.- Disagreement with the incorporation and assessment of the evidence.** There are gross errors in the incorporation of the evidence for the majority vote due to the lack of a precise and detailed determination of the facts held as accredited by the court. In the majority vote, there is a lack of substantiation, contradictory substantiation, and disregard of the rules of sound rational criticism with respect to evidentiary means and elements of decisive value. The reasoning for assessing the evidence is totally contrary to the facts that appear in the facts determined by the evidence. The judgment is based on illegitimate evidence that makes it totally invalid. **A. The consultancy contracts between Servicios Notariales QC S.A. and Alcatel.** There is no detailed determination that all the Alcatel - Servicios Notariales QC contracts were for illegal payments related to the four hundred thousand cellular lines. The irreparable harm of holding this fact as certain is that it is related to the four hundred thousand cellular lines and Alcatel payments that the judicial expert witnesses of the O.I.J. themselves establish as motivated by other reasons, thereby accrediting a supposed receipt by [Nombre012] of funds originating from Alcatel. He requests that the conclusion that Alcatel payments for contracts and invoices not related to the four hundred thousand lines are for payments of that GSM cellular negotiation be annulled and that the conviction against him be annulled, declaring his acquittal (cf. appeal, folios 172406 to 172415). **B.

Alleged request by [Nombre012] to [Nombre026] for Alcatel to honor outstanding debts. This topic is developed between pages 1301 and 1307 of the judgment, without offering a single argument that proves [Nombre026]'s statement to the effect that [Nombre012] asked him to help in the collection from Alcatel, which he claims [Nombre012] asked him to do, and that [Nombre012] asked him to take advantage of a trip to Paris to promote that payment. The lady judges engaged in speculation lacking support and procedural interest, but with a high political charge regarding the activities of a distinguished lawyer who has held very important positions in Governments of the Partido Unidad Social Cristiana. It is false that the appellant participated in that collection (cf. appeal, folios 172415 to 172416).

**C. Alleged payments to [Nombre012] and their relationship with funds originating from Alcatel.** There is no detailed determination that the alleged payments from [Nombre026] to [Nombre012] occurred, nor that they originated from Alcatel funds related to the four hundred thousand cellular lines, and thus the rules of logic, psychology, and banking experience are violated. The irreparable harm (gravamen irreparable) of taking these facts as true is that they are indispensable to link him to the crime they seek to attribute to him. He requests that the judgment's conclusions regarding payments from [Nombre026] to him be annulled and that the conviction against him be annulled. The matters concerning the delivery and receipt of the gift are developed by the lady judges between pages 1703 and 1799 of the judgment. The forensic expert stated that "*It was not determined that Mr. [Nombre012] directly received money from Servicios Notariales QC or from Intelmar*" (page 165 of the judgment), meaning it is essential to be able to establish, in each case, an unbroken chain of fund transmission in order to validly conclude that Alcatel funds reached the hands of [Nombre012] due to the instigation he allegedly directed at [Nombre026] to commit a crime. However, the lady judges have the audacity to affirm that the receipt of the monies or certificates that [Nombre026] claims to have given to [Nombre012] has been "totally corroborated" by "documentary evidence of a banking nature." The statement of the accused [Nombre026] was not corroborated by any evidentiary element other than his declaration. "*How can the lady judges say*," asks the appellant, "*that all of [Nombre026]'s statements have been confirmed, when there are fundamental contradictions regarding: a) the timing of the agreement with Alcatel, whether before or after the tender (licitación); b) regarding the sums delivered: $370,000 in cash, first, then he changes it to BICSA certificates of deposit for $130,000, all at the presidency in January 2001, and many months later he invents two cash deliveries, one for 100,000 dollars in October 2002 and another for 130,000 dollars in September 2003, both at my in-laws' house; c) in that he affirmed in the statement of October 8, 2004, that he had sent an undetermined sum, by an undetermined means, and at an undetermined time to the company Inversiones Dennise, only to later accept that he never did so; d) If he said that I had dictated Inversiones Dennise's ABA address to him, and then with rich imagination in detail says he copied it from my computer screen; e) If he dares to say he kept cash of unknown origin in hiding places in his house for thousands of dollars, he who in all his transactions tries to put money to generate interest immediately; f) If there is no proof whatsoever of the central points of his statement such as the meeting in [...], his call to arrange a meeting with me, the false meeting at my house; g) If he says he opened the Saint George Bank account to send money to his daughter who was studying in the United States, and she had already finished her studies; h) If he contradicts himself saying that at the meeting in [...] no amount was discussed, only a percentage, because the volume involved was unknown, and then says that the next day at the supposed meeting at my house he indicated the amount was between one and a half and two million dollars*." The observations made by his defense experts, Messrs. [Nombre030] and [Nombre031], regarding inconsistencies in dates, transaction times, bank paperwork, client signatures, the constitution and liquidation (constitución y liquidación) of investment certificates, cash transactions, even though they are recorded as arguments of the technical Defense in the judgment, are not analyzed, and they continue with the statements from the reports of the Economic and Financial Crimes Section of the O.I.J., which depend in turn on the unverified statements of bank officials. Furthermore, the forensic experts themselves acknowledge the serious limitations of their reports in their own statements, noting that they did not collate or verify the information in cases of inconsistencies in dates, transaction times, bank paperwork, client signatures, constitution and liquidation of investment certificates, as they trusted completely in what the banks told them; these limitations are not taken into account by the lady judges, which in itself constitutes a flaw in the reasoning (fundamentación) of the judgment, rendering it incomplete.

Throughout the debate, a series of suspicious indicators was established regarding the actions of Banco Cuscatlán, which, however, did not lead the Prosecutor's Office (Fiscalía) to investigate whether money laundering laws (leyes de legitimación de capitales) were being violated; nor did the forensic experts bother to make inquiries in this regard, or at least communicate with SUGEF. *Should it not be striking that movements of more than fifteen million dollars entered the accounts of Servicios Notariales QC without those financial entities seeking further justification? Is it not strange that later those 'explanations' that served them to try to determine the Alcatel origin of various transactions by means that go against banking and financial experience regarding computer systems, 'cash validations,' cash handling in exchanges of certificates of deposit, transfers between local and foreign banks, exchanges between different instruments of various members of the financial group, acceptance of signatures from those without power of attorney, etc., etc.?* The forensic experts used documents in English, although they did not have command of that language, and many of their conclusions—like those of the lady judges—are based on the statements of the bankers, without a valid verification of their statements (cf. appeal, folios 172416 to 172431).

**D. Assessment of the unsworn statement of the confessed accused [Nombre026].** The majority opinion (voto de mayoría) accepts that [Nombre026]'s statement is not evidence; however, it accepts his word without any proof or indicator (indicio) supporting it on substantial points necessary to somehow link [Nombre012] to the unlawful act. The reasoning is illegitimate, violates the rules of logic, experience, and psychology, and is based on illegal evidence. It causes irreparable harm by illegitimately taking as true the statement of a confessed accused, which is not evidence and whose veracity is not corroborated by any other proof.

The Constitutional Chamber (Sala Constitucional) itself stated: "*It is important to mention as a reference that the European Court of Human Rights* [...] *admitted the legitimacy of the crown witness or repentant witness* [...]*, that its admissibility should only be as a source of circumstantial evidence (prueba indiciaria), that is, the data or information it provides require the backing of other means of proof. It becomes a means of investigation subject to confirmation, directly or indirectly, of the data and circumstances it has provided regarding the investigated facts*" (Constitutional Chamber, No. 12090 of 2:40 p.m. on July 31, 2009). "*It is guilt that must be proven, not innocence*," the complainant reiterates.

What [Nombre026] affirms is that his reflection was that he might need help to fulfill his plan, not that he needed convincing; all the witnesses, including [Nombre026] himself, were unanimous in that [Nombre012] never asked anything of any director or official of the ICE regarding the tender for the four hundred thousand GSM cellular lines, nor regarding any purchase or contract. "*And to crown the contradiction*," says the appellant, "*he seeks me out in case he needs help, does not ask for it, and does not even inform me of the conditions they had supposedly asked him to meet*." For the lady judges, the "incontrovertible" (fehaciente) proof that they met on December 2 and 3, 2000, in [...] and at [Nombre012]'s house is that the alleged participants were in the country (according to the entry and exit records of the country for [Nombre026], [Nombre015], [Nombre035], and [Nombre012]), a conclusion that does not derive from the premises: "*With that reasoning*," says the complainant, "*all of us who are in Costa Rica today are proven to have met, if [Nombre026] says so*." The lady judges exhibit "blind credibility" towards whatever [Nombre026] says, whether it is contradictory or not, whether there are at least indicators confirming it or not, whether it accords with experience or not, whether it goes against the reality of time or not, whether or not it determines, according to his word, the location of people in the world: "...*it is even more unjustified*," he adds, "*when the lady judges were eyewitnesses to [Nombre026]'s statements regarding the unjustified income when he was Minister of Housing, and the other income related to other alleged crimes confessed by [Nombre026] and corroborated by the OIJ*." The bank accounts in colones and other possible accounts of [Nombre026] in his name or his wife's name were not investigated because the Public Prosecutor's Office (Ministerio Público) did not request it; nor were the other possible crimes of [Nombre026] investigated, even though the Public Prosecutor's Office was informed of them, as the prosecutors did not request their investigation (see declaration of [Nombre036], pages 190 and 193 of the Judgment). The lady judges were aware of all this, but this did not affect their total credibility, immune to any contradiction or error in [Nombre026]'s statement. "*One could argue to me that these were unadjudicated facts and therefore could not be used by the court, as it would violate the principle of innocence. But then why is it argued against me that I did not prove a different nature for the alleged payments from [Nombre026]? Does the principle of innocence not apply when it is against me, but only for the confessed accused [Nombre026]?*" Judge Camacho Morales, on the other hand, demonstrates that in no case is there verification of a promise by the alleged corrupters, and the dates accepted by the lady judges in their majority opinion are not compatible with a coherent explanation of the tasks entrusted to [Nombre026].

Regarding the illegal opportunity criterion (criterio de oportunidad) granted to [Nombre026] through deceit of the judges, the lady judges, in a divided opinion (voto divido) on the legality and appropriateness of the judicial approval of that criterion, deny having jurisdiction (competencia) to hear it during the oral debate. In this judgment, it is argued that [Nombre026] wanted to cooperate from the beginning in his first statement in September 2004, without considering that in that statement, the facts he describes are totally contrary to those he accepts in May 2005, when he reaches an agreement for an abbreviated procedure (procedimiento abreviado) with the Public Prosecutor's Office, which are practically identical to those included for the agreement of the opportunity criterion. The majority opinion points out that while [Nombre026] goes unpunished for his actions, that is not the result of their decision but rather of the legislative approval of the mechanism and the approval by other judges. That is not so, because the Trial Court (Tribunal de Juicio) had the responsibility to rule on the approval of the opportunity criterion and they refused to do so. The majority naively believes that [Nombre026] cooperated motivated by supposed patriotic reasons, was placed under house arrest, and went unpunished because the Public Prosecutor's Office, instead of *partially* refraining from criminal prosecution by limiting itself to not charging him with the four hundred thousand lines matter, *totally* refrained from prosecution, including other confessed crimes.

The majority opinion says nothing about the Public Prosecutor's Office's refusal to investigate other crimes confessed by [Nombre026] and verified in the OIJ accounting reports. Nor does the majority opinion refer to the prior circumstances regarding the other crimes confessed by [Nombre026], nor does it do so regarding the multi-million dollar sums that, with the arrangement of the opportunity criterion, remained in the possession of [Nombre026]. There has been a clear tendency to favor [Nombre026] in everything.

The majority relies on [Nombre026]'s statement to classify the conduct attributed to [Nombre012] as "*instigation*" (instigación), but neither [Nombre026]'s alleged words in [...], nor his alleged "thoughts" or "reflections" at his home, nor his presumed words at the fabricated meeting at [Nombre012]'s house indicate that [Nombre026] needed to be induced to do something he had already accepted in principle (that is, he had accepted or embraced it in essence) and that he had repeatedly done in other cases that were not investigated, nor that [Nombre012] produced in him the will and resolution to do it: "*There is no way to classify the acts of which [Nombre026] accuses me and the facts described in the accusation as instigation to aggravated corruption by reason of an improper bribery (cohecho impropio), which makes my conduct atypical and determines a violation of the substantive law of the Penal Code, which demands a dismissal (sobreseimiento) or acquittal in my favor...*" (cf. appeal, folios 172432 to 172451).

**E. Nature of the delivery of funds from [Nombre026] to the President.** The majority opinion rejects [Nombre012]'s version of the nature of the funds that [Nombre026] gave to [Nombre012], and which [Nombre012] always accepted that [Nombre026] delivered to him, and which were paid in 2004, consigning their payment to the Public Prosecutor's Office, with no other argument than [Nombre026]'s word. There is an erroneous assessment of his testimony, and it causes irreparable harm that the statement of that confessed accused was taken as true, which is not evidence and finds no support in any other proof. "*In relation to the nature of the funds delivered by [Nombre026] to me, I have always admitted that—and they constitute the entirety of what he claims to have given me in his initial statement (September 30, 2004)—together with the cash that he initially falsely claims to have given me in late 2000 or early 2001 and later contradicts himself and says he did not give me, the lady judges affirm that it is not a loan (crédito) whose payment my lawyers consigned in 2004. And why do they assert it is not a loan? Because [Nombre026] affirms that it is not...*" (cf. appeal, folios 172451 to 172452).

**F. A judgment based on illegitimate evidence. Bank evidence obtained without a judicial order in Panama (Exhibit 588).** The majority opinion exhaustively uses and relies on Exhibit 588 (prueba 588), which is illegal and unconstitutional and is the foundation for the alleged existence of the crime. Exhibit 588 is a certified copy of the Judicial Assistance from the Republic of Panama sent via notes PGR-030-2004, dated September 10, 2004, and No. 316-DN-TALM-04 of September 6, 2004. Said evidence concerns a certified copy of a letter rogatory to Panama (dated September 10, 2004) in which the Prosecutor's Office requested the Attorney General's Office (Procuraduría General de la República) to apply the "*Central American Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama*" for the collection of evidence in the investigation corresponding to the criminal case called "Caja-Fischel" (criminal case file 04-005356-0042-PE). In said document, the Prosecutor's Office requested the seizure (secuestro) and inspection (registro) of information from all bank accounts and all financial entities in the Panamanian banking system corresponding to the company Marchwood Holding. Similarly, the Prosecutor's Office requested the remittance of all financial movements and their respective backing documentation (credits and debits), including the checks that have been issued from that account, from its opening to the present date, whether cashier's or regular checks, along with the documents supporting said issuances, as well as the account opening file and all documents that have been presented to the bank by whoever is/are authorized on the same.

In all that flow of information between the Public Prosecutor's Office and administrative authorities, for the obtaining of Exhibit 588, the absence of the corresponding judicial order issued by the guarantee judge (juez de garantías) of the present process to request the required information is notable; therefore, such a request contains defects of legality and constitutionality, as said request was formulated and executed without the order of a judge. The Constitutional Chamber interprets that documents containing financial information are protected by "bank secrecy" (secreto bancario), that such secrecy falls within the assumptions protected by Article 24 of the Political Constitution (Constitución Política), so that to carry out any judicial proceeding, the authorities must respect the order and form prescribed by the Political Constitution (cf. Constitutional Chamber, No. 578 of 10:45 a.m. on February 28, 1992). The constitutional guarantee is non-waivable and applicable to all inhabitants, including foreigners; it is not admissible that violations of fundamental rights (privacy and bank secrecy) abroad be asserted as legitimate in Costa Rica.

Law No. 7425, the Law on the registration, seizure and examination of private documents and intervention of communications, was also disregarded, as from its Articles 1, 2, and 3, it is inferred that a) only courts of justice can order the seizure and registration of private documents when absolutely indispensable for the clarification of criminal matters submitted to their knowledge; b) only the criminal judge of the preparatory procedure or guarantee judge, during the investigation, can order the seizure and registration of private documents, either ex officio or at the request of the Public Prosecutor's Office, provided it may serve as evidence of the commission of a criminal conduct; and c) *the order for seizure, registration, or examination must be carried out, under penalty of nullity, by means of a reasoned order (auto fundado) in which, if possible, the documents on which the measure of registration, seizure, or examination will be executed are individualized, along with the name of the person who possesses them and the place where they are located, regardless of whether this information is inside or outside the country*. In this case, there is an absolute absence of the referenced jurisdictional order that authorizes the seizure of private financial documents of Marchwood Holdings and that refers to all the information requested from the Panamanian authorities and which was accepted as Exhibit 588.

But furthermore, the information set forth in the so-called Exhibit 588, as it is a certified copy, originates from another criminal case called "Caja-Fischel," and if one analyzes Exhibit 618 (prueba 618), which is Expert Report 428-DEF-443-05.05 with its 19 annexes, we can easily understand that in said report references are made to money transfers from a company called Servicios Notariales, unrelated to the "Caja-Fischel" case, to Marchwood Holding, which was under investigation in that case. In this way, the Public Prosecutor's Office learns of the existence of the company Servicios Notariales QC; that is to say, the spurious Exhibit 588 comes from a source that is neither independent nor prior, i.e., it originates from another case called "Caja-Fischel." This illegal information arrives from Panama at the beginning of September 2004, and specifically at the Prosecutor's Office by September 10, 2004, as recorded on folio 895 of the judgment. At that time, information was only requested on Marchwood Holdings, not on Servicios Notariales QC; rather, it is from September 10, 2004, that the Public Prosecutor's Office learns of the existence of a company called Servicios Notariales QC, and it is there that it decides to start an independent line of investigation, which ultimately became the present criminal case. Therefore, the origin of the present criminal case is not independent of the investigation of the "Caja-Fischel" case. The present criminal case has its genesis in Exhibit 588, documentation that cannot be considered evidence because it was processed in violation of Article 24 of the Political Constitution and in violation of the theory of the independent source of evidence, but the lady judges of the majority opinion fruitlessly try to justify the independence of Exhibit 588 by referring (cf. pages 933 and following of the judgment) to the existence of other means of evidence demonstrating the legality of the origin of the present process, such as Exhibit 592.9 (monitoring of print media from December 9 to 31, 2004), Exhibit 682 (publications appearing in nationally circulated newspapers, among them Diario Extra from 2004), but said material only refers to a house in [...] and to [Nombre021], the other to Taiwan, but the truth of the matter is that before that date (September 10, 2004), the Public Prosecutor's Office did not know of the existence of the company Servicios Notariales QC.

If a hypothetical suppression of Exhibit 588 is performed, there are no other independent and prior evidentiary elements that give the Public Prosecutor's Office knowledge of the existence of the company Servicios Notariales QC, so as to originate the present criminal process, in accordance with the jurisprudence of the Constitutional Chamber (specifically citing judgment No. 4636 of 4:12 p.m. on August 12, 1997). Nevertheless, the lady judges of the majority seek to "sanctify" the illegality of Exhibit 588 with a note sent long after the illegitimate obtaining of said evidentiary documentation: "*Knowing the illicit nature of Exhibit 588 and the consequences derived from its illegitimate obtaining, the Public Prosecutor's Office, years after having obtained that information spuriously, Mr. [Nombre032], by virtue of his negotiation with the Public Prosecutor's Office so that this body would request a lesser penalty for him during the debate of the Caja-Fischel case, sends a note where he purports to authorize the obtaining, use, and utilization of all the bank information obtained in the Republic of Panama corresponding to the company Marchwood Holding, retroactively to the moment before September 10, 2004, the date on which the Public Prosecutor's Office becomes aware of the existence of Servicios Notariales QC.*" In the majority opinion, starting from page 896, the lady judges validate and base the conviction on said note signed by [Nombre032], which was incorporated during the debate of the present case as Exhibit 759 (note signed by [Nombre032] dated May 17, 2010). That note is nothing more than a tacit acceptance of the illegal action of the Prosecutor's Office, for otherwise they would never have run, years later, to try to validate an absolute defect that was consummated at the moment of the illegal obtaining. Although a distinction should be made between obtaining and incorporating evidence, the majority's thesis that illicitly *obtained* evidence can be licitly *incorporated* is preposterous or absurd, since from the judgment of Magistrate Piza No. 1739-92, it has been understood that evidence only has value if it has been obtained by a lawful means. Furthermore, the powers (type of power of attorney) of Mr. [Nombre032] in relation to Marchwood Holding were never proven: "*That is, years later, a certain gentleman comes along, illegally consenting to something, where we do not know if he has the legal authority to do so...*" because there is not in the entire case file a single certification of legal capacity (personería jurídica) legally issued stating that as of the date of issuance of the note, May 17, 2010, Mr. [Nombre032] had the powers to consent retroactively and illegally to violations of the bank secrecy of the company Marchwood Holding; rather, the lady judges believed only the word of Mr. [Nombre032]; they did not even ask him for proof of his powers as legal representative of Marchwood Holding.

The dissenting opinion (voto de minoría) of Judge Camacho Morales, by contrast, sets out in a serious and well-founded manner why the majority failed to observe Article 181 of the Criminal Procedure Code (Código Procesal Penal) by relying on illegitimate evidence, thereby also violating Articles 363, 142, and 184 of that same legal text.

Judge Camacho Morales concludes that exhibit 588 is illegitimate for the same reasons the court—unanimously—previously considered another piece of evidence also brought from Panama in this trial illegitimate, by resolution at 8:00 a.m. on May 14, 2010 (cf. volume XXVII, folios 13352 to 13408), because the constitutional and legal requirement of a judicial order was bypassed. The Public Prosecutor's Office argued that exhibit 588 is indeed valid because the consent of the legal representative of the company whose banking relationships in Panama were brought into the proceedings was given, and that was accepted by the lady judges. The Third Chamber of the Court, through resolution No. 499-2011 at 11:45 a.m. on May 11, 2011—in the "Caja-Fischel" case—ruled on that same evidence known as "588," declaring it ineffective, as well as the other evidentiary elements directly derived from it. In that "Caja Fischel" trial, to which judgment No. 499-2011 refers, an attempt was also made to validate the illegitimate evidence originating from Panama, the very same that in the present case corresponds to number 588, using the same ruse of resorting to an approval from [Nombre032], a validation that the majority of the Third Chamber also does not admit in vote No. 499-2011, but rather considers absolutely illegal. **G. Banking evidence delivered without a judicial order.** The majority vote is based on banking documentation illegally introduced into the proceedings, because it relates to the lack of *express* judicial authorization for financial entities to lift bank secrecy, even when prosecutors or judicial police officers were empowered to seize the documentation, according to the criterion expressed by the Constitutional Chamber in its judgment No. 578-92 at 10:45 a.m. on February 28, 1992, and by the Criminal Affairs Commission of the Supreme Court of Justice. The complainant details nineteen resolutions of the Criminal Tax Court of the Second Judicial Circuit of San José and maintains that the banking documents seized based on them must be declared ineffective, because none authorized the banking entity to lift the secrecy of the private documentation (cf. appeal, folios 172473 to 172486). **H. Banking evidence delivered outside the judicially established deadline.** The majority vote is based on evidence illegitimately obtained, seized, and introduced into the proceedings, gathered outside the deadline established in the judicial authorization, in the cases of Grupo Financiero Interfín and Acobo Sociedad de Fondos de Inversión, which has been claimed since the preliminary hearing, at the start of the trial, and in the closing arguments. [Nombre012] reproaches that his right to privacy was harmed by violating bank secrecy with respect to his accounts, at a time when the actions of the judicial officials were not covered by any judicial order. The OIJ officers who seized the documentation, by delegation made by the Public Prosecutor's Office, carried out the seizure after the deadline ordered by the guarantees judge for the proceeding to be conducted had expired, which constitutes a genuine violation of due process (cf. appeal, folios 172487 to 172490). **a. Grupo Financiero Interfin.** In this case, the criminal judge expressly ordered that the proceeding be conducted between October 8 and 15, 2004; however, it was not carried out until October 27, making the action illegitimate and the evidence thus obtained ineffective (cf. folios 172491 to 172492). **b. Acobo Sociedad de Fondos de Inversión.** The Criminal Court expressly ordered that the proceeding be conducted between October 5 and 15, 2004; however, it was not carried out until October 19, making the action illegitimate and the evidence thus obtained ineffective (cf. folios 172492 to 172496). ***Third Section.- Disagreement with the legal reasoning.*** **A. Opportunity criterion.** The majority vote is based on illegal evidence, specifically on the statement, as a supposed confessed cooperating defendant, of [Nombre026], protected by an opportunity criterion (criterio de oportunidad) illegally requested and approved to procure his impunity, and on de facto actions by the Public Prosecutor's Office that, without judicial approval, grant him illegitimate impunity for other crimes confessed by him. He requests that the statement given by [Nombre026] at trial be annulled and, since there is no other evidence against him for any crime, he requests that the conviction be annulled and the defect be corrected by resolving the matter according to the applicable law, acquitting him of the crime charged. In the video, it can be seen that it is [Nombre026]'s defense attorney who dictates the answers he must give at trial. The lady judges of the majority vote, in a vote prior to the judgment, had already declared themselves incompetent to resolve the protest for defective procedural activity that the defense alleged against the defects in the processing and application of the opportunity criterion [referring to the vote at 1:30 p.m. on September 2, 2010]. In contrast, Judge Camacho Morales states that the legality in the application of the principle of opportunity is indeed controllable and that in this matter it was granted through a resolution that completely lacks reasoning, and therefore it cannot have any legal effect. [Nombre026] confessed to many crimes, corroborated by the DEF of the OIJ, which were arbitrarily left uninvestigated, meaning there is no proportionality in the application of the opportunity criterion. When the Public Prosecutor's Office requested that the criminal judge approve the opportunity criterion, it concealed decisive information for establishing lesser culpability and proportionality in its application, because other conduct that could be criminal and was confessed by [Nombre026] was not mentioned in the request. Judge Camacho Morales points out the impropriety of the monetary arrangements made by the Public Ethics Prosecutor's Office, since [Nombre026] was legitimized to maintain possession of millions of dollars in sums, and their estimates fell short because they did not take into account other income that [Nombre026] confessed to, but which the Public Prosecutor's Office refused to investigate, meaning that the State itself has legitimized him to keep more than one and a half million dollars (cf. appeal, folios 172497 to 172515). **B. Statute of Limitations.** The majority vote denies that the statute of limitations (prescripción) operated for a penalty of up to three years, as they intend to apply to him the provision of a law that was approved after his initial investigatory statement, which had already granted him a reduction of the statute of limitations period by half. In the resolution at 8:00 a.m. on May 14, 2010, the court decided, unanimously, to reserve for resolution in the judgment the ruling on the applicability of Article 62 of Law No. 8422 ["Law against Corruption and Illicit Enrichment in Public Service," which took effect upon its publication in La Gaceta No. 212 on October 29, 2004]. For [Nombre012], the first formal accusation occurred with the statement of October 15, [2004]. Procedural acts are governed by the law in force at the time of their performance; it is not possible to apply a new law retroactively to a procedural act carried out during the validity of the prior law [in that sense, he cites judgments of the Constitutional Chamber No. 4397-99 at 4:06 p.m. on June 8, 1999, and of the Criminal Cassation Court, No. 132 at 10:30 a.m. on February 23, 2006]. He requests that the criminal action be declared time-barred and a dismissal (sobreseimiento) be ordered in his favor (cf. appeal, folios 172515 to 172519). **C. Absence of a Natural Judge.** His constitutional right to be judged by a natural judge (juez natural) was disregarded. This is so because to constitute the court, it was ordered to call Judge Rosaura García from the Judicial School, who assumed the presidency of the court, after which her return to the Judicial School was agreed upon. This demonstrates that she was brought in ex professo solely to resolve this case, and despite having returned to the Judicial School, she subsequently issued various resolutions, instead of her alternate doing so, as if the case were "hers." In contrast, Judge Camacho Morales was not brought in to issue those post-judgment resolutions (to resolve requests for addition and clarification to the judgment), but rather they were resolved with his alternate or substitute, which denotes the special treatment given to Judge García so that she would judge him (cf. appeal, folios 172520 to 172523). **D. Impediment to the exercise of his material defense.** During the trial, he was prevented from exercising his constitutional right of material defense (defensa material), which constitutes a violation of due process that renders the judgment null and void. This is so because the court prevented him from personally cross-examining the witness or expert [Nombre033], offered by the Office of the Attorney General of the Republic. The appellant indicates that he holds a doctorate in Economics, is a Professor at the University of Costa Rica in the Faculty of Economic Sciences, that he has also been a professor at the University of California, Berkeley, at the Universidad Autónoma de Centro América, at George Washington University in the District of Columbia, and at Universidad Carlos III in Madrid, and that he is a practicing attorney, which is why he and his defenders preferred that, being an expert on the subject, he conduct the cross-examination of the expert. However, the trial court did not allow it and his defense reserved the right to cassation (cf. appeal, folios 172524 to 172526). **E. Violations of due process, disregard of the Political Constitution and of the International Human Rights Treaties signed by Costa Rica.** The judgment is based on torture and on acts that have violated due process and his opportunity for defense. The constitutional rights of defense, of a natural judge, of not being punished without a final judgment, of not being punished without proof of guilt, and of not being subjected to cruel or degrading treatment have been violated. The violation of due process and of his rights, the media and political trial, and the continued psychological torture not only subconsciously conditioned the Court to the sole path of convicting him, but also give rise to a process "not conforming to the Law," which is his constitutional guarantee and that of every Costa Rican citizen. There is irreparable harm from the judgment that arises from the subconscious of the lady judges and from a process that was not governed by due process, for which reason he requests that the judgment be annulled and his acquittal be declared. **a. Fair trial, judge and its circumstances.** In this section, he says that there were not only errors during the trial and in the majority vote of the judgment, but also absolute defects that occurred throughout this entire process, before the trial, which have not been remedied or validated, being absolute. The Prosecutor's Office and a sector of the press decided to persuade erga omnes of his guilt, to condition and induce the activity of the judges toward a conviction. His detention occurred under conditions of unnecessary mockery and affront, and he was denied a fair trial. The lady judges, prior to reading the operative part of the judgment, in the session of April 27, 2011, said that they do not share the "...traditional notion of the judge who serves as the mouth of the law." That judges be the mouth of the law, according to Montesquieu, is the only way for trials to be conducted in compliance with the principle of legality of Articles 39 and 41 of the Political Constitution, according to which justice must be "*prompt, complete, and in strict conformity with the laws*." Thus, the judge is often the mouth of certain media outlets, a reflection of public opinion, demagoguery (cf. folios 172527 to 172532). **b. Media trial.** This case is a paradigm of the media or parallel trial that compromises the independence and impartiality of the judge, projecting a preconceived "solution" to the conflict (cf. folios 172532 to 172540). **c. Torture.** His human rights to dignity, not to be tortured, to protect his honor and his image, to his state of innocence, not to be exhibited as guilty, and to due process have been violated. The conviction arose under totally irreparable conditions due to the violations committed against his human rights, for which reason he requests that the judgment be annulled and he be declared acquitted. He was subjected to cruel and degrading treatments from his arrival at the Juan Santamaría International Airport, according to the facts described in section F and the evidence offered to corroborate it (cf. folios 172540 to 172545). **d. Constitutional violations, of international human rights instruments and of criminal norms.** It has been impossible to receive a fair trial since he voluntarily returned to the country on October 15, 2004, because of the senseless duration that turns the investigation into punishment, the arbitrary publicity that determines the deliberate media condemnation, the use of false evidence and the dungeon, the illegal detention, the torture and cruel treatment of exhibition and mockery, the imprisonment in the isolation of the dungeon for consecutive months, the lack of objectivity of the Public Prosecutor's Office and its deal with a principal perpetrator; the guarantees of the Political Constitution, of the international human rights instruments, and of the laws of the Republic have been breached. It falls to the Sentencing Appeals Court to repair those violations by declaring them, annulling the appealed judgment, and determining his acquittal. Mockery, disdain, disrepute fell upon him; he lost standing and liberty, and lived the bitterness of his family's suffering (cf. folios 172545 to 172566). **F. Events prior to the trial that have broken due process due to non-application or erroneous application of constitutional and legal norms that guarantee the state of innocence and the right to a defense.** In this section, he lists a series of events, prior to the trial (referring to the preliminary investigation stage), through which the constitutional, international, and national norms he pointed out in the previous point were violated (cf. folios 172566 to 172666). It is a breakdown of 129 "events" (as the appellant calls them, although some of these paragraphs, besides events, contain analysis and reflections on the circumstances that preceded the trial stage and the issuance of the judgment), as well as an interpretation of the actions or omissions, possible motives or eagerness of some of the protagonists and characters of that historical moment, which he describes, enumerates, and records under the following titles: a) Unjustified delay of the investigation (events No. 1 to 14, cf. folios 172568 to 172573); b) Violations of the secrecy of the preliminary procedure and the communicability between the Public Prosecutor's Office and certain media outlets (events No. 15 to 17, cf. folios 172573 to 172578); c) Illegal detention (events No. 18 to 25, cf. folios 172579 to 172581); d) Denial of the right to defense (events No. 26 to 39, cf. folios 172581 to 172603); e) Degrading public exhibition, cruel treatment, psychological torture (events No. 40 to 53, cf. folios 172603 to 172609); f) Use of false evidence to obtain a pretrial detention order (events No. 54 to 69, cf. folios 172610 to 172618); g) The confessed defendant [Nombre026]: from principal perpetrator to cooperating defendant. Improper actions by the Public Prosecutor's Office to try to grant him impunity (events No. 70 to 79, folios 172618 to 172642); h) Affront to the sovereignty of the judge and media trial (events No. 80 to 99, cf. folios 172642 to 172653); i) Politicization of the case (events No. 100 to 129, cf. folios 172653 to 172666). Since the judgment was based on a process conducted in an unconstitutional manner, with disregard for procedural norms that protect the state of innocence, the secrecy of the preliminary investigation (sumario), the natural judge, the right to defense, violation of personal liberty, disrespect for human rights, and torture, it is vitiated by absolute defects and must be annulled, so that, resolving the matter according to the applicable law, the acquittal of the appellant [Nombre012] is declared. ***Fourth Section.- Lack of reasonableness, balance, and proportionality in the determination of the penalty.*** The majority vote does not provide reasoning for the determination of the penalty at its maximum limit against [Nombre012]; it contradicts the determination made unanimously in the allocation of responsibilities in the civil actions, which infringes the rules of sound criticism (sana crítica) and causes irreparable harm, because lacking reasoning, the imposed penalty becomes arbitrary. In the event that—despite the serious objections that have been raised—the conviction against him is confirmed, he requests that the penalty be adjusted to its minimum limit and the benefit of conditional execution of the sentence (ejecución condicional) be granted, since the penalty imposed by the majority is evidently disproportionate, clearly excessive and unjust. The lady judges only reproach him for his status as former president, but they do not attribute control of the act (dominio del hecho) to him; they only go so far as to classify him as an instigator, given that the Prosecutor's Office itself stated in its closing arguments that [Nombre026] was the perpetrator with full dominion of the act. Positive factors for him were not taken into account, such as his age, his behavior before and after the alleged crime and throughout the entire process, all the humiliation suffered, his submission to the Administration of Justice, which is not the same as refusing to exercise his right of defense: "*The lady judges, in short, do not explain why I deserve to have the maximum limit of the penalty imposed on me and not the minimum, nor why they deny the benefit of conditional execution when all the objective and subjective conditions for its application are met: I am a first-time subject, I have a family, I work as a teacher at the University of Costa Rica despite being retired*" (cf. folios 172666 to 172670). ***Fifth Section.- Petition.*** Dr. [Nombre012] orders the claims of his appeal as follows:

"1) That ALL and each one of the petitions raised in this judgment appeal be DECLARED WITH MERIT" "2) That the annulment of the APPEALED judgment that was issued against me be declared and, based on the evaluation of the evidence received at trial and that requested for this appeal, I be acquitted of all penalty and responsibility by virtue of the fact that, as determined in Sections Three D and E, due to the violations of due process that involve violations of substantive constitutional law, of the international human rights treaties applicable in Costa Rica, and of criminal law, the lady judges were subconsciously determined to incur in all the violations of substantive and procedural laws during the process that were pointed out in those sections. In this way, the violations of the substantive laws expressly indicated in the First, Second, Third, and Fourth Sections can be remedied by the Court hearing this judgment appeal, declaring my acquittal, given the nonexistence of any evidence whatsoever that accredits the acts charged against me." "3) That, subsidiarily to the second petition, I be acquitted or dismissed for the reasons adduced in Section Two F as proposed by Judge Jorge Camacho and by reason of the illegality of the evidence on which the accusation and the judgment of the lady judges in their majority vote are based. That thus the illegality of exhibit 588 be declared, with which 'it is concluded that it is not possible to have any fact of the accusation proven, because all the evidence gathered in the process is illicit evidence, since the entirety of the investigation derives from one, or rather, from several constitutional violations in the obtaining of the evidence that guided the investigation from its genesis, and as there is no possibility of excluding the application of the fruit of the poisonous tree doctrine, such as the independent source of the evidence or the inevitable discovery of the same, nor any other exception that excludes the application of the exclusionary rule for illicit evidence, according to which, evidence obtained directly from a constitutional violation must be excluded from the process as well as all that which derives indirectly from the illicit evidence, which in this process is the entirety.'" (vote of Judge Camacho, page 1943 of the judgment, second part)" "4) That, subsidiarily to the third petition, I be acquitted or the proceedings dismissed for the reasons put forward in Section Three A, given that the only evidence against me originates from an illegitimate opportunity criterion. That the finding of Judge Jorge Camacho regarding the opportunity criterion be upheld, which insofar as it concerns me concludes: 'Thus, for the reasons set forth regarding the opportunity criterion, the co-defendant [Name012] must also be absolved of all punishment and responsibility for his participation as an instigator of the crime of aggravated corruption in the form of improper bribery in relation to [Name026].' (Vote of Judge Jorge Camacho, pages 1,996, 1997 of the judgment, second part)." "5) That, subsidiarily to petition four, the judgment against me be annulled and I be acquitted on the grounds that even if the statement of [Name026] were accepted as legal, which we reiterate IS NOT EVIDENCE and the opportunity criterion is illegitimate, the sole support for the majority vote against me would be that statement by [Name026], and there is a total absence of any evidence to support his statement, as has been explained and based on the legal violations claimed." "6) That, subsidiarily to petition five, the conviction handed down against me in the appealed judgment be annulled and my innocence be declared, since [Name026] acknowledges that regarding the alleged proposal by ALCATEL, he 'ACCEPTS IT IN PRINCIPLE,' meaning that at that very location, the [...] Restaurant, the crime would have already been CONSUMMATED, before he supposedly met with me at my house, which I repeat did not happen. That, in accordance with this, my acquittal be declared AS AN ALLEGED INSTIGATOR, given that ONE CANNOT INSTIGATE someone who is already DETERMINED." "7) That, subsidiarily, if declaring my acquittal is not considered appropriate, the trial be totally annulled and its repetition be ordered, excluding all illegal evidence, the facts erroneously held as proven, and the mistaken legal reasoning." "8) That the dissenting vote of Judge Camacho be upheld and the exceptions of statute of limitations (prescripción) in my favor be accepted, and in the event of any reclassification of the crime, that this statute of limitations be applied to me." "9) That, subsidiarily and if none of Judge Camacho's conclusions about evidence 588 and the opportunity criterion are accepted, it be determined that the statement of the confessing defendant [Name026] does not establish any proven fact signifying my participation as an instigator or in any other way in [Name026]'s crime of Aggravated Corruption in the form of Improper Bribery. And that the statute of limitations be applied to me." "10) That, subsidiarily to petition number nine, the penalty imposed against me be adjusted, having been illegally set at the maximum end of the punitive norm, when it has been evident that not only is the alleged conduct attributed to me much less reprehensible than that of the perpetrator ([Name026]), who has been granted absolute impunity, but the attribution of the criminal figure of instigation is atypical when it is evident that [Name026], from the very moment of the alleged offer, states that he 'accepted' it and that only later, thinking about it, at his home, about the implications of the offer he had accepted, does he decide to consult the undersigned, in case it became complicated, something which never happened, such that if [Name026] is exempt from punishment, I did not determine him and even less did I help him, the imposed penalty is disproportionate, I reiterate at its maximum end. That in the event, inconceivable to me, that I be convicted, it be done at the minimum end of the penalty and I be granted the benefit of its conditional execution." Finally, always in relation to Dr. [Name012], it is necessary to add that on folios 173372 and 173373 of volume XL, there is a letter from him addressed to the President of the Supreme Court of Justice, Dr. Luis Paulino Mora Mora, in which the appellant requests that he be guaranteed trial by natural judge, through a public draw.

**II.- THE APPEAL OF DR. [Name012] IS RESOLVED.-** On October 15, 2004, while serving as Secretary General of the Organization of American States and enjoying the prerogatives inherent to that high office, Dr. [Name012], of his own free will, returned to our country to submit himself to the "natural judge," to face the facts of this criminal case for which he was being investigated, to collaborate with the investigation of the real truth and thereby seek to make it clear that he is innocent, as he himself explained to this chamber during the oral hearing held between November 5 and 7, 2012 (cf. audiovisual record on DVD, files c000012110515000.vgz and c0000121105160000.vgz, from 15:47:00 to 16:47:29). During this process, Don [Name012] rejected all charges brought against him, maintaining that the facts imputed to him by the Public Prosecutor's Office are not true. In exercising his right to a material defense -which must be recognized and guaranteed equally to every human being-, Don [Name012] explained that the money he received from [Name026] was related to a simple loan that [Name026] made to him and which he has already repaid through judicial deposits. After having fully examined the conviction judgment handed down against him, it is clear to the judges subscribing to this vote that the Public Prosecutor's Office was unable to demonstrate that Dr. [Name012] had carried out the conduct attributed to him in the accusation, nor that the defense he presented to justify his conduct was false. The conviction judgment handed down by the majority of the trial court is unsustainable from a formal and substantial standpoint, due to its notorious lack of foundation and of criminal action. Our current Political Constitution, in force since 1949, guarantees that no one shall be made to suffer a criminal penalty without the necessary demonstration of their guilt (article 39 of the Political Constitution). In accordance with the laws of the Republic, since the guilt of Dr. [Name012] has not been demonstrated, since his material defense has not been rebutted, the presumption of innocence guaranteed to every accused of a crime by our Political Constitution and international instruments on human rights remains intact, particularly articles 11, paragraph 1 of the Universal Declaration of Human Rights (UN General Assembly of December 10, 1948); 26, first paragraph of the American Declaration of the Rights and Duties of Man (Ninth International Conference of American States of May 5, 1948); 14, paragraph 1 of the International Covenant on Civil and Political Rights (approved by Law No. 4229 of December 11, 1968); and 8, paragraph 2 of the American Convention on Human Rights (known as the Pact of San José, approved by Law No. 4534 of February 23, 1970), norms that are of immediate and direct application to this matter and which even have authority superior to laws, according to article 7 of our Political Constitution. Apart from alleging his innocence, Don [Name012], also in the legitimate exercise of his material defense, personally filed the appeals against the conviction judgment described in the preceding Considering (I) of this resolution, in which he has denounced a large number of errors of form and substance, some relating to the judgment, others to earlier stages of the process. From the entire set of issues proposed by Dr. [Name012] for the comprehensive review of the conviction judgment handed down by the majority of the trial court, it is clear that there are certainly some defects that determine the nullity of that majority ruling (whether these defects are considered independently or jointly). These defects, which by themselves imply the nullity of everything resolved, relate to the determination of the fact held as proven (A); that the criminal action was extinguished because the statute of limitations (prescripción) had taken effect (B), as explained below. **A) Defects in the process of determining the fact held as proven:** In the first place, errors of form are observed in the process followed for the determination of the fact held as proven, because it was essentially derived from illegitimate evidence and because the analysis and assessment of the evidence infringed the rules of sound criticism, rendering the judgment lacking in any foundation that could reasonably justify it, a defect that violates article 39 of the Political Constitution, according to which every criminal conviction is conditional upon a necessary demonstration of guilt. **A.1.- Spurious evidence.** Evidence that has been illicitly *obtained* cannot be lawfully incorporated into the process, according to the rule set forth in the first paragraph of article 181 of the Code of Criminal Procedure, which clearly states: "*Evidence shall only have value if it has been obtained by a lawful means and incorporated into the procedure in accordance with the provisions of this Code*." According to article 180 of that same legal text, "*The Public Prosecutor's Office and the courts have the duty to seek for themselves the investigation of the truth through permitted means of evidence...*", which must be understood in light of the general principle stated in article 175 of that same legal body regarding defective procedural activity:

«*Acts carried out in disregard of the forms and conditions provided for in the Constitution, in International or Community Law in force in Costa Rica, and in this Code may not be evaluated to support a judicial decision or used as its premises, unless the defect has been cured, in accordance with the norms governing the correction of judicial actions.*» Our Constitutional Chamber broadly developed the general right to legality, indicating that:

«*Although the principle of legality and the corresponding right of all persons to legality—and, of course, above all, to constitutional legality and legitimacy—seem to refer more to substantive than procedural problems, they nonetheless have important repercussions on due process, even in its strictly procedural sense.*» «*In the most general terms, the principle of legality in the rule of law postulates a special form of binding of public authorities and institutions to the legal system, based on its basic definition according to which every public authority or institution exists only and may only act to the extent it is empowered to do so by the same legal system, and normally by express text—for public authorities and institutions, only what is expressly authorized constitutionally and legally is permitted, and everything not authorized is prohibited—; as well as its two most important corollaries, still within a general order: the principle of minimum regulation, which has special requirements in procedural matters, and that of legal reserve, which in this field is almost absolute. In our Political Constitution, the general principle of legality is enshrined in Article 11, and follows, moreover, from the context of this article with Article 28, which establishes the general principle of freedom—for private persons—and guarantees the legal reserve to regulate it, with Article 121, especially insofar as it grants the Legislative Assembly exclusive powers to legislate (subsections 1, 4, and 17), to create 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 cannot be delegated nor, therefore, shared with any other power, body, or entity (Article 9), and which generate even more explicit consequences such as those contained in the General Law of Public Administration, mainly in its Articles 5 and 7—which define the normative hierarchies—, 11—which enshrines the principle of legality and its corollary of minimum regulation—, 19, and 59.1—which reaffirm the principle of legal reserve for the regime of fundamental rights and for the creation of public powers with external effect—. Likewise, bear in mind that in Costa Rica, such legal reserve is confined to the formal law emanating from the legislative body, given that any delegation among public powers is constitutionally prohibited (Art. 9), thus making acts with the force of law unthinkable, at least in situations of normality.*» «*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 law, that is, to norms emanating from the legislative body and through the law-making procedures, with total exclusion of autonomous regulations and almost total exclusion of the executive regulations of the laws themselves; as well as that procedural law must be sufficient to discipline the exercise of jurisdictional function and the activity of the parties before it, such that no significant gaps remain to be filled by regulatory or subjective means; and, finally, that the requirements of procedural law must have guaranteed efficacy, material and formal, to the point that in this matter, violations of mere legality become, by virtue of the principle, automatically violations of due process, therefore of constitutional rank.*» (emphasis supplied, Constitutional Chamber, No. 1739-92 at 11:45 hours on July 1, 1992).

However, the facts that the majority of the trial court has held as proven were essentially derived from two unsuitable sources: on one hand, they were derived from illegitimate evidence—evidence that was illicitly obtained—, specifically from the so-called "evidence 588" (documentary). On the other hand, the facts were also derived from the testimony of the defendant [Name026], but this was erroneously analyzed and assessed by the trial court. The erroneous consideration of these two sources of knowledge invalidates the determination of the fact that was held as proven (since, moreover, there are no other distinct, legitimate, and suitable elements of evidence from which to derive the existence of the accused fact), as explained below. **a.- The illegality of "evidence 588" that gave rise to the case called 'Caja-Fischel' and to the present matter.** Documentary evidence No. 588 is a certified copy of the Judicial Assistance from the Republic of Panama, which was obtained at the request of our Office of the Attorney General of the Republic from the National Director for the Execution of Treaties on Mutual Legal Assistance and International Cooperation of the Ministry of Government and Justice of the Republic of Panama. It contains banking information for the Panamanian company Marchwood Holdings and was obtained without a judicial order (placing it in the same situation as other evidence that was brought into the process under identical circumstances and which the trial court itself confirmed is illicit evidence, by resolution at 8:00 hours on May 14, 2010, cf. Volume XXVII, folios 13352 to 13408 verso, rejecting the request of the Public Prosecutor's Office for a declaration that those other pieces of evidence were lawful and for their admission to be presented at trial, after having been excluded by the judge of the intermediate stage). Evidence No. 588 is *essential* in this matter because it was what allowed the Public Prosecutor's Office to learn of the existence of Servicios Notariales Q.C.S.A. and, based on it, to request the lifting of bank secrecy in relation to said company in the National Banking System, which involves all the evidence obtained in relation to Servicios Notariales Q.C.S.A. through Banco Cuscatlán de Costa Rica, Cuscatlán International Bank, or the Cuscatlán Group, and in general all the evidentiary activity originating from the constitutional violation related to evidence No. 588. The defense of the defendants agrees that there is no independent source prior to the constitutional violation from which the evidence could have been obtained and that it could not have been inevitably discovered either, so there is no possibility of excepting the exclusionary rule for illegal evidence. In contrast, the Public Prosecutor's Office considers that evidence No. 588 is lawful based on the consent of [Name032] for its use. The majority of the trial court considered that evidence 588 is lawful and devotes a large part of Considering II of the judgment to justifying that criterion (in the section titled "Objections to evidence No. 588 and all the banking documentation obtained from the 'Caja-Fischel' case brought to this process and derived from said evidence"), noting that in any case, the same data are derived from the statement of [Name032] (whom it considers the sole holder of the right to privacy of that banking information, who has consented to its use), doing so on the basis of jurisprudential criteria of the Supreme Court of the United States of America (cf. judgment, pages 889 to 952). Conversely, the dissenting vote of Judge Camacho Morales begins precisely with the analysis and assessment of evidence 588, which he considers was obtained illegally and cannot be used to support the judgment, because it was obtained without a reasoned order from a judge (cf. judgment, dissenting vote, pages 1903 to 1943). He explains that the rightsholder's consent must be prior to the act, according to the doctrine of Professor Francisco Castillo Gonzáles and the jurisprudence of the Third Chamber (votes No. 111 at 8:40 hours on March 26, 1993, and No. 604-2008 at 12:10 hours on May 23, 2008) and the Court of Criminal Cassation (No. 308 at 17:00 hours on April 7, 2008), and notes that although some vote of the same Chamber appears to contradict this thesis and that the Public Prosecutor's Office invokes in its favor, it is not a case that faithfully reflects the dominant criterion (specifically vote No. 232 at 17:00 hours on March 11, 2011, which was handed down by substitute magistrates). He also states that curing this defect through the subsequent consent of [Name032] is not possible:

«*In the present matter, it is evident that the consent of [Name032] is subsequent to, and not prior to, the impact on the constitutional right to privacy, since approximately six years after the evidence was obtained illegally, due to the lack of a judicial order, as this Court resolved in a resolution at 8:00 hours on March 14, 2010, the Public Prosecutor's Office, knowing this Court's criterion, approached the alleged legal representative of the offended company (Marchwood Holding), Mr. [Name032], and asked him to consent to the illegally obtained evidence in Panama, concerning his represented party, being used in this process and to validate with his consent the way it was obtained and the use given to it in stages of the process prior to trial, to which Mr. [Name032] agrees by signing the document incorporated as documentary evidence No. 759, dated May 17, 2010, three days after the aforementioned resolution of this Court. Said consent does not meet the minimum requirements to operate as a cause for justification and eliminate the criminal nature of the Public Prosecutor's Office's intervention. If said evidence were admitted, the State would be allowed to take advantage of actions by its officials—which could be criminal—to judge and criminally convict citizens, thereby losing all ethical legitimacy to impose a sanction.*» (Judgment, page 1923).

Judge Camacho Morales links this issue with the jurisprudence of the Constitutional Chamber on the principles of amplitude of evidence and legitimacy of evidence:

«*a) The principle of the amplitude of evidence: Given that the purpose of the procedure is, above all, the real investigation of the facts, both the Public Prosecutor's Office and the judge have the duty to investigate that objective truth diligently, without disdaining any legitimate means of evidence, especially if offered by the defense it is not manifestly impertinent, and even ordering for better provision whatever is necessary, even if offered irregularly or untimely.*» In criminal matters, everything can be proven and by any legitimate means, which implies, of course, the absolute prohibition of using illegitimate means of proof and of giving them, if they in fact exist, any formal or material significance.</i>.»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>b) The principle of the legitimacy of evidence: The latter raises, certainly, a difficult issue, which appears at the heart of the case giving rise to this consultation, namely, illegitimate evidence, its formal treatment and its assessment, a topic on which criminal and constitutional doctrine and jurisprudence have not yet reached a consensus. However, this Chamber has already been adopting a position, if not unanimous, at least constant, based on the hypothetical suppression of the spurious evidence, in the sense that, <u>besides denying it all probative value in itself</u> -on which there seems to be no discussion-, <u>it is suppressed from the process, that is, it is assumed that it did not exist and, therefore, other evidence, not illegitimate per se, is also invalidated insofar as it was obtained through it</u>. The differences between the majority and the minority of the Chamber have been rather of nuance and degree attributed to the said principle of hypothetical suppression, so it can be said that this is the criterion supported by the binding erga omnes value of the precedents and jurisprudence of the Constitutional Jurisdiction, ordered by Article 13 of its Law -in this sense, see, for all, for example 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, among many others</i>-.» (underlining not in original, Constitutional Chamber, No. 1739-92 of 11:45 a.m. on July 1, 1992).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>This Chamber in its pronouncements has also indicated that incriminating evidence cannot be assigned that sole purpose</i> [of demonstrating the accused's guilt with certainty], <i>but also that of being<span style='mso-spacerun:yes'> </span>a guarantee for the realization of a fair process, eliminating judicial arbitrariness, since the fundamental right of the presumption of innocence requires, in order to be rebutted, evidentiary activity obtained while respecting fundamental rights</i>» (Constitutional Chamber, No. 2001-7341 of 2:38 p.m. on September 12, 2001).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Among the different interpretations on the lawfulness or not of evidence, we have the theory of spurious evidence.<span style='mso-spacerun:yes'> </span>Theory of spurious evidence or theory of the fruits of the poisonous tree (fruit of the poissones tree doctrine), which supposes that whenever an evidentiary medium originating from a constitutional violation provides elements of guilt for the accused, the act producing the evidence is null and void, as is all evidentiary medium derived from it.<span style='mso-spacerun:yes'> </span>In that same line of thought, we find the relative position, called the ‘independent source’, according to which, if the evidence derives from an act violating constitutional guarantees, but also originated from another autonomous element gathered during the investigation and <u>prior</u> to the constitutional violation, the evidence remains valid, because that evidence came from another element, and not necessarily from the act violating the Constitution.<span style='mso-spacerun:yes'> </span>This Chamber, in vote 701-91, already stated: ‘...the thesis of the majority of the Chamber regarding the validity of evidence related to illegitimate evidence can be synthesized by saying that the former retains its validity as long as it does not have the latter as its origin’, understanding then that the causal chain producing the evidence must be studied, with evidence being spurious and null that comes exclusively from a violation of the Constitution</i>» (underlining not in original, Constitutional Chamber, No. 02529-94, cited in No. 2005-04707 of 3:03 p.m. on April 27, 2005).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>And it is in this manner that Judge Camacho Morales concludes that not only is evidence No. 588 null and void, but also all other evidence that originates or derives exclusively from it and that, applying the method of hypothetical suppression of the unlawful evidence, the accused fact must be deemed unproven, since there are no other independent or autonomous evidentiary elements prior to the violation of the Political Constitution. Judge Camacho Morales explains that the Public Prosecutor's Office's own accusation corroborates that it is the evidence obtained in Panama, in relation to Marchwood Holding, that allowed the discovery of Servicios Notariales Q.C.S.A. (cf. accused fact No. 190 on page 45), and adds:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>In the previous fact</i> [No. 190, page 45] <i>it is clear, and the Public Prosecutor's Office itself affirms it, that it was the evidence obtained in Panama that led to the discovery of Servicios Notariales Q.C.S.A. and that said evidence was the basis for the news published by the media in relation to Servicios Notariales Q.C.S.A., evidence that is precisely what is declared unlawful in this majority vote, also demonstrating that there was a transfer of information from the Public Prosecutor's Office to the media in flagrant violation of the duty of privacy provided for in numeral 295 of the Criminal Procedure Code and 22 subsection 3 of the Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones</i> [Law No. 7425]<i>, conduct that could constitute the crime of disclosure provided for in numeral 24 of the same Law</i>» (Judgment, page 1939).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>Judge Camacho Morales also points out that from the testimony of [Nombre032] it can be clearly established that on his part, in relation to his allegedly represented company Marchwood Holding, there was never prior and express consent for obtaining documentary evidence No. 588, but rather that said authorization occurred several years after the evidence was obtained in Panama (cf. Judgment, pages 1939 to 1940).<span style='mso-spacerun:yes'> </span>He then concludes that:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«…<i>it is not possible to deem any fact of the accusation proven, because all the evidence gathered in the process is unlawful evidence, as the entire investigation derived from one, or rather, from several constitutional violations in the obtaining of the evidence that guided the investigation from its genesis, and since there is no possibility of excluding the application of the doctrine of the fruits of the poisonous tree, such as the independent source of the evidence or the inevitable discovery thereof, nor any other exception that excludes the application of the exclusionary rule of unlawful evidence, according to which, evidence obtained directly from a constitutional violation must be excluded from the process as well as all that which derives indirectly from the unlawful evidence, which in this process is the entirety</i>.»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>The foregoing is sufficient reason to absolve all the accused of all penalty and responsibility, given the impossibility of establishing, with lawful evidence, any link of the funds that, according to the accusation, they received with Servicios Notariales Q.C. and with Alcatel Cit.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>The appealed judgment was issued on April 27, 2011, and a few days later the Third Chamber of the Supreme Court of Justice issued the judgment resolving the appeals on cassation that had been filed in the case known as «Caja-Fischel» (judicial case file (expediente) No. 04-005356-0042-PE).<span style='mso-spacerun:yes'> </span>By majority decision, Magistrates Ramírez, Pereira, and Chinchilla declared the nullity of all evidence gathered in Panama through the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (T.A.L.M.), as well as all evidentiary elements directly dependent on it (cf. Third Chamber, No. 499 of 11:45 a.m. on May 11, 2011, folios 14004 to 14014, 14042 to 14043 and 14541 of case file (expediente) No. 04-005356-0042-PE, there is a dissenting vote (voto salvado) by Magistrates Arroyo and Víquez), which in our understanding definitively resolves the discussion on the legitimacy of this documentary evidence, in the same sense as expressed by Judge Camacho Morales and in the same manner as considered by this Chamber of Appeals.<span style='mso-spacerun:yes'> </span>The Third Chamber indicates:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<b>Regarding the challenge against the validity of the Panama evidence</b>: By a majority composed of Magistrates <b>Ramírez Quirós, Pereira Villalobos and Chinchilla Sandí</b>, this extreme of the claim is declared with merit, also formulated through the second ground of appeal, decreeing the nullity of the evidence gathered in Panama through the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (T.A.L.M.) and all evidentiary elements directly dependent on it. To analyze the claim of the appellants, we must first go back to the origins of the 1996 Criminal Procedure Code reform, which is inspired by respect for human rights, whether the person is an accused or a victim. Regarding the accused, which is the point under discussion, the principle of Innocence is established as the foundation, from which derives, among others, the need for a prior trial and that the process be the one regulated by the Code, as also determined 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, treaties that, as they all refer to the fundamental rights of the person, are and must be analyzed with primacy over any mutual legal assistance treaty between countries, thus Article 2 Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. Returning to the background of the Criminal Procedure Code currently governing us, one of the fundamental aspects it retakes is respect for Due Process and it places special emphasis on the Inviolability of the Defense (Article 39 of the Political Constitution), for this reason we have affirmed, with great success, that the reform in question is nothing more than the constitutionalization of Criminal Procedural Law. Under this conception, the legislator considered that the investigation of criminal cases should be directed by the Public Prosecutor's Office, precisely for greater control in the manner of bringing evidence into the process, in strict compliance with the Constitution and the law; in other words, the Public Prosecutor's Office, which is in charge of investigating crime, must direct the actions of investigative officers, in order to bring, through all lawful means at its disposal, evidentiary elements into the process; the foregoing implies the absolute prohibition of using illegitimate means of proof which, consequently, the Judge cannot give any formal or material significance, because the procedural order, under no circumstances, tolerates the sacrifice of constitutional guarantees that protect the citizen in favor of the search for truth in the criminal process (in this sense, the Judicial Investigation Agency (Organismo de Investigación Judicial), the Public Prosecutor's Office, and the Judge must strictly adhere to the Constitution, International Human Rights Treaties, and the Law) because the legitimacy of the acts and their lawfulness become the only valid criterion to be taken into consideration by the judge in resolving a specific case; the contrary means the obligation of the hierarchical superior to declare, even ex officio, the ineffectiveness of the procedural act. In the specific case, the evidentiary elements obtained in the Republic of Panama, although it is true, according to the internal laws of that country, in which, due to the constitutional rank of the Public Prosecutor's Office prior to the reform of the Criminal Procedure Code of Panama in the year two thousand eight, it had the power to lift bank secrecy without jurisdictional authorization in the process of an investigation in that country, and therefore, as indicated by the appealed ruling, in the procedure carried out in that country, there is no violation of internal Panamanian law, whence for that legal order, the evidence is obtained legally; there is a serious procedural defect from the outset that occurs in Costa Rica, regarding the application of the Criminal Procedure Code which requires the Public Prosecutor's Office to make the request for lifting bank secrecy to the Judge of Guarantees (Juez de Garantías), to arrange before the Central Authority (pursuant to the Mutual Legal Assistance Treaty) for assistance in order to bring from that country evidence that implies violating the sphere of privacy of their accounts and private correspondence; this absolute procedural defect, in our judgment, has been overlooked by all the authorities intervening in process number 04-005356-042-PE, arguing that, since in Panama the Public Prosecutor's Office is empowered to carry out the act, in our country the Public Prosecutor's Office can arrogate to itself the right to request directly from the Central Authority (Procuraduría General de la República) the execution of the proceeding, without the assessment of the Judge of Guarantees being necessary; an interpretation which, in our judgment, can in no way be endorsed by those of us who have been appointed as the last instance to which the parties can appeal for satisfaction and protection of the fundamental rights of their clients. It cannot be valid in our Democratic Rule of Law State that, for the sake of agile compliance with the prosecution of individuals accused of the alleged commission of criminal acts, without distinction of the person involved, the rights that assist individuals accused of a crime are arbitrarily and illegitimately trampled upon (by those who at that determined moment had the functional direction of the process in the Public Prosecutor's Office), with an erroneous interpretation of unlimited powers, from the very moment they are considered suspects of committing that criminal act. It is clear that our democratic system, in its Legal Order, has opted for the wise decision of leaving it in the hands of the competent jurisdictional body to ensure the protection of fundamental rights (among which are the right to privacy, the secrecy of communications, and the inviolability of private documents), which is why it authorizes, under exceptional and previously established circumstances, the cases in which these may be restricted, specifically for the knowledge of matters submitted to the Courts of Justice, in which the judge can order the lifting of that secrecy. In the present case, that jurisdictional assessment was required to request the Central Authority, pursuant to the cited treaty, to give the corresponding processing to the request for assistance that the Public Prosecutor's Office required to bring documentary evidence from Panamanian banks into the investigation; this is so because it must be the judge who weighs the necessity, utility, pertinence, and proportionality of the request made by the body in charge of the investigation. It is important to note here that the interpretation given in this process by the Public Prosecutor's Office is erroneous, a body that, in our understanding, is the first that must be clear about its function and its investigative powers, to the extent conferred by the Constitution and the current Law, so as not to carry out an action that, it should have known, disregarded the limits that the legal order imposes on it by directly requesting the Procuraduría General de la República to process a request for assistance to Panama, which should have been previously authorized by the Judge of Guarantees, since it implied violating the fundamental rights of individuals subject to proceedings in our country and that, as is known to each and every one of the justice operators in Costa Rica, ordinary legislation requires that: a) the order be duly substantiated. b) If possible, individualize the documents on which the decision will be executed, the name of the person holding them, and the place where they are located. c) Have as a prerequisite a criminal activity, with a determination of a verified indication regarding its commission. All these aspects require prior weighing of the necessity, suitability, and proportionality of the request that the Public Prosecutor's Office should have brought to the attention of the jurisdictional authority; it would be a gross error to conclude, as the lower court (a quo) does, and the dissenting opinion of this Chamber endorses, that this implies giving an order to the Panamanian authorities; quite the contrary, it constitutes the endorsement of the jurisdictional authority of Costa Rica so that the Central Authority of our country, pursuant to the repeatedly cited treaty, proceed with what is stipulated before the competent authority of Panama. The foregoing is not a mere formality; it constitutes the procedural act that legitimizes, according to the internal order, the ordered intrusion into the private sphere of a person, because it is neither the function nor the power of the Attorney General, nor of the representatives of the Public Prosecutor's Office, to require and obtain confidential information about individuals without prior authorization from the Judge ensuring respect for the fundamental rights of citizens subject to proceedings. This is concluded from the provisions of Articles 24 of the Political Constitution, 12 of the Universal Declaration of Human Rights, 11, subsections 2 and 3 of the American Convention on Human Rights, and 17 of the International Covenant on Civil and Political Rights, all embodied in Articles 2 and 3 of the Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de la Comunicaciones, No. 7425 (a law that even criminally penalizes its non-compliance) and 107 of the Organic Law of the Judicial Branch. The power that the Criminal Procedure Code establishes, in its Articles 226 and 290 final paragraph, for the Public Prosecutor's Office to request reports from private individuals or public entities, according to what is stipulated, is valid as long as it does not involve private information, protected by Article 24 of the Political Constitution; otherwise, according to the second paragraph of Article 181 of the CPP, it implies a violation of Due Process, due to infringement of the fundamental right to the privacy of private documents. The Mutual Legal Assistance Treaty aims to strengthen and facilitate the cooperation of the justice administration bodies of the region, through an instrument that allows assistance in criminal matters, but it is clear that it must be done with full respect for the internal legislation of each Member State; what is replaced is the cumbersome consular procedure; to streamline communication channels, in no way can its content have repercussions on the system of applicable guarantees in the country, so much so that its preamble expressly establishes that such assistance is provided with full respect for the internal legislation of each State. As mentioned at the beginning of this vote, the possibility of streamlining procedures cannot become an open letter to arbitrariness, arrogance, and disrespect for constitutional guarantees and the current internal order. It is not legitimate that, as happened in the present case, representatives of the Public Prosecutor's Office even travel to another country in order to be present at the collection of evidence and do not take the minimum time to correctly make the request before the corresponding jurisdictional authority, thereby sacrificing essential evidence for the resolution of the case submitted to the knowledge of the Costa Rican courts, having to decree the ineffectiveness of the act performed in violation of Due Process and which, moreover, entails time and money that all Costa Ricans must also pay. On previous occasions, this Chamber has already declared the ineffectiveness of actions in similar procedural acts in which the Public Prosecutor's Office, in carrying them out, has acted contrary to the law, with very regrettable consequences for the correct administration of justice, and in this aspect, as noted at the beginning, without distinction of the person subject to the process, the law is equal for all and, consequently, it is not about achieving a conviction at all costs, but that which results from the correct introduction of evidence into the process, in accordance with the Constitution and the law in force in the country, and its consequent assessment, in strict adherence to the rules of sound criticism (sana crítica), such that the accusing entity must be the first interested in presenting a case to the jurisdictional body, not only with the possibility of making its thesis prevail in the adversarial proceedings of the debate, because it possesses sufficient evidence, but that this evidence is effective because in its collection it has respected the constitutional guarantees that protect the person subject to process. On this topic, it has been sustained in the doctrine “…<i>In our context, the constitutional structuring of procedural norms has always been under discussion. For example, information obtained in violation of constitutional guarantees cannot be used; therefore, Article 96 of the New Criminal Procedure Code (NCPP) conditions the validity of the act on respect for the fundamental rights of the person, except ‘when it favors the accused’ (Art 181 NCPP). The doctrinal current is maintained that orders that this type of irregularities are not susceptible to validation in accordance with Article 178 NCPP and must be declared ex officio by the Judge, provided they imply non-observance of rights and guarantees not only in the Constitution but also in current International or Community Law</i>.” (ARMIJO SANCHO, Gilberth, Garantías Constitucionales, Prueba Ilícita y Transición al Nuevo Código Procesal Penal. Premio Anual. Alberto Brenes Córdoba, page 127). Consistent with this position, national jurisprudence has leaned towards the doctrine of “<i>the fruits of the poisonous tree</i>” in the sense that evidence obtained as a result of unlawful evidence has no probative value. It is important to reaffirm that, despite the supra-legal status held by the TALM, it does not place it above the Political Constitution, given that this condition is only achieved by Human Rights treaties (Article 48 of the Political Constitution). In conclusion, the obtaining of the evidentiary elements that were brought into the criminal process against, [Nombre032], [Nombre037], [Nombre021], [Nombre038], [Nombre039] known as [Nombre040] and [Nombre041], through the letters rogatory to Panama and their extensions, without observance of the constitutional and legal guarantees that govern the ability to request their obtaining according to the internal order in Costa Rica, constitute spurious evidentiary elements, illegitimately incorporated into the process. Through absolutely defective procedural activity, their ineffectiveness is declared, as well as that of the other evidentiary elements that directly derive from it, specifically: the documentary evidence obtained through the Letters Rogatory to Panama and their extensions, the investigative statement (declaración indagatoria) of [Nombre032], insofar as it is based on the Panama evidence; the testimonies of [Nombre042], Panamanian Prosecutor, [Nombre043], assistant Panamanian Prosecutor, [Nombre044], Director of the Office for Execution of the Legal Assistance Treaty, all witnesses who refer to the evidence whose ineffectiveness is declared in terms of content and method of obtaining; the OIJ Report No. 200- DEF-495-04-06, insofar as it refers to the Panama evidence; statement of the experts from the Judicial Investigation Agency (Organismo de Investigación Judicial), [Nombre045] and [Nombre046] insofar as it corresponds to the referenced evidence. Lastly, it is necessary to analyze the <b>validation that the lower court (a quo) performs on all the evidence based on the letters rogatory to Panama and their extensions, in hearing number 156 of the debate, with the Court supporting its decision on the “authorization” given by the accused [Nombre032] when giving his investigative statement (declaración indagatoria)</b>; which is absolutely illegal. First of all, because, since there are several accused who file the Defective Procedural Activity (Actividad Procesal Defectuosa) motion, having seen their fundamental rights affected, as the procedural act through which the evidence was obtained did not observe respect for Due Process; the fact that Mr. [Nombre032] himself desists from his incidence for Defective Procedural Activity, an action also taken by his technical defense, cannot validate an act that affects other co-accused in the case, whose fundamental right to privacy of their documents has been violated. The citation made in the minority vote of the jurisprudence of this Chamber in no way corresponds to the issue raised here, because in that case there is no harm to the fundamental rights of other implicated parties and the evidence was only important in proving a fact between the one who authorizes it and the offended party.

In addition to the foregoing, the authorization that relieves the necessary intervention of the Judge is only valid insofar as it is given prior to the performance of the procedural act; in this regard, see the provisions of the first paragraph of Article 29 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications, No. 7425, a provision that must be harmonized with the provisions of Article 24 of the Political Constitution and Article 1 of the Criminal Procedure Code. In a second and very important aspect, Article 29 of the special law cited expressly provides that the authorization to access banking documentation, when there are several account holders, must be given by all of its holders. It is established in the case file that the holders of account [Valor034] at BAC INTERNATIONAL BANK OF PANAMA ARE [Nombre032] AND [Nombre047]; this constitutes the main account, as it is the one opened in Panama for the purpose of receiving, as established in the appealed judgment, the monies paid by the company Instrumentarium Corp. Medko Medical, monies that are then transferred to their personal accounts Marchwood Holding, Harcourt Holding, Walka, and to the personal account of the co-defendant [Nombre037], according to the evidence whose ineffectiveness is declared in the majority vote. The foregoing means that, although [Nombre032] held representation, with the possibility of acting individually, this cannot be validly interpreted, in contravention of the law, as the lower court (a quo) does in the challenged resolution, because Article 29 of Law No. 7425 of August 9, 1994, expressly requires the authorization of all holders, and this is so precisely because that authorization implies intrusion into the sphere of personal intimacy and the privacy of documents, protected in the Political Constitution, whereby the decision made by one of its holders cannot violate that right over the others. Consequently, the Court's decision to validate the defective procedural activity affecting the letters rogatory to Panama and their extensions is an act that does not comply with the provisions of the law; therefore, it does not have the effect of validating the vitiated act and does not in any way affect what has been stated regarding the declaration of ineffectiveness of all evidence originating from Panama. Judges Arroyo Gutiérrez and Víquez Arias dissent.

If, according to the precedent of the Chamber, that documentary evidence and its direct derivatives are null and void for that matter, they are necessarily also null and void for the present case, which is a derivative of the former. It is not superfluous to add that disregarding this precedent of the Chamber would give rise to a contradiction that could eventually constitute grounds for cassation (Article 468, subsection a) of the Criminal Procedure Code). Thus, evidence 588 and all evidentiary elements directly dependent on it are null and void. With this documentary evidence suppressed, only the statement of the collaborating defendant [Nombre026] remains. b.- Regarding the existence of a parallel and independent line of journalistic investigation. During the oral hearing, the Prosecution stated that it would take the opportunity to give "complementary arguments to those raised in the judgment to support the lawfulness of this evidence" (cfr. audiovisual record c0002121107132843.vgz, from 13:42:10 to 13:42:30) and insisted that not only is evidence No. 588 lawful, but also that there is an uninterrupted, parallel, and independent line of journalistic investigation, which may also be a source of independent evidence for the accreditation of the fact constituting the object of this judicial process, according to jurisprudence or doctrines of the Supreme Court of the United States of America. It refutes the criterion expressed by our Third Chamber in judgment No. 2011-499 (Caja-Fischel case) to argue that Mr. [Nombre032] is indeed legitimized to authorize the use of evidence 588. This Chamber does not share the Prosecution's criterion. As stated in the previous section—to which we refer to avoid unnecessary reiterations—evidence No. 588 is illegal, as are all evidentiary elements that derive directly from it, according to the Political Constitution and Costa Rican laws, which allow the matter to be resolved directly, as the Third Chamber of our Supreme Court of Justice did. Nor is the thesis that the judgment's reasoning can be "complemented" through this avenue of challenge, or that the fact that is the object of the process can be derived independently from the journalistic investigation, admissible, for the following reasons. Firstly, because it is the judges of the trial court, not the prosecutors, who have the power to reason the conviction judgment. The prosecution cannot complement or integrate reasons to make up for the lack of reasoning of a judicial resolution that is being challenged (the judgment must be self-sufficient regarding its reasoning). Secondly, because, in principle, the manner in which the media obtain information protected by Article 24 of the Political Constitution cannot be presumed lawful, if they have obtained it from a supposed "confidential source" or by means different from those prescribed by the Political Constitution and the laws of the Republic. Information in such a situation may perhaps be recorded in their news reports or give rise to new lines of journalistic investigation (even as a legitimate exercise of the right to information) and thus give rise to valuable debates of public interest, but it definitively cannot be incorporated into the criminal process to support a conviction, because there is an impassable limit imposed by Article 181 of the Criminal Procedure Code:

«*Evidentiary elements shall only have value if they have been **obtained** by a lawful means and incorporated into the procedure in accordance with the provisions of this Code.*» «*Unless it favors the defendant, information obtained through torture, mistreatment, coercion, threat, deceit, undue intrusion into the intimacy of the home, correspondence, communications, private papers and archives, or information obtained by any other means that impairs the will or violates the fundamental rights of persons, may not be used.*» (underlining supplied).

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

«*In general, all banking activity involving contracts, applications, and any other type of relationship with private individuals—as clients—is, by its nature, covered by bank secrecy.* -» «*The operations that private individuals carry out with banks—as subjects of private law—constitute, both in their obtaining and in the form and manner of their constitution and service, private documents that are covered by the protection established by Article 24 of the Constitution—unless, by their nature, they must be recorded in public documents or registries, also public, from which, and without the bank's intervention, the information they contain could be obtained—so the bank cannot provide it except in the cases and in the manner that said article provides for this purpose.*» (Constitutional Chamber, No. 578-92 of 10:45 hours on February 28, 1992).

Article 615 of the Commercial Code provides that:

«*Current bank accounts are inviolable and banks may only supply information about them at the request or with the written authorization of the owner, or by order of a competent judicial authority. Excepted is the intervention that, in compliance with its functions determined by law, the Superintendencia General de Entidades Financieras or the Dirección General de Tributación authorized for this purpose makes.*» The "Law on Registration, Seizure, and Examination of Private Documents and Intervention of Communications" (Law No. 7425 of August 9, 1994) is the special legislation that—in compliance with Article 24 of the Political Constitution—establishes in which cases Courts of Justice may order the seizure, registration, or examination of private documents when it is absolutely indispensable to clarify matters submitted to their knowledge. From a constitutional and legal standpoint, when it is absolutely indispensable to lift bank secrecy in order to clarify a matter submitted to the knowledge of a Criminal Court, that information *can only* be obtained by the Courts of Justice and necessarily in the manner provided by the law governing this matter. In any case, the alleged line of journalistic investigation is not even prior to and independent of the act of judicial assistance from Panama that vitiated evidence No. 588, since all the articles are subsequent to or expressly refer to the prosecution's investigation as the source of information. A.2.- The statement of the defendant [Nombre026]. The participation attributed to Mr. [Nombre012] is derived by the court from the testimony of [Nombre026]. a.- General considerations on the evaluation of the statement given by a "collaborating defendant". The principle of opportunity is an exception to the principle of legality (principio de legalidad), according to which the Public Prosecutor's Office is responsible for exercising public criminal action (acción penal pública) in all cases where it is appropriate, in accordance with the provisions of the law. In this sense, the principle of legality seeks to guarantee legal certainty and equality in the application of the law. But Article 22 of the Criminal Procedure Code regulates a list of exceptions to that rule, which it calls "criteria of opportunity" (criterios de oportunidad). These are very specific cases in which, with prior authorization from the hierarchical superior, the representative of the Public Prosecutor's Office may request that the criminal prosecution be waived, totally or partially, or limited to one or several infractions or to some of the persons who participated in the act. Of these cases, we are interested in the one provided for in subsection b) of Article 22 of the Criminal Procedure Code, which reads as follows:

«*It involves matters of organized crime, violent criminality, serious crimes, or complex processing, and the defendant collaborates effectively with the investigation, provides essential information to prevent the continuation of the crime or the perpetration of others, helps to clarify the act investigated or other related acts, or provides useful information to prove the participation of other defendants, provided that the conduct of the collaborator is less reprehensible than the punishable acts whose prosecution he facilitates or whose continuation he prevents.*» This hypothesis is called by some "Crown Witness" for historical reasons (relating to the origin and development of the institution in the Anglo-Saxon system, meaning witness of the King or Queen), while others call it—in a form that is more than imprecise, pejorative—"repentant" witness, "informer," or "snitch." Because Costa Rica is a Republic in which the dignity of persons is respected (Articles 1 and 33 of the Political Constitution), we choose to refer to this subject as a "collaborating defendant" (imputado colaborador), as these are the terms in which Article 22 of the Criminal Procedure Code describes him. For the application of this exception to the principle of legality to be reasonably justified, the results indicated in the rule must be obtained (increasing the effectiveness of the investigation of the facts, preventing the continuation of the crime or the perpetration of others, obtaining useful information to prove the participation of other defendants), but respecting a value judgment, namely, that the obtaining of those results regarding the punishable acts whose prosecution it facilitates (or whose continuation it avoids) is more valuable than the reproach that can be made to the collaborator for his conduct. In other words, that it is more convenient to partially or totally waive the criminal prosecution against the collaborating defendant if, through his collaboration, those benefits are achieved. The figure itself has been heavily criticized because it breaks fundamental principles of a State governed by the rule of law (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), going so far as to say that:

«... *recognizing in the Public Prosecutor's Office a discretionary power (opportunity without further qualification or regulated opportunity) so that it may: 1) Either not exercise criminal action, even though it is aware of the existence of an act with the appearance of a crime, whereby the process does not even begin, 2) Either request that a penalty distinct from or lower than that legally established be imposed on the accused, even though it is aware that the penalty established in the Criminal Code is another or greater, and 3) Either conclude the process without a conviction being handed down in it, and always despite the existence of an act, at least apparently constituting a crime, all of this must necessarily entail the perversion of the entire substantive criminal system.* » «*The most serious aspect of the case is that all the effort of the criminal legislator, the political decisions adopted when typifying a conduct and when establishing a penalty, can be rendered meaningless by virtue of a non-criminal norm that authorizes the Public Prosecutor's Office to dispose of the application of that criminal law in specific cases. If the norm establishing the principle of opportunity were to be classified as procedural, one would arrive at the contradiction that the entire Criminal Code would be subject in its application to a criminal procedural norm, to a single norm, with which it could be said that all the substantive criminal norms are emptied of content.*» (MONTERO AROCA, Juan: *Principios del proceso penal*, Valencia, Tirant lo blanch, 1997, pages 78 to 79).

«*The introduction of this figure into Argentine criminal law was not, and is not, exempt from controversy. Important voices have been raised against it that openly reject the possibility of the State entering into negotiations with someone who perpetrates an unlawful act, both for moral and constitutional reasons, and because of the delegitimization of the purposes of the State penalty that the agreement causes.*» (SCHIAVO, Nicolás: *La figura del ‘arrepentido’ en la Ley 23.737*, in <http://new.pensamientopenal.com.ar/16102007/doctrina03.pdf)>.

In the case of the collaborating defendant, it is more about opportunism than opportunity (understood as convenience), in the second meaning of this word, "... *which consists of making the most of circumstances to obtain the greatest possible benefit, without regard to principles or convictions*" (REAL ACADEMIA ESPAÑOLA: *Diccionario de la Lengua Española*, Madrid, 21st edition, 1992, page 1049), as it is in this matter to make exceptions to the mandatory nature of exercising criminal action.

«... *The crown witness, called 'pentito' or repentant in Italian procedural legislation, is a shameful, dangerous, and immoral instrument that the state resorts to in its fight against crime. The holder of the right of prosecution, which in our system is the Public Prosecutor's Office, does not notice that fighting against unlawfulness using morally questionable resources comes to be, in a certain way, legitimizing the conduct of someone who places himself outside the law. Evidently, it is an effective and powerful resource* [...] *However, this does not detract from the immoral character of the resource employed. The so-called criterion of opportunity is not such; it is an opportunistic criterion and not one of opportunity. The parties have no way of knowing whether the legal rights being negotiated are of greater or lesser rank than those being violated. The Public Prosecutor's Office handles this dangerous instrument at its will and accounts for it only at the trial itself. Is this not defenselessness? Some years ago, taking advantage of the presence of Eugenio Raúl Zaffaroni in Costa Rica, I spoke with him in the company of the distinguished colleague Lic. Ricardo Hilje. Seizing the moment, I asked the illustrious Argentine academic and magistrate his opinion about this resource that was just emerging as a possibility on the Costa Rican procedural horizon. Zaffaroni answered me what I had always thought: that a state governed by the rule of law cannot fight crime using the same resources that it does, that is, those that violate basic principles such as loyalty. The informer is hateful everywhere, although the result of his informing may be axiologically acceptable...* » (CASTELLON V., Gonzalo: *El testigo de la corona*, in the newspaper La Prensa Libre, Thursday, April 29, 2010).

It is also an exception to the regime of prohibitions referring to the defendant's statement, specifically in Article 96 of the Criminal Procedure Code, since there is no doubt that negotiating the application of this criterion of opportunity can be a way of inducing or determining the defendant so that he "voluntarily" declares what the Public Prosecutor's Office is interested in hearing. The third paragraph of Article 96 of the Criminal Procedure Code ("*The promise of an advantage shall only be admitted when it is specifically provided for in the law*") allows what the rest of the norm prohibits. An advantage not provided for in the law would be prohibited, because it is clearly irregular to offer advantages to a defendant in exchange for his confession or an informing, since obtaining the benefit would be a factor that could condition or determine him to say "freely" what the Public Prosecutor's Office wants to hear him say in exchange for the advantage that it offers him from an evident position of superiority. It is the law, but it entails a normative dissonance. Although an offer authorized by Article 22, subsection b) of the Criminal Procedure Code is made to the defendant, the trial court cannot overlook that the defendant has been truly tempted or manipulated by the advantage offered by the prosecuting party, that if he testifies he does not do so with a will as free and spontaneous as it seems, but conditioned by obtaining an advantage for himself, facing the rigor of the penal system, such that the mere authorization of the law to agree to a criterion of opportunity does not exempt the court from the duty to be particularly careful when establishing the probative value of the statement given by the "collaborating witness" (collaborating defendant, imputado colaborador) (as Judge Camacho Morales warned in his dissenting vote for the resolution of 13:30 hours on September 2, 2012, cfr. Volume XXVIII, folios 13713 back to 13714 back). But if our legislator adopted the institution, it can be supposed that his purpose was to strengthen the *efficiency* of the system (cfr. GONZÁLEZ ÁLVAREZ, Daniel: *El principio de oportunidad en el ejercicio de la acción penal*, in *Ciencias Penales*, Revista de la Asociación de Ciencias Penales de Costa Rica, San José, Year 5, No. 7, July 1993, pages 63 to 69), not to favor impunity:

«*In all these cases, it is a requirement that the act for which prosecution is waived be considerably less serious than those that the defendant helps to investigate or to cease their continuation; otherwise, it would encourage impunity for serious crimes, which would render the application of the principle of opportunity meaningless.*» (TIJERINO PACHECO, José María: *Principio de Oportunidad*, in A.A.V.V.: *Reflexiones sobre el nuevo proceso penal*, San José, Imprenta y Litografía Mundo Gráfico S.A., 1996, page 98).

The head of the Public Prosecutor's Office who authorizes the request is the competent one to assess the "opportunity," convenience, and necessity of applying this criterion (art.

22 CPP). Regarding judicial review of the application of opportunity criteria, the Constitutional Chamber (Sala Constitucional) has ruled that:

"...*the function of bringing charges in publicly prosecutable crimes is a function assigned by Law to the Public Prosecutor's Office (Ministerio Público). Consequently, it is up to the Prosecutor to decide on the advisability of applying or not applying an opportunity criterion* [...] *The judge's authorization excludes carrying out an analysis of the advisability or opportunity of the measure, given that they cannot substitute the decision of the prosecutor, who is responsible for the exercise of the criminal action*..." (Constitutional Chamber, No. 2001-02662 at 15:30 hours on April 4, 2001).

But it is clear that the trial court is the one competent to analyze and assess the evidence produced through this particular opportunity criterion. The Third Chamber (Sala Tercera) has indicated that because the criminal action against the collaborating defendant (imputado colaborador) "...*is suspended, subject to the results of the trial, the statement given by the 'crown' witness in the hearing against the other accused must be made in their capacity as a defendant and with respect for the guarantees that this entails*" (Third Chamber, No. 476 at 10:02 hours on March 16, 2012).

The Constitutional Chamber has also established some criteria to follow regarding the collaborating defendant, and it has done so precisely in relation to this specific case, in ruling No. 2009-12090 at 14:40 hours on July 31, 2009, which concerns an action of unconstitutionality brought by Mr. [Name012] against articles 24, 297 subsection d), and 299 second paragraph of the Criminal Procedure Code (Código Procesal Penal):

"...*the fact that no right of appeal is provided for the resolution approving the application of an opportunity criterion by those who appear as defendants in the same case does not injure due process or the right to defense, <u>given that the testimony given by the person to whom an opportunity criterion has been applied will be assessed by the court, which must substantiate the credibility it grants or denies, in relation to the rest of the evidence, and furthermore, it may be widely questioned by the parties in the debate</u>. Likewise, the defendant has the right to challenge the judgment if they believe that defects have occurred in the reasoning of the decision or in the incorporation or assessment of the evidence*..." "...*the possibility of waiving the exercise of the criminal action is foreseen* [...] *provided that their conduct is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents. <u>This evaluation of reprehensibility refers to culpability, such that the collaborator must deserve a judgment of reproach or lesser culpability than the principal perpetrator for whom they provide the collaboration</u>*..." "...*It is important to mention, as a reference, that the European Court of Human Rights, in a judgment of September 6, 1978, admitted the legitimacy of the crown or repentant witness. Subsequently, the same jurisdictional body determined, according to decisions of September 27, 1990, and November 20, 1989, that <u>its admissibility should only be as a source of circumstantial evidence, meaning that the data or information it provides requires the backing of other means of evidence. It becomes a means of investigation subject to confirmation, direct or indirect, of the data or circumstances it has provided regarding the investigated facts</u>. These requirements do not detract from the collaborator's legitimacy, according to the jurisprudence of the European Court of Human Rights*" "... *from a reading of the challenged article 22 subsection b), it is clearly inferred that the opportunity criterion for collaboration <u>applies to those participants whose actions are considered less reprehensible</u>* [...] *it is also required that the defendant collaborates efficiently with the investigation, provides essential information to prevent the continuation of the crime or the perpetration of others, helps to clarify the investigated fact or other related ones, or provides useful information to prove the participation of other defendants; all this collaboration requires, as the norm provides, that the collaborator's conduct is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents. <u>Reprehensibility has to do with the degree of culpability with which one acted</u>, which cannot be determined a priori, but must necessarily be evaluated in each specific case...*" It is important to note that in this ruling of the Constitutional Chamber, Magistrates Calzada and Jinesta dissented, warning that:

"*In our opinion, 'opportunity criteria' produce the anti-juridical effect of the total or partial waiver of the ius puniendi with respect to some infractions or certain persons who have participated in a presumably criminal act. The unwaivable nature of a primary public power is irreconcilable with any criterion of opportunity or discretion —relative and subjective after all— in its exercise. Moreover, the fundamental charter presupposes a fundamental ethical and moral order, so much so that article 28 of the Constitution prescribes that the principle of autonomy of will has morality as one of its limits. In our opinion, 'opportunity criteria' may be, eventually, reprehensible from a universal moral standpoint and from a minimum ethical-constitutional substratum, inasmuch as they enable the criminal prosecution body to waive public criminal action against certain persons or for certain acts. In another order of ideas, the principle of legality in criminal matters supposes that the People, in whom the original power to legislate resides, delegate it to the Assembly through suffrage (article 105 of the Constitution), so that it may classify certain conducts as anti-juridical and culpable, and the criminal prosecution body, which lacks all democratic legitimacy, is not in a position to dispose, discretionally or conveniently, which conducts and which persons it prosecutes, despite the legislator, by delegation of the people, having previously deemed that they must be prosecuted. In sum, a body that lacks mediate or immediate democratic legitimacy is not in a position to weigh what the public or general interest deems should or should not be prosecuted. It must be taken into consideration that the basic or fundamental directives and policies for investigation, prosecution, and exercise of the criminal action are established, primarily and above all, by the repressive legislation enacted by the Legislative Assembly by virtue of the power delegated to it by the people. In this way, another fundamental principle of the constitutionality parameter embodied in article 129 of the Constitution is contradicted, which prescribes that 'The laws are obligatory' and that 'A law is not abrogated or repealed except by a later one', given that, despite the rule and binding nature of the law and the impossibility of repealing a law for a specific case, with opportunity criteria the law can be disapplied for one or several acts and for specific persons. The preceding argumentation proves that opportunity criteria are incompatible with a correct and due understanding of a Constitutional State of Law, despite the multiple doctrinal, sociological, or criminological arguments that may support their establishment (e.g., that the penal system lacks the capacity to repress all conducts, the economy of resources in prosecution, that there are insignificant conducts —petty crimes— that should not be prosecuted, or that criminal prosecution has traditionally focused on conventional crime, bypassing non-conventional crimes, etc.). All those doctrinal or meta-legal arguments that support opportunity criteria cannot be placed before —due to lacking constitutional support— the constitutional precepts, values, and principles stated. The partial or relative derogation of the principle of legality —inherent to the Constitutional State of Law— through opportunity criteria is of such magnitude that it inevitably requires a constitutional reform that admits it, an extreme not contemplated by our Constitution. Thus, by way of illustration, following a systematic hermeneutics and keeping proportions, article 180, paragraph 3, of the 1949 Constitution admits, in national Public Law, the derogation or displacement of the substantive and budgetary principle of legality by that of necessity, under qualified circumstances 'to satisfy urgent or unforeseen needs in cases of war, internal commotion, or public calamity'. Finally, it is necessary to point out that the legislative body, in the exercise of its legitimate sovereign power, for the achievement of the aims sought by opportunity criteria, has other political alternatives or options, such as decriminalization or descriminalization, the increase of administrative infractions by rigorously demarcating the terrain of Criminal Law and Administrative Sanctioning Law, the introduction of suitable and expedited tools to combat non-conventional crime, etc.*" **b.- Considerations on the analysis and assessment of the statement given by [Name026].** If [Name026] was granted the opportunity criterion for utilitarian purposes, then it is appropriate to judge that decision of the Public Prosecutor's Office by its results or consequences. From this perspective, it is fitting to ask the following questions about the defendant [Name026]:

Did he efficiently collaborate with the investigation of the act attributed to him?; Did he efficiently collaborate in clarifying other crimes related to the one in whose cause the opportunity criterion is being applied to him?; Did he provide essential information to prevent the crime from continuing or others from being perpetrated?

Did he help to clarify other related acts?

Did he provide useful information to prove the participation of other defendants in the investigated acts?

Was the conduct of [Name026] less reprehensible than the acts whose prosecution he supposedly facilitated or whose continuation he prevents?

This Chamber considers that the answer to all these questions is "No," since it is obvious that [Name026] did not even give a reliable statement and that the majority of the court did not critically analyze or assess it, as was required for such a particular and supposedly essential testimony. Let us remember that [Name026] is the only eyewitness to the alleged participation that he attributes to [Name012], which implied the need to have been cautious when analyzing and assessing his statement, as advised by scholars of this discipline who have reflected on this institution since the Enlightenment:

"*Some courts offer impunity to the accomplice of a serious crime who reveals the others. This recourse has its drawbacks* [...] *The drawbacks are that the Nation authorizes betrayal, detestable even among the wicked; because the crimes of courage are always less fatal to a society than those of vileness, since the former is not frequent, and with only a beneficial force to direct it, it will conspire for the public good; but the latter is more common and contagious, and always concentrates within itself. Furthermore, the court reveals its own uncertainty and the weakness of the law, which implores the help of the one who offends it*..." (BECCARIA, Cesare: *Of Crimes and Punishments*, Madrid, Alianza Editorial, 1997, pages 108 to 109).

Also, in classical literature, well-founded objections are found regarding the testimony about another's act given by a defendant who confesses everything or in part in exchange for an advantage, for example:

"*We repeat that whenever the generic accusation of the accomplice is presented as a discharge of the accused who accuses, suspicion about the truthfulness of the latter is legitimate. From this, it follows that this suspicion becomes excessive when impunity has been promised on the condition that the name of the accomplice be revealed, because the impulse to lie is so great that logic refuses to take into account such a revelation of participants, which has the impunity of the one who makes it as its price. But fortunately, that hypothesis of impunity as the price of the revelation has lost much importance, since it has been proven to cause serious harm. The promise of impunity, instead of constituting a restraint against crime, due to the distrust it creates among accomplices, is an incitement to crime, due to the security it gives each one of always having an open path to escape criminal justice.*" The promise of impunity, which is an immoral pact between the law and the offender, besides being a legal error, is an evidentiary error, because, on the one hand, it incites crime and corrupts and disturbs society with the spectacle of the release of an unpunished offender, who is almost always not only the most guilty, but also the most perverse; and on the other hand, it subverts all evidentiary criteria and produces in the consciousness of the accused, and by operation of law, a very powerful impulse toward false revelations</i>» (FRAMARINO DEI MALATESTA, Nicola: <i>Lógica de las pruebas en materia criminal</i>, Volume II, Editorial Temis, S.A., 2002, page 260).

At present, it is worth bringing up the observations of Ferrajoli and of Rivera Beiras regarding the figure of the collaborating witness. The former has warned that in the garantista model, the idea that the end of truth justifies any means is inverted, so that it is solely the nature of the means that guarantees the attainment of the end; from this derives the prohibition of any promise or direct or indirect pressure on the accused to induce them to repentance or to collaboration with the prosecution; and he warns us that:

«<i>All criminal and procedural guarantees</i> [...] <i>are effectively altered by the negotiation between the parties or, worse still, between judge and accused that has as its object the evidence and the penalty: the retributive nexus between penalty and crime, since the penalty and its measure are made to depend on the procedural conduct of the defendant rather than on the gravity of the crime; the principle of strict legality, due to <u>the totally indeterminate and debatable nature of the degree of reliability and relevance of the collaboration provided</u> and, therefore, of the premises for the reduction in penalty; the principle of materiality, given the eminently subjective character of the collaborative attitude or, even worse, of the ‘repentance’ or ‘dissociation’ required of the accused, upon whom, moreover, the accusatory burden of proof is shifted; the principle of contradiction, because of the confusion of roles between the parties and because of the character of monologue that is impressed upon all procedural activity; the guarantees of defense and publicity, because the collaboration of the accused with the prosecution requires a tête-à-tête between investigator and investigated that does not tolerate the presence of third-party outsiders and that, on the contrary, due to the unequal nature of the relationship between the contracting parties, degrades into murky exchanges of trust of the ‘servant and master’ type; the principle, finally, of penal equality, given that only the guilty can collaborate, deal, and profit, and all the more so if they are seriously guilty, while the innocent or those with marginal responsibilities could not do the same and, by knowing nothing of the crime and by providing no accusatory contribution, end up doubly penalized. Legality, jurisdiction, the non-derogability of the action and the trial, and the non-disposability of penal situations ultimately vanish in this unequal negotiation, leaving space for an entirely discretionary power that inevitably leads to arbitrariness</i>» (the underlining is not in the original, FERRAJOLI, Luigi: <i>Derecho y razón Teoría del Garantismo Penal</i>, Editorial Trotta, Madrid, 1995, pages 608 to 609).

For his part, Rivera Beiras warns with utmost clarity and precision of the risk that the figure of the collaborating witness entails for the ascertainment of truth:

«...<i>perhaps this is one of the points that, most forcefully, shows the presence of the </i>political<i> over the </i>legal<i>. So much so is this the case, that clear examples can be found of European legislations that have been—although with diverse legislative techniques—"legalizing" the special, benevolent, and reward-based treatment of the figure of informants/repentant individuals/collaborators with justice, etc.</i>» «<i>And, in truth, I believe it can be stated, without fear of being mistaken or exaggerating, that it has been the </i>regulations<i> on "</i>repentant individuals<i>" that have most forcefully ended up profoundly changing the character of criminal legislation and its guiding principles. Indeed, it was this legislative trend that upended the foundations of a criminal law </i>of the act<i>,</i> of the deed<i>, in favor of those of a criminal law </i>of the author<i>. Why is such a judgment made? Let us look at certain points, essential for piecing together the process I am trying to describe.</i>» «<i>In the first place, it must be pointed out that the </i>repentance<i> of the subject to be rewarded is not, by any means, the </i>spontaneous<i> repentance that has always existed in ordinary criminal legislation. Quite the contrary, it is a </i>calculated<i> repentance. And such calculation is verified on the basis of measuring the benefits—procedural, penological, or penitentiary—that the </i>repentant individual<i> thinks they can obtain.</i>» «<i>Put in much plainer terms: it is a matter of achieving the </i>change of sides<i> of the offender in exchange for a </i>judicial remuneration<i> or one negotiated judicially.</i>» «<i>Likewise, and increasingly, the twisting of the law becomes more evident; it is then a matter of </i>instrumentalizing<i> the accused in order to later be able to use their confession—as privileged evidence—against their former, denounced companions.</i>» «<i>It must also be said, in close relation to the above, that the </i>repentant individual<i> usually—according to the degree of </i>repentance/informing/betrayal<i> they reach—ceases to be an accused and moves into the category of </i>witness<i>. Of course, this is not an </i>impartial<i> witness but a deeply </i>interested<i> one.</i>» «<i>From this point on, it is evident that it will no longer be possible to know when they are telling the truth and when they are beginning to exaggerate, <u>lie, or simply invent in order to achieve the benefits</u>. And this is because their benefits become inversely proportional to the harms of the denounced persons; the rule is simple: the more harm they manage to cause to their former companions, the more personal benefit they will achieve</i>.» «<i>Thus, one reaches one of the most outstanding consequences of this entire system: </i><u>the one who will end up serving less of a sentence is not the one who commits fewer crimes, but the one who informs more</u><i>.</i>» «<i>It seems to me that not much argument is needed, after the notes commented upon, to conclude by affirming that a penal system—both substantive and procedural—inspired by the principles that have been described, constitutes a true weapon of political struggle that has ended up subverting the principles of a criminal law born in the liberal-Enlightenment tradition.</i>» «<i>A concrete and current example of everything being mentioned is constituted by a norm of the Spanish Penal Code, when it provides that: "[…] the Judges and Courts, stating the reasons in the judgment, may impose a penalty one or two degrees lower than that indicated by law for the crime in question, when the subject has voluntarily abandoned their criminal activities and presents themselves to the authorities confessing the acts in which they have participated, and furthermore, actively collaborates with them to prevent the commission of the crime or effectively contributes to obtaining decisive evidence for the identification or capture of other responsible parties or to prevent the action or development of armed bands, organizations, or terrorist groups to which they may have belonged or with which they may have collaborated</i>» (the underlining is supplied, RIVERA BEIRAS, Iñaki: <i>Recorridos y posibles formas de la penalidad</i>, Anthropos Editorial, 2005, pages 117 to 119).

Among the criticisms that our academy makes of the “collaborating accused,” is precisely that of the low reliability of its results:

«<i>The main criticisms address the scant credibility that the Crown witness may have</i>...» «<i>The practice of the Code of 1996 has been unclear; in the first place, the institution fell into disrepute when, in a well-known case, the Crown witness changed their statement several times</i>.» (LLOBET RODRÍGUEZ, Javier: <i>Proceso Penal Comentado</i>, 4th ed., San José, Editorial Jurídica Continental, 2009, pages 122 and 123).

«...<i><u>it has been said that the evidence obtained by this means deserves very little credit, since the case can easily arise of a subject who wants to involve others to safeguard their own situation, seeking to be freed from their criminal responsibility</u>. In the end, the legal benefit that the collaborator can obtain depends on the efficacy of their contributions, so that these can be seriously conditioned by their own interests, not only procedural, but also economic and even related to publicity. But not only that, it is also feasible that the presumed collaborator seeks rather to confuse the authorities in charge of the investigation, providing false data. Consider, for example, the manipulation that several accused could carry out, simply by agreeing to offer a distorted collaboration, falsifying, for example, their information</i>» «<i>For some, when an accused denounces others, affirming that they committed the act together with them or that they intend to incur further crimes, <u>the authorities are obligated to act with the utmost prudence and caution, without discarding that information, but granting it only the value that corresponds to a notitia criminis</u>. If an accused decides to reveal secrets that another would guard jealously, how many reasons can motivate that conduct? For this reason, it has been said, with good reason, that the system should establish all the necessary guarantees to ensure the veracity of the data, confirming the information by other means.</i>» «<i><u>However, in many cases the revelations of the collaborator are easily accepted as authentic indications of criminal responsibility, without the personality of the informant mattering, nor the scant credibility they may deserve, nor the prior contradictory statements they may have given</u>. <u>Although on occasions the collaborating accused does not say everything they know or does not assume all the responsibility that corresponds to them, it can happen that, by an accommodating attitude, their revelations deserve much more credit than any exculpatory version offered by those who end up denounced</u>. In certain cases, this can lead to a lack of depth in police inquiries and, in close relation to that, to a stagnation of investigative techniques.</i>» «<i>In these circumstances, procedural guarantees, the presumption of innocence, and the classic parameters of judicial investigation can be destroyed by the simple word of the collaborating accused</i>» «...<i>It must be taken into account, furthermore, that the prosecution negotiates with subjects who could eventually continue to be part of the criminal organization or be connected to it, so <u>it is feasible that they provide false information, whether with the aim of diverting the investigation, delaying it, or leading it to failure, and may even give rise to an unjust conviction, handed down against an innocent person</u></i>» (the underlining is not in the original, ZUÑIGA MORALES, Ulises: <i>El Testigo de la Corona</i>, in AAVV, Derecho Procesal Penal Costarricense, San José, Asociación de Ciencias Penales de Costa Rica, 2007, pages 594 to 595 and 601).

In the same vein, regarding the “procedural frauds” that the collaborating accused can foster and the problem of their evidentiary value, it is warned that:

«<i>To the list of reproaches is added the risk that the Administration of Justice may be used by ‘false repentant individuals,’ who, with the aim of misleading the inquiries, may compromise the dignity and security of persons who have no connection whatsoever with the crimes</i>» «<i>It seems to be beyond any doubt that a criminal judgment can validly be based on the version provided by a single witness, when the examination of their testimony in the specific case withstands the analysis of the rules of correct human understanding. If this is so, and the statement of a co-accused against another has been admitted as a valid element of proof, it is worth questioning what the concrete reproach is that is made to the figure regarding its evidentiary value. <u>The basic objection consists in emphasizing that it is a statement highly interested in harming the other defendants, and thereby obtaining an advantage in the proceedings brought against them</u></i>» (the underlining is not in the original, RODRIGUEZ CAMPOS, Alexander: <i>El arrepentido y la investigación penal encubierta Aspectos problemáticos de la persecución del crimen organizado</i>, 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 is worth mentioning that Judge Camacho Morales, in his dissenting vote, also explained that in the processing and granting of the opportunity criterion to [Nombre026] there were violations of due process; he even warned of this previously, with abundant reasons, from the time the resolution of 1:30 p.m. on September 2, 2010 was issued interlocutorily (cf. “<i>Se rechazan las protestas por la actividad procesal defectuosa formuladas ante la comparecencia de [Nombre026] al debate sobre la base del criterio de oportunidad</i>”, Volume XXVIII, folios 13676 to 13736), a resolution in which he also drafted a dissenting vote (emphasizing the need to guarantee jurisdictional control over the application of that institution to the co-accused who did not benefit from that opportunity criterion) to which he refers and cites literally in the present (cf. pages 1944 to 1988), adding to what he had said on that occasion that it is clear that information necessary to resolve the request for application of the opportunity criterion was hidden from the criminal judge. Judge Camacho Morales informs us that:

«<i>The Public Prosecutor's Office made a request to the Criminal Judge, hiding information that was decisive for establishing the lesser culpability and the necessary analysis of proportionality in the application of the opportunity criterion. Not mentioned in the request for the opportunity criterion were other conducts that could be criminal and that were confessed by [Nombre026] and that arise from expert report 297-DEF, documentary evidence No. 598, such as “royalties” of $110,207.00 and $29,833.95 received from Cibertec S. A. and Empaques Asépticos S. A. (folio 38). In addition, money that [Nombre026] confessed having received from the hands of [Nombre041] via check No. [Valor035] from account No. [Valor036] of the Banco de San José, belonging to [Nombre041], related to the La Joya electricity generation project, supposedly receiving a total of $56,000.00. This last fact is recorded in the complaint filed by the Technical Defense of [Nombre012] as evidence when introducing defective procedural activity against the opportunity criterion, on an interlocutory basis, a complaint that gave rise to case No. 08-000032-615-PE. In said documentation, there is a request for dismissal of the case where the prosecution lists all the facts denounced against [Nombre026] by the co-accused [Nombre012], admitting that they have been under investigation, but requests the dismissal of the complaint, under the argument that the exercise of criminal action against [Nombre026] was suspended due to the application of an opportunity criterion and therefore the Attorney General has not incurred the crime of dereliction of duty. Based on said request, the complaint was dismissed. However, if the opportunity criterion file is analyzed, it will be easily determined that in the respective requests addressed to the Criminal Judge and in the unfounded resolution that grants the opportunity criterion, none of the facts mentioned supra form part of said opportunity criterion, so that the suspension of the criminal action that occurs as an effect of the application of numeral 22 subsection b) of the Code of Criminal Procedure could not reach said facts, which were not presented to the Criminal Judge so that they could assess, in a comprehensive manner, the situation of [Nombre026], and determine whether the application of the opportunity criterion being requested was proportional, and above all, the lesser culpability of [Nombre026] in view of all the crimes for which the Public Prosecutor's Office had in mind to grant impunity to said co-accused, but which it omitted bringing to the knowledge of the Criminal Judge in the respective request, resulting in the Criminal Judge applying the opportunity criterion only and exclusively in relation to the facts that the request comprised, as they expressly indicated in the resolution, by stating in the “Por Tanto” that </i>“(…) the exercise of the public criminal action is suspended <b>in relation to the facts described in the first considerando of this resolution</b>”<i> (resolution from folios 41 to 89 of the opportunity criterion file. The highlighting was supplied), so that the other facts to which reference has been made, because they were not described in the request for application of the opportunity criterion and therefore also do not form part of the first considerando of the resolution, are and always have been outside the opportunity criterion and regarding them impunity has been granted to [Nombre026], allowing the criminal action to be extinguished by the statute of limitations, a situation that is evidently illegal and that the Public Prosecutor's Office has refused to correct, despite it having been pointed out by the co-accused [Nombre012] in the mentioned complaint and by their Technical Defense in the trial, at the time of introducing defective procedural activity against the opportunity criterion.

With the actions of the Public Prosecutor's Office, impunity has been granted to [Nombre026] through a de facto, rather than de jure, opportunity criterion (criterio de oportunidad), evading the necessary judicial control that must mediate in this regard.</i>» (Judgment, pages 1989 a 1990).

Judge Camacho Morales also informs us that in the negotiation of the opportunity criterion, the possession by [Nombre026] of sums of millions of dollars of allegedly illicit origin was legitimized, for having been supposedly received as gifts (dádivas), disapplying and disregarding the legal provisions that establish that the fate of the proceeds of crime is and must be subject to confiscation (comiso), thus operating a legitimization of capital that allowed [Nombre026] to keep in his possession a significant portion of money and assets acquired as the proceeds of the gifts, an economic benefit that Judge Camacho Morales estimates to be around two million four hundred thousand dollars ($ 2,400,000.oo) (cfr. judgment, pages 1990 a 1991). In this way, Judge Camacho Morales indicates, the statement of [Nombre026] was *determined*:

«*[Nombre026]'s fundamental rights were also violated, and particularly his condition as a person and the dignity inherent to it were ignored. By negotiating an opportunity criterion with him through illegal offers (economic benefit and absence of legal prerequisites for granting the opportunity criterion), he has been instrumentalized, degraded to the condition of an object, and used by the prosecuting body of the State to achieve its unacceptable purposes, in a democratic judging system, of obtaining a conviction by resorting to means proscribed by law, the Political Constitution, and International Human Rights Law. The statement made by [Nombre026] and the formation of the will to do so, was determined in an openly illicit manner (art. 96 of the Code of Criminal Procedure), for which he has been used by the Public Prosecutor's Office to achieve its ends, without considering that at the end of this process, if legality (minority criterion) prevails, [Nombre026] could always be subjected to trial, whereby a false expectation has been created for him and the principle of swift and complete justice has been violated against him*.» «*Thus, the statement of [Nombre026] is illicit evidence and cannot and must not be assessed to support any resolution (art. 181 of the Code of Criminal Procedure)...*» The facts that are claimed to have been accredited in relation to Mr. [Nombre012] are described in Considerando III of the judgment, facts No. 84 a No. 114 (cfr. Judgment, pages 995 a 1007). Facts No. 84 a No. 94 describe the alleged conversation that [Nombre026] and [Nombre012] had on the morning of December 4, 2000, at the latter's home, in which it is stated that [Nombre026] told [Nombre012] about the gift proposal made to him by [Nombre035] and [Nombre015] the day before at the "[...]" restaurant, in exchange for carrying out the necessary actions as director of ICE to promote the migration of TDMA technology to GSM technology, to prevent the bidding process for the four hundred thousand lines from being aborted, and to vote in favor of awarding said bid to the Alcatel company. There it is stated that [Nombre012] approved that [Nombre026] accept the proposal from the Alcatel officials and arranged the way in which the gift would be distributed between the two of them. These facts, according to the majority of the Court duly accredited, are those said to constitute the crime attributed to [Nombre012], but the *only* direct evidence of that fact is the testimony of [Nombre026] (there is no independent element that corroborates the truthfulness of his account). It is important to bring up what Judge Camacho Morales indicates to us in this respect:

«*The specific configuration of the referred facts is based exclusively on the account of [Nombre026], which, as already stated, is illicit evidence and if it were not, it would be insufficient by itself to demonstrate such facts, as resolved by constitutional and cassation jurisprudence. In judgment 12090 of 2009 at 2:40 p.m. on July 31, 2009, the Constitutional Chamber, referring to the legitimacy of the crown witness, cites resolutions of the European Court of Human Rights in which it indicates that the admissibility of the crown witness should be as a circumstantial source of evidence, so that the data or information they provide requires the support of other means of evidence. The Constitutional Chamber expressly indicated:* "It is important to mention as a reference, that the European Court of Human Rights, in a judgment of September 6, 1978, admitted the legitimacy of the crown witness or repentant. Subsequently, the same jurisdictional instance determined, according to decisions of September 27, 1990, and November 20, 1989, **that their admissibility must only be as a source of circumstantial evidence, that is, that the data or information they provide require the support of other means of evidence. It becomes a means of investigation subject to confirmation, direct or indirect, of the data and circumstances that they have provided about the facts under investigation**. These requirements do not detract from the legitimacy of the collaborator, according to the jurisprudence of the European Court of Human Rights." *(The highlighting was supplied). Exactly the above is the position taken by the Third Chamber of the Supreme Court of Justice in judgment 136-2003, when referring to the statement of an accused who testified as a crown witness, denying it value by itself to accredit the narrated facts, expressly indicating the need to have evidence that corroborates their version. In this regard, the Third Chamber said:* "The only element considered by the judge is the statement of the co-accused [Nombre048], who gave the names of two more people as participants in the thefts, and describes the contribution of each one and the places where they negotiated the stolen objects**. However, this version was not corroborated with other elements, except regarding the participation of the "repentant", since objects suitable for the commission of this type of crime, as well as stolen goods, were seized from him in the car. The only thing linking [Nombre049] to the accused acts is the statement of the co-accused, which is insufficient**. [Nombre050] depends on the outcome of this case, for a dismissal to be issued in his."*» «*Given that, as already indicated, the statement of [Nombre026] is illicit evidence, but it is also the only evidence with which the Public Prosecutor's Office intends to accredit the criminal acts attributed to [Nombre012], and even if it were lawful evidence, it would not be sufficient to prove them, given the status of crown witness and the benefit he hopes to achieve with his statement, requiring additional evidence to prove such facts, which is not available, for all of which, the facts subject to comment were not demonstrated with any valid evidence*.» (Judgment, pages 1993 a 1995).

Judge Camacho Morales adds that for these same reasons, the sole testimony of [Nombre026] also proves insufficient to demonstrate the conduct attributed to the co-accused [Nombre018], [Nombre004], [Nombre001], [Nombre027], [Nombre021], [Nombre015], and [Nombre009] (cfr. Judgment, pages 1996 a 1997). For this Chamber, it is reprehensible that the MP chose to apply the opportunity criterion to [Nombre026], as it appears not to have achieved an accurate prognosis of the reprehensibility that could reasonably have been anticipated regarding each of the supposed agents before reaching trial. It has been said that this lack of discrimination can lead to situations as unacceptable as, for example, the perpetrator of a Homicide being favored with impunity in exchange for informing on accomplices through their confession (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 noted that:

«*It is a requisite for the application of this criterion, that the criminal action being dispensed with is considerably less serious than the punishable acts whose prosecution it facilitates*. This is so because, as indicated previously, impunity is not sought with the application of the institute, but rather greater efficiency of the system. *If negotiation were allowed for a person with greater participation or who has committed a more serious crime than the one sought to be prosecuted, there would be no proportion between the punishment imposed and the event that was left unsanctioned.* If the acts are of the same gravity or participation, chance or arbitrariness would determine who would be tried and who would not. *It is for this reason that the application of the criterion was established solely for those cases in which the participation of the "repentant" is less than that of the person to be caught, in the case of the same act, or the less serious crime when it concerns a different one.* In the present matter, the opportunity criterion should not have been applied, since both accused had **identical** participation, in the **same** act. According to the statement of proven facts, there were three persons committing the thefts, dividing the functions in such a way that* [V.Z.] *and* [M.A.] *entered the houses and took the objects, while* [E.Q.] *drove the car in which they moved, waited for them outside the chosen homes, and then they left the location in that car. According to the evidence, they also traveled in the vehicle driven by* [E.Q.] *to sell the stolen objects and shared the profits among everyone. It is evident that the three accused are co-perpetrators in the illicit acts. The selection of one accused to be brought to trial, and another to apply an opportunity criterion, was capricious and gives rise to arbitrariness and insecurity. **The prerequisite that the participation of the "repentant" is considerably less serious than that of the one whom it is sought to prosecute was not fulfilled***» (the underlining is not from the original, Third Chamber, No. 2003-00136 of 9:20 on February 28, 2003).

The defendant [Nombre026] did not maintain a coherent version throughout the process, so much so that the investigative statement (indagatoria) made to Dr. [Nombre012] was done based on the first version that [Nombre026] maintained (according to which he incurred in the receipt of gifts without prior promise for a completed act, without any other action by [Nombre012] than the receipt of gifts related to the money received by [Nombre026] from Alcatel), while the accusation and the debate were based on a different version, about which the defendant was not investigated (according to which he received a corrupting proposal that he accepted and therefore favored Alcatel in exchange for a subsequent gift, with prior participation of [Nombre012]). It is thus that Mr. [Nombre012] was not even formally charged or investigated about the alleged meeting at his home, in which he supposedly determined [Nombre026] to commit a crime, so that—as Attorney Gairaud criticizes—he was never formally charged for the conduct said to constitute the crime of *instigation*. The judgment states that [Nombre012] instigated [Nombre026] and that was not a known fact in the case file at the moment when [Nombre012] declared, but rather eight months later, when [Nombre026] gives his second version of the facts. [Nombre026] himself acknowledges that he changed his initial version in his trial statement, and tries to justify it:

«*That night in the Public Prosecutor's Office I assumed my responsibility and said that the offer had been after the award, it was like self-justifying, I was so confused and disoriented, but it was obvious that this statement would not stand on its own; that was because the Prosecutor's Office said that this could not be so, to justify it, and that was when I clarified things, I said that the offer was not after the award but before*» (Judgment, page 520).

«*Yes, I said in that statement that I received the money or reward from Alcatel after the award at the board of directors' meeting, I think I gave that version on September 30, 2004, I don't remember if I consulted it with my lawyer. What I have is a legal veneer, but I already explained here that the truth is another, I had already indicated that here, what I said here is the truth. I didn't lie, but simply at that moment I tried to cover myself or self-protect, but then I became more precise. Alcatel offered me 1.5% or 2%* [...] *In that statement of September 30, I admitted my responsibility and gave a detailed description of them, in an eagerness to self-justify I indicated that the offer would materialize later, but then I went on clarifying the point...*» (Judgment, pages 543 a 544).

Then he changes his version to confess to alleged aggravated Corruption by Improper Bribery (Cohecho impropio), a statement that precisely would allow him to obtain an abbreviated proceeding (procedimiento abreviado) in May 2005. It is obvious that what he actually did was not "clarify the point" but substantially modify his version, for the benefit signified by an abbreviated proceeding that in the end was not even realized because, through the opportunity criterion, he was granted impunity in exchange for declaring his *new* version of the facts. As the two indicated versions cannot be true at the same time, at least one of them must have been false, so that we can affirm with certainty that he lied at some point to benefit himself, that in this way he obstructed the investigation of the truth, and therefore the trial court should have been more suspicious when analyzing and evaluating his testimony. However, the majority overlooked this reality and trustingly considered that [Nombre026] declared disinterestedly to collaborate with the Administration of Justice. The majority vote, on the one hand, avoids the problem concerning the investigative statement of Mr. [Nombre012] by saying that the defendant had to request to expand his first statement, to refer to these "other" facts, as if it were a burden of the accused to ensure being properly investigated. To pretend that the defendant has the obligation to ascertain what the act of which he is accused is and to know the evidence held against him is Kafkaesque. The formal charging (intimación) is part of due process (S-IV, No. 1739-92), the variation of the facts for which he is being investigated compromises the defendant's right of defense; it corresponds to the Public Prosecutor's Office to investigate the accused again by formally charging him with the new facts attributed to him. On the other hand, the majority sidesteps the lack of coherence of the defendant [Nombre026], evades the difficulty that derives from that evident inconsistency of his, and rather gives it the character of full evidence, assigns it full credibility, a matter of great incidence for what the majority resolved, considering that regarding most of the proven facts there is no other element of evidence that corroborates the sole account of [Nombre026]. There are reasons to reasonably suspect that [Nombre026] was varying his version throughout the process to obtain different procedural benefits (house arrest instead of pretrial detention, the possibility of agreeing to an abbreviated proceeding, finally obtaining an principle of opportunity). It is reasonable to suspect that he sought his impunity at all costs, including declaring against third parties (especially against [Nombre012]). His was an interested statement, therefore the court necessarily had to be more suspicious and rigorously examine whether there were other independent elements of evidence that confirmed or corroborated the account of [Nombre026] in matters of fact of criminal relevance.

[Nombre026] did not have to swear to tell the truth, he declared as a defendant assisted by a defense attorney, refraining from declaring or answering the questions put to him, and even his defense attorney—seated by his side—spoke into his ear before answering, as seen in the audiovisual record of the corresponding hearings of the debate. The majority itself records in its resolution that [Nombre026] refrained from responding to questions formulated by the lawyers for the accused [Nombre012], [Nombre015], and [Nombre021], but the judges say that this does not diminish the credibility of his account, either because they were questioning him about self-incriminating facts (cfr. Judgment, pages 1642 a 1643), a criterion that this Chamber does not accept as valid, because if the prosecuting party has totally dispensed with the criminal prosecution against him, it is assumed that it has been precisely so that he collaborates with the investigation of the real truth. On the other hand, even when [Nombre026] falls into contradictions (which he attributes to "confusions") that the defense points out to demonstrate that he is not reliable, the majority of the court chose to excuse him, as for example on page 1723:

«*[[Nombre026]] mentions that these were dates of emotional confusion for him and that is why he made the mistake of indicating that the delivery was in cash, when the truth is that it was as he stated in the debate, that is, resorting to investment certificates of money belonging to his mother for having suffered the blocking of funds from Alcatel deposited in the Saint Georges Bank. For this panel, the cited explanations are valid according to the rules of logic and common experience due to the various banking movements carried out by [Nombre026] to proceed with the respective deliveries of money to [Nombre012], added to the fact that it has been corroborated, according to his oral statement and documentary evidence, that the described amount was not delivered in cash but through 7 bearer certificates*...» (Judgment, pages 1723 a 1724).

Finally, regarding the substance of his statement, with respect to what [Nombre026] says happened, his statement is not reliable either, because he says he did not accept the offer until [Nombre012] gave his approval, this is so, he explains, because when the proposal was made to him he answered that he alone could not do what they were asking in exchange for the "*reward*" offered, that he could not "*direct the judgment of six fellow members of the board of directors*" because it was "*something very big* [...] *and that required a higher instance than my capabilities*". He says that he assumed he would have to count on [Nombre012]'s promise, that if Mr. [Nombre012] had said no, he "*aborted the situation*" (cfr.

judgment, page 502), it later turns out that neither he nor [Nombre012] had to do <i>anything</i> to direct other members of the board of directors, according to what [Nombre026] himself says:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>The award in favor of Alcatel was unanimous; if any member of the board of directors held a dissenting position, they did not make it public. No one raised an objection. My action to award the tender to Alcatel was to cast my vote; I had no more importance than the rest of the directors, and for that reason, if there was dissent, the interference of the President of the Republic was important, in the event that the rest of the directors had a different direction. I do not know if that eventuality occurred because that corresponds to the President</i>» (judgment, pages 539 a 540).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>I do not know if he</i> [[Nombre012]] <i>did something or did not do something</i>» (sic, judgment, folio 548).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>It is very suspicious that he says he required the approval of [Nombre012] to achieve a result that, in the end, occurred without requiring any "direction of course" from the latter. There is no evidentiary element indicating that [Nombre012] helped in any way for [Nombre026] to fulfill what the corruptors asked of him. All of this allows for reasonable doubt that the alleged participation [Nombre026] attributes to [Nombre012] was real, since it is plausible to suppose that it could well be a false accusation, arranged to simulate the existence of a defendant more reproachable than himself and thus be able to obtain the benefits derived from the criteria of opportunity as a collaborating defendant. One could even suppose that at the moment [Nombre026] attempts to introduce the alleged participation of [Nombre012], the latter's influence was already unnecessary. <b>c.- Conclusion.-</b> As we said before, the defendant [Nombre026] is the sole eyewitness to the alleged form of participation he attributes to [Nombre012] (having instigated or determined him to commit the crime of Aggravated Corruption in the modality of Improper Bribery) and his statement is the only direct evidence of that alleged fact which constitutes nothing less than the <i>core</i> of the accusation, a circumstance that underscores the need to have been cautious when analyzing and assessing the credibility of his declaration, which —being that of a collaborating witness— required confirmation or corroboration by independent evidentiary elements, not on secondary circumstances, but regarding the essential elements of his statement, a condition prescribed by constitutional jurisprudence itself that was not fulfilled in this matter. The sole circumstance that the alleged protagonists of the fact —[Nombre035], [Nombre015], [Nombre026], and [Nombre012]— were in Costa Rica on December 3, 2000 (according to the study of their migratory movements, expense settlements, and travel itineraries, conducted by the majority of the trial court in the judgment, cf. pages 1685 a 1690, a section titled "<i>Verification of [Nombre026]'s statements regarding the meeting in [...] and at the house of the accused [Nombre012]</i>"), which was the day on which [Nombre026] says he spoke alone with [Nombre012] at his house, is not proof that corroborates that [Nombre012] "approved" [Nombre026]'s acceptance of the proposal from Alcatel officials; it is an indication so ambiguous or equivocal that, by itself, it could simply be a coincidence. Nor could the alleged fact that circumstances made it urgent for [Nombre026] to do what his corruptors asked of him (cf. Judgment, pages 1691 a 1693) be considered an indication that [Nombre026] told the truth by 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 would also allow corroboration of [Nombre012]'s defense, who explains that its cause is a personal loan that [Nombre026] made to him and that he accepted because he considered the former's fortune to be legitimate. The absence of objective elements that corroborate [Nombre026]'s statement, regarding the approval and indications he says he received from [Nombre012], is patent. The majority of the trial court minimized the fact that the temptation to obtain impunity for one or more of his own acts could have determined the accused [Nombre026] to falsely incriminate other persons as participants; that his interest could have been sufficiently great to motivate him to deceive the Public Prosecutor's Office and the judges with lies, even slandering an innocent person, falsely pointing to them as a co-perpetrator or participant (accomplice or instigator), if in that way he could minimize or evade his personal responsibility. The suspicion of mendacity on the part of the collaborating defendant regarding the acts of another, the reason for his discredit, is a common theme in doctrine, and all the citations included in this section are to illustrate to the reader why the collaborating defendant is considered not to be a suitable witness (for lacking the will to tell the truth and rather having the will to deceive). The very nature of the crimes attributed to [Nombre026] is an objective factor that allows one to reasonably suspect him, for if it is precisely affirmed that he has deliberately breached the duties of the public function entrusted to him, reducing it to a means to act corruptly and enrich himself, one can suppose that he lacks the moral sense implied by sincere repentance, especially when other objective factors concur, such as the high prison sentences that could be imposed on him, the magnitude of the economic damage caused, which together could motivate him to be interested in denouncing or even slandering third parties if he thereby mitigates the rigors of the penal system or obtains a procedural advantage as appreciable as impunity; plus the possibility of conserving through this route a large part of the money and assets acquired through the gifts received. And if to the foregoing it is added that [Nombre026] has incurred contradictions, that he has been substantially modifying his version of the facts at his convenience (which, as to its substance, is also not reliable), it will be understood why this chamber considers him unworthy of the credibility granted to him by the majority of the trial court. [Nombre026] did not act or declare in a sincere and disinterested manner, nor "...<i>so that situations like his might serve as social reflection</i>" (Judgment, pages 1632 a 1633). The majority of the trial court considered that "<i>his statements are totally credible and disinterested</i>" (Judgment, page 1642); this assumption of the judges is not secured by any objective element. On the contrary, the process of change evidenced in his version of the facts is an objective factor that allows one to reasonably suppose that he acted in a biased or selfish manner, motivated by his own interest or convenience. <b><u>B) Extinction of the criminal action (statute of limitations).</u> </b>In this matter, there was an erroneous application of the rules referring to the regime of the statute of limitations for the criminal action. The statute of limitations is one of the causes for extinction of the criminal action (article 30, subsection e of the CPP) and it is worth recalling that the Constitutional Chamber has referred to the nature of the institution of the statute of limitations in the following terms:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>This Chamber has indicated on multiple occasions that the statute of limitations for the criminal action constitutes a procedural sanction for the inertia of the Administration of Justice, whose immediate objective is to guarantee legal certainty, both for the subjects involved in the case and for the community in general</i>» (Constitutional Chamber, No. 856-2001 of 3:18 p.m. on January 31, 2001).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>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) (Law No. 8422 of October 6, 2004, effective upon its publication in La Gaceta No. 212 of October 29, 2004), reformed the statute of limitations regime for the criminal action for crimes against the duties of public office, in the following terms:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Article 62.-<b>Statute of limitations for criminal liability</b>. The criminal action regarding crimes against the duties of public office and those provided for in this Law shall be subject to the statute of limitations in the manner established by applicable legislation; however, the following rules shall govern:</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>a) Once the statute of limitations has been interrupted, the time limits set forth in Article 31 of the Code of Criminal Procedure shall run again for a new period, without any reduction</i>.»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>b) In addition to the grounds provided for in Article 33 of the Code of Criminal Procedure, the criminal action may be interrupted by the declaration of illegality of the administrative function, whether active or omissive, or by the annulment of administrative acts and contracts related to the corresponding crime, whether the ruling is issued through judicial or administrative channels</i>.»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>It is immediately obvious that subsection a) of Article 62 of Law No. 8422 introduced a significant exception to what is provided in the first paragraph of Article 33 of the Code of Criminal Procedure (reformed by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2001) as the legal effect of the interruption of the statute of limitations period:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Once the proceeding has begun, the time limits provided in the article just before the last shall be reduced by half for calculation purposes, in order to suspend or interrupt the statute of limitations</i>…»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>It has been discussed throughout the process whether subsection a) of Article 62 of Law No. 8422 is applicable to this matter, specifically whether, once the statute of limitations has been interrupted, the time limit set forth in Article 31 of the CPP runs again for a new period, <i>with reduction or</i> <i>without any reduction</i>. This is a problem of the application of law over time, which is resolved by the direct application of two rules of our Political Constitution, namely, Articles 34 and 129, which read as follows:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«Article 34.- No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations.</span></i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Article 129.- Laws are binding and take effect from the day they designate; in the absence of this requirement, ten days after their publication in the Official Gazette.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>No one may claim ignorance of the law except in cases authorized by the law itself.</i>»<br> «<i>The waiver of laws in general, or the special waiver of those of public interest, has no effect.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Acts and agreements contrary to prohibitive laws shall be null, unless the same laws provide otherwise.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>A law is not abrogated or repealed except by a subsequent one; against its observance, disuse, custom, or practice to the contrary cannot be alleged. By way of referendum, the people may abrogate or repeal it, in accordance with Article 105 of this Constitution.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>(This last paragraph as reformed by Article 1, subsection d) of Law 8281 of May 28, 2002, published in La Gaceta No. 118 of June 20, 2002).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>In accordance with these rules, Article 62 of Law No. 8422 cannot be given retroactive effect to the detriment of the defendant, and it must be considered that it is binding and takes effect from the day that law designates, which is that of its publication, occurring on October 29, 2004. By that date, the interruption of the statute of limitations period had already occurred in the case of Dr. [Nombre012], which was the first formal accusation (imputación formal) of the facts (according to Article 33, subsection a of the Code of Criminal Procedure), for which reason the statute of limitations period was reduced by half and began to run again from October 15, 2004 (the day on which the accused's preliminary statement was taken), because that is the effect provided for in the law in force at the time of the interrupting event. The initial statute of limitations period for the criminal action, in the case of Dr. [Nombre012], is five years (according to the relationship of Articles 31 and 32 of the Code of Criminal Procedure; 46, 74, 340, and 342 of the Penal Code, since the maximum term of the penalty is five years, given that he is accused of "Instigation to the crime of Aggravated Corruption in the modality of Improper Bribery"). Once the proceeding began, that period is reduced by half for calculation purposes for the purpose of suspending or interrupting the statute of limitations, and it was interrupted by the preliminary statement of October 15, 2004 (cf. Volume II, folios 552 a 558), giving rise to a new reduced-by-half period (that is, two years and six months) beginning to run, which elapsed without any cause for suspension of the criminal action and which was completed on April 15, 2007. The next interrupting act provided for in the law was the resolution convening the preliminary hearing for the first time (Article 33, subsection c of the CPP), an event that did not occur until September 10, 2007 (by resolution of 1:30 p.m. on September 10, 2007, cf. Volume XX, folios 8452 a 8453), which is why the extinction of the criminal action due to statute of limitations did indeed occur in the case of Dr. [Nombre012]. Now, this chamber does not overlook that the final paragraph of Article 376 of the Code of Criminal Procedure indicates that:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>When the application of the complex proceeding is ordered during the preparatory or intermediate phases, the reduction by half of the statute of limitations term, provided for in Article 33 of this Code, shall not apply</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>(As added by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2001).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>However, it is not enough that the resolution ordering that the matter is one of complex processing is issued during the preparatory or intermediate phases for the reduction by half of the statute of limitations term not to apply, for it is evident that it cannot be applied with retroactive effect to cases in which a ground for interruption has already operated that —for the benefit of the defendant— reduced the time limit by half, as happened in this matter, since the resolution ordering that it is of complex processing was not issued until March 3, 2006 (by resolution of 3:00 p.m. on March 3, 2006, cf. Volume XVII, folios 7506 a 7566) and became confirmed through vote No. 403-06 of 1:30 p.m. on June 23, 2006, cf. Volume XVII, folios 7703 a 7707), because the issuance of that resolution cannot revoke or annul the legal effect that the law itself assigns to an interrupting act already completed. We must bear in mind that the rule is that resolutions are not executed during the period for appeal and while the appeal is being processed, unless there is a legal provision to the contrary (Article 444 CPP). The second paragraph of Article 379 of the CPP emphasizes that:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>The Courts shall especially ensure that the application of the special rules</i> [of the proceeding for matters of complex processing] <i>does not distort the principles and guarantees provided for in the Constitution, in International or Community Law in force in Costa Rica, and the law.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>If the legal effect provided for in the final paragraph of Article 376 of the CPP is retroactively attributed to the resolution ordering that the matter be one of complex processing (having been issued during the preparatory or intermediate phases), the cited constitutional rules governing the application of law over time and the very principle of legality provided for in Article 1 of the CPP would be infringed, unjustly giving the Public Prosecutor's Office —and the court itself— the opportunity to circumvent that procedural sanction which is the statute of limitations for the criminal action.</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>Furthermore, there are Costa Rican legal works that analyze the scope of the final paragraph of Article 376; it is the academic opinion of two recognized jurists (both former substitute magistrates of the Third Chamber, former judges of the Criminal Cassation Court, and professors at the Faculty of Law of the University of Costa Rica) that were brought to the court's attention by the defense attorneys, specifically the following texts by Licenciada Rosario Fernández Vindas and Dr. Javier Llobet Rodríguez. The former explains:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i><u>In accordance with this, we would have that if the process is declared one of complex processing after the ‘first formal accusation of the facts against the accused in crimes of public action,’</u> an act which, according to numeral 33 subsection a) of the C.P.P., entails the interruption of the statute of limitations for the criminal action, for a period reduced by half, <u>this reduction must be applied, because at that moment the process would not be of complex processing but simple</u>. In summary, it is not appropriate to give retroactive character to the referred declaration of complex, for the purposes of the exception established regarding the statute of limitations for the criminal action, as this is connected to the performance of certain acts, which ultimately is what influences whether the reduction of time to be considered for the criminal action to prescribe is applied or not applied, so that if the interrupting act of the statute of limitations for the criminal action occurs under the validity of the declaration of complex processing of the process, issued in the preparatory or intermediate stages, that reduction does not operate, and the full term must be counted from that point; <u>on the contrary, if the act that interrupts that statute of limitations occurred when the complex processing of the case had not been ordered, that is, when the process was conducted according to the general, simple procedure, the reduced statute of limitations period must be applied</u>, which would be maintained as long as no other act occurs that has the virtue of interrupting that statute of limitations, which, if produced already under the authorization of complex processing, and, therefore, under the exception situation, would mean that the period of interruption of the statute of limitations for the criminal action must be counted fully (not reduced by half) from that specific act</i>» (underlining supplied, FERNÁNDEZ VINDAS, Rosario: <i>Procedimiento para asuntos de tramitación compleja</i>, in A.A.V.V., Derecho Procesal Penal Costarricense, Tomo II, Asociación de Ciencias Penales de Costa Rica, 1ª ed., San José, 2007, pp.

923 to 924).

For its part, regarding the third paragraph of article 376 of the CPP, Dr. Llobet Rodríguez comments the following:

«*This paragraph was introduced in the reform of Law 8146 of November 30, 2001. The correct approach is that the lack of reduction of the term cannot be applied retroactively, so that when a cause for interruption of the statute of limitations (prescripción) occurred before the declaration of complex processing (tramitación compleja), the term that continues to run is reduced by half. In that scenario, when a new cause for interruption of the statute of limitations occurs after the declaration of complex processing, then in that case the provision that the statute of limitations term is not reduced by half does operate, so that the term that runs from this interruption is complete (on this see: Cf. Fernández Vindas. Procedimiento..., pp. 923-924)*» (the underlining is supplied, LLOBET RODRÍGUEZ, Javier: *Proceso Penal Comentado*, 4th ed., San José, Editorial Jurídica Continental, 2009, p. 567).

However, for the trial court, the declaration of complex processing does have, from the moment it became final (June 23, 2006), the effect provided in the final paragraph of article 376, that the reduction of the statute of limitations term by half, provided in article 33, does not apply; it so resolved -unanimously- in its resolution of 8:00 a.m. on May 14, 2010 (cf. Volume XXVII, folios 13352 to 13408 verso). In said resolution, the following is affirmed:

«*The last paragraph of numeral 376 of the Code of Criminal Procedure was included through a reform operated by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2011, therefore it is and has been a current norm since several years before this process began, which dates from late 2004, and before the defendants gave their respective statements, which were all given starting in October 2004. While it is true that in principle the reduction of the statute of limitations term by half operated at the time the first act interrupting the statute of limitations occurred (statement of the defendants, under the terms of numeral 33 subsection a) of the Code of Criminal Procedure), at which time the process was being processed as ordinary (ordinario), the truth is that the defendants have been aware since that very moment and since the cited procedural reform was published, in principle, that said reduction could become ineffective if the process came to be processed as complex, since numeral 376 so established. So that, the validity of the reducing effect of the statute of limitations term was always subject to the process continuing to be processed as ordinary and that it would be lost if the rules of complex processing were applied, except, of course, that the statute of limitations term had been completed before said event, because in such a case, all the circumstances that would extinguish the criminal action by statute of limitations would have been configured, according to the rules of ordinary procedure, and it should be declared as such, insofar as the legal situation of the defendant became fully consolidated, without the application of complex processing being able to reverse said state of affairs, regarding which the subsequent resolution that recognizes it has declaratory and not constitutive effects*.» «*Thus, the elimination of the reducing effect by half, of the statute of limitations term in those cases whose running statute of limitations term had not been completed at the time the declaration of complex processing became final, does not constitute any retroactive application of numeral 376 of the Code of Criminal Procedure, nor of the judicial resolution that applies it, nor an infringement of the principle of legal certainty, because the defendants, from the beginning of the process, knew what to expect in that regard*» (Volume XXVII, folio 13364).

This reasoning contravenes the cited constitutional norms; its conclusion is fallacious, since the mere validity of the final paragraph of article 376, since it was added by Law No. 8146 in 2001, does not imply that the defendants could foresee -much less that they had to accept or "expect"- that the court would give a retroactive interpretation and application to that norm to "reverse" the effect of an interrupting act completed before the resolution that ordered the matter to be of complex processing was issued. If the trial court itself admits that the statute of limitations of the criminal action "is a sanction for inertia in the processing and judging" (cf. Judgment, folio 788), it is incomprehensible how it opts for an interpretation that circumvents the meaning of that cause for extinction of the criminal action, giving the accuser and the court itself the possibility of "reversing" that effect so that the criminal action revives, so to speak, and by that means elude the procedural sanction.

However, it is with that criterion that in that resolution of May 14, 2010, the case of each of the defendants was analyzed, resolving the following:

«*Unanimously, the exceptions of statute of limitations (prescripción) filed in favor of the accused [Name004]; [Name001]; [Name007], [Name009], [Name018], [Name015], and [Name021] are rejected. The exceptions of statute of limitations filed in favor of [Name024] and [Name012] are reserved for the time of the judgment.*» (Volume XXVII, folio 13407 front and back).

Upon issuing the judgment, the court takes up the matter again in Considering II of the judgment, section A), which it titles "Exception of statute of limitations of the criminal action in favor of the defendants [Name007], [Name021], [Name024], and [Name012]" and resolves with the same criterion (although this time by a majority of votes, since Judge Camacho Morales dissented on this point), reiterating that it is not a retroactive application of the law, but rather "the immediate validity of a procedural stipulation in a pending criminal case" yet to be resolved, making a convoluted argument that the principle of non-retroactivity (irretroactividad) only applies to substantive criminal law, not to procedural norms or institutions, such as the statute of limitations (cf. judgment, pages 786 to 800), an argument that in any case -for this chamber- does not justify or authorize ignoring the legal effect (immediate, one might say) that the preliminary statement (indagatoria) produced according to the legislation in force at the time that interrupting act occurred. Judge Camacho Morales, as previously stated, dissented on this issue, modifying the criterion he had previously shared with his colleagues in the resolution of May 14, 2010 (cf. dissenting vote, judgment, pages 1997 to 2012) and relies on case law that is pertinent to mention. In the first place, he cites the Constitutional Chamber, according to which:

«*Since the process is a sequence of singular acts previously regulated by law, the new legislation can perfectly govern the acts that are carried out after its validity, and the previous law governs the acts carried out under its formal validity, prior to its repeal, so that each act is valued according to the law in force at the time of its performance*» (Constitutional Chamber, No. 4397-99 of 4:06 p.m. on June 8, 1999).

He also mentions a judgment of the Criminal Cassation Court, which properly refers to the application of article 62 of Law No. 8422, and states:

«*Such a norm is effective only from its entry into force for cases in which any of the interrupting acts that the procedural regulations provide for occurs and provided that the term had not already been reduced previously as was provided, since the proceedings are governed by the procedural law that is in force at the time they occur and not by those that had already occurred. In other words, the entirety of the statute of limitations term could not be re-established based on a norm that was not yet in force at the time when, according to the legislation that did govern, a cause with a reducing effect occurred*» (Criminal Cassation Court, No. 2006-0132 of 10:30 a.m. on February 23, 2006).

In accordance with everything set forth in this section, this chamber considers that the trial court erroneously applied the rules concerning the statute of limitations of the criminal action, since in this case the extinction of the criminal action in favor of Dr. [Name012] did operate. The undersigned of this judgment consider that the Public Prosecutor's Office belatedly requested the application of the special rules provided for the so-called "Procedure for matters of complex processing" provided in articles 376 to 379 CPP; if it had requested them in a timely manner, it could have prevented the statute of limitations term from being reduced by half. This is another detail that, together with the way in which the opportunity criterion (criterio de oportunidad) was granted to [Name026], denotes the deficient management of the criminal action that existed in this case by the Public Prosecutor's Office. For all the indicated reasons, the appeal is granted, and the criminal action is declared extinguished because the statute of limitations has operated. The nullity of documentary evidence No. 588 and all the evidentiary elements that depend directly on it is declared. The criminal conviction judgment issued against Mr. [Name012] is annulled and in its place he is directly acquitted of all penalty and responsibility, since due to the nullity of the essential evidence and the statute of limitations it is impossible to order the reinstatement of the trial or the resolution regarding the criminal action, and therefore it must be resolved directly (article 465 third paragraph of the CPP) on the basis that his guilt was not demonstrated by a final judgment (sentencia firme), in accordance with article 39 of the Political Constitution. The appealed judgment remains intact insofar as it acquitted him for four crimes of Illicit Enrichment. Regarding the civil aspect of the judgment, reference must be made to what will be stated in considering VI, in which the appeal filed by Lic. Cristian Arguedas Arguedas on behalf of Dr. [Name012] is resolved. Given the way it has been resolved, it is unnecessary to rule on the other claims that the complainant raises in his appeal, since his corresponding claims have been addressed.

**III.- APPEAL OF LIC. RAFAEL ENRIQUE GAIRAUD SALAZAR.-** Lic. Gairaud Salazar, defense attorney for Mr. [Name012], has expressed his disagreement with the judgment through various writings, the first of which is an "appeal" (apelación) that he filed on June 2, 2011 (cf. Volume XXXV, folios 16894 to 16905). The second is a "cassation" (casación) appeal that he filed on August 4, 2011 (cf. Volume XXXVII, folios 17840 to 17907). The third is an "appeal of the judgment" (cf. folios 172768 to 172837), by means of which Lic. Gairaud Salazar adapts his previous claims to an appeal of a criminal judgment, in accordance with Transitorio III of Law No. 8837 of May 3, 2010 ("*Creation of the appeal of the judgment, other reforms to the challenge regime and implementation of new rules of orality in the criminal process*"), requesting to include that first appeal he initially filed. He warns that in the majority vote of judges Rosaura García Aguilar and Ileana Méndez Sandí (Judge Jorge Camacho Morales dissented) there are evident errors in the determination of the facts, in the incorporation and valuation of the evidence, the reasoning is contrary to due process and the penalty that was imposed on his client is disproportionate and contrary to law, because the accredited conduct is atypical of the crime of Aggravated Corruption (Corrupción agravada) he is charged with. He accuses the non-observance of articles 22, 142, 175, 178, 184, 204, 361, 363 subsection b), and 369 subsections c), d), and j) of the Code of Criminal Procedure; 62 of the Law against corruption and illicit enrichment; of the Universal Declaration of Human Rights and the American Convention on Human Rights ("Pact of San José"); and of articles 47, 71, 340, and 342 of the Penal Code. He requests that the judgment be declared ineffective and invalid and that a remand be ordered for a new proceeding, or that the acquittal of [Name012] be directly issued, for the following reasons. **A)** Lack of reasoning and violation of sound rational criticism (sana crítica racional). The majority did not provide reasons for their decision. Nor did they explain the value assigned to a large part of the evidence, which was not even analyzed, but simply mentioned by the resolution, despite the express request of the defense to do so. The majority gave the value of full proof (plena prueba) to the statement of the cooperating defendant [Name026], omitting to consider that his word was not corroborated by any other means of evidence. Nor is it appreciated that, according to [Name026]'s own word -in the sense that he initially accepted the corruption proposal raised in the [...] restaurant-, it is evident to deduce that he was *determined* (determinado) to commit a crime from the very moment he accepted the proposal, long before the alleged meeting with [Name012], and that what he supposedly required from the latter was to help him in case "the matter got complicated", something that never occurred, according to what [Name026] tells us. Since [Name026] had accepted the offer of a bribe (dádiva), it is evident then that [Name026] was already *determined* before supposedly speaking with [Name012], so it is not possible to consider the latter as *instigator* (instigador) of anything. The majority accepts everything [Name026] declares as true and does not even specify in its totality the circumstances of mode, time, and place in which the crime is supposedly consummated, what the alleged help from [Name012] would consist of. It omits resolving the questions that the defense raised regarding the application of the opportunity criterion in favor of [Name026], alleging lack of competence, which is not only illegal but a resignation of the competencies of the appealed authority, given that the court is obliged to resolve all the debated issues. [Name026] could not benefit from said opportunity criterion since his *reproachability* (reprochabilidad) is equal to or greater than that attributed to his client: "...*this is evidenced* -says the complainant- *when in the analysis of the civil action the Court itself, unanimously, points out the impossibility of establishing a single joint liability (solidaridad) among the supposed participants, pointing out independent chains of responsibility, [Name026] appearing in two of them, while my client in only one, this to derive from the judgment itself the greater reproachability of [Name026], not counting that [Name026] is designated as the MAIN AUTHOR (AUTOR PRINCIPAL) and my client a mere participant, that [Name026] had absolute CONTROL OF THE ACT (DOMINIO DEL HECHO) and my client did not, that [Name026] committed many more crimes than the one related to the contracting of the 400 thousand cell phone lines, which evidences that it is clear and transparent that [Name026] was not susceptible to benefiting from the immunity agreed upon by the opportunity criterion since he does not have a lesser reproachability than my client, none of this was addressed by the Court in its majority composition, since it illegally breached its duty as controller of the legality of the acts of the debate and refused to address the appropriateness or not of the institute, as well as that [Name026]'s declaration was invalid...*" Likewise, an erroneous application of article 62 of the Law against corruption and illicit enrichment is made, approved long after Mr. [Name012] ceased being a public official and therefore was not retroactively applicable to him, as the majority that imposed a conviction in this process illegally did, contradicting a prior interlocutory resolution that they themselves had issued, pointing out that for the case of [Name012] the only thing that had to be done was the precise determination of the applicable criminal type. He also reproaches the rejection of the defense's argument regarding the facts for which [Name012] was questioned (indagado): "*The court does not analyze the content of the defense's protest that pointed out that Mr. [Name012] was questioned based on the initial statement of [Name026], something he himself acknowledges in the debate, in which he alleged in his favor having incurred in the receipt of bribes for a completed act, while the accusation and the debate concerned a supposed act of Aggravated Corruption, evidently these are absolutely diverse facts, some for which our client was questioned and others for which he is judged, violating the principles of inviolability of the defense, due process and notification, the majority vote evades the problem with an absurdity that the defendant could expand his statement on these other or new facts, which I repeat is absurd since the burden of the accusation corresponds to the accusing body, not the defense, so the problem is not resolved and the unquestionable fact that the former president was not questioned for the facts for which he was judged persists. In his first statement, [Name026] never says that he received a corruption proposal, that he accepted it, and that he therefore favored ALCATEL, for a later bribe, as his initial statement is, our client is questioned, but later he is judged for a fact that [Name026] related later and for which my client WAS NEVER QUESTIONED...*", which invalidates the entire process. The evidence allows for sustaining the non-existence of an illicit action by [Name012], but the court, in an absurd and illogical manner, assigns the spurious version of [Name026] the character of full proof and gives it full credibility. Regarding the penalty imposed, the absence of reasoning in the majority vote is evident; it is absurd to impose the maximum penalty on a mere participant when the main author is granted absolute impunity. As evidence, he requests a) the videos of the debate held, to accredit the real version of [Name026] at trial and the acceptance of the moment of consummation of the crime; b) That a statement be received from the convicted defendant [Name027] so that he refers to the existence or not of a corrupt proposal from Alcatel (cf. appeal in Volume XXXV, folios 16894 to 16905). **B)** Violation of due process in the determination of the facts. If the defendant with the opportunity criterion, [Name026], acknowledges that he "accepted in principle" the proposal made to him by Alcatel officials (proven fact 88), the crime was consummated, and the alleged instigation (instigación) attributed to [Name012] at a later time is not possible. The proven fact, in any case, cannot be considered accredited by the sole word of the cooperating defendant [Name026]. If the court had doubts about the meaning of the phrase "in principle", it should have opted for the interpretation most favorable to the defendant, by application of the principle *in dubio pro reo* (cf. appeal, Volume XXXIX, folios 172770 to 172772). **C)** Violation of due process in the incorporation and valuation of the evidence. This is so because the statement of [Name026] is taken as a means of proof and not as a means to obtain proof; by incorporating it, it is given the value of full proof and on his sole word, facts of relevance are considered accredited, such as the supposed meeting and the supposed acceptance attributed to [Name012] (cf. appeal, folios 172772 to 172773). **D)** Violation of due process in the setting of the penalty. The majority confirms the impunity of [Name026] and instead imposes the maximum penalty on [Name012] for conduct that is not even constitutive of the crime of instigation, but even if it is considered criminal, it is evident that it constituted a minimal participation, so the penalty does not reflect the criteria of proportionality and reasonableness established in our law, for which reason he requests it be reduced to the minimum and benefit of conditional execution of the penalty (ejecución condicional de la pena) be granted (cf.

appeal, folios 172773 to 172774). **E)** Lack of substantiation of the sentence handed down by the majority; proven facts No. 71 to 75 have no proof other than the mere word of the collaborating accused [Nombre026], which was not corroborated or validated by any lawful means of proof obtained through him (as a "source of proof"). The lady judges do not explain how [Nombre012] "requested" and then "ordered" [Nombre026] to manage payments with Alcatel. In the case of the co-defendant [Nombre018], there are several supposedly circumstantial elements that corroborate [Nombre026]'s statement about his participation, but the same is not true regarding [Nombre012], as no reference is made to any element of proof that directly or indirectly corroborates what [Nombre026] says. He testified as an accused, enjoying all the rights and guarantees of that condition, being assisted by a defense attorney and allowing him to abstain from testifying in response to the questions asked of him, even having his defense attorney whisper the answers in his ear and he simply repeated them, something which in any legal model is absurd, because the defense attorney cannot answer for the accused (requests that the video of [Nombre026]'s statement during cross-examination by the defense be reviewed). It is clear that [Nombre026] sought his impunity at all costs, testifying against third parties, so his was an interested statement; therefore, other means of proof were necessarily required to support his word. [Nombre026] changed his version from September 31, 2004, when he confessed to an alleged receipt of gifts, as he himself points out in his trial statement transcribed in the sentence when he states: "*Yes, I did say in that statement that I received the money or bonus from Alcatel after the award by the board of directors, I believe I gave that version on September 30, 2004, I don't remember if I consulted my lawyer about it. What I have is a legal veneer, but I have already explained here that the truth is another, I had already indicated that here, what I said here is what is true. I did not lie, but rather I simply tried to cover myself up or self-protect at that time, but later I became more precise. Alcatel offered me 1.5% or 2%* [...] *In that statement of September 30, I admitted my responsibility and gave a detailed description of them, in an eagerness to self-justify I indicated that the offer would materialize later, but then I went on to clarify the point...*" [Sentence, pages 543 to 544], which he then changes to confess to an alleged Aggravated Corruption by Improper Bribery, a statement that is precisely given to grant him an expedited procedure, with only four years of custodial sentence, when the prevailing jurisprudence was based on the principle according to which "house arrest" did count towards the sentence, such that [Nombre026] would have served half the sentence and could request the application of the benefit of Article 55 of the Penal Code, at the moment he provides his second version of the facts; instead, said house arrest, strangely, when no other accused was subject to precautionary measures limiting their freedom of movement, was maintained for the collaborating accused until the moment the possible sentence to be imposed, according to that jurisprudence now totally discredited by the Third Chamber, would have been completely served. [Nombre026] obtains the application of the opportunity criterion in his favor by virtue of that *new* statement, thereby obtaining impunity not only for the crime that the Public Prosecutor's Office links to [Nombre012], but for seven or eight more crimes, some related to the company Alcatel itself for money received as a product of corruption [cites the statement of the expert from the OIJ, [Nombre036], who declares that [Nombre026] received money before and after the four hundred thousand lines, without it having been established that he required external support to receive that money], as stated by the Public Prosecutor's Office during the process, only to later retract, but at a time when all these crimes are time-barred or in the process of becoming so. [Nombre026] did not supply any independent means of proof to support his word; it is not true that from his first statement he showed a clear purpose of collaborating with the Administration of Justice, because the truth is that in one of his two versions he lied because they were opposed to each other. In the first version, he says that Alcatel officials contacted him to offer him a gift after the award of the four hundred thousand lines; in his second version, he says they contacted him before the award: "*How can one say*," questions Attorney Gairaud Salazar, "*that [Nombre026] collaborated with the Justice system from the beginning, if he would later declare, to obtain the benefit of the expedited procedure or the opportunity criterion, that he was contacted before the award and offered the gift, at a time when, while enjoying house arrest, he was first offered an expedited procedure with a meager penalty (while my client was given the maximum penalty as an alleged instigator), and then an opportunity criterion that grants him ABSOLUTE IMPUNITY, when identified by the Public Prosecutor's Office in their closing arguments as the DIRECT PERPETRATOR WITH FULL CONTROL OF THE ACT. In this sense, we must say that if both versions are diametrically different, in one of them [Nombre026] lies. If in the first one, his interest was not to collaborate with the Administration of Justice, but to hinder it, obstruct it, and if in the second, he equally lies in an interested manner, to obtain a benefit, and thus the questioning, supposedly excluded by the majority judges, that his interests in testifying are spurious is fully corroborated, in the face of the naive and biased version of the majority vote.*" Facts No. 85 to 93, which are held as proven against [Nombre012], lack legitimate substantiation, because the mere word of [Nombre026] is not enough; instead, the trial court needed to have independent proof to corroborate the collaborator's version. The Section of Economic and Financial Crimes of the OIJ determines that the alleged gifts delivered by [Nombre026] to [Nombre012] do not correspond to the 60% that according to [Nombre026] was agreed upon, which constitutes a "counter-indication" that allows one to maintain that [Nombre026] is not telling the truth. The lady judges ignore the nature and applicability of the opportunity criterion ("crown witness") and err in giving the character of absolute proof to the word of [Nombre026]; the alleged participation of [Nombre012] was not part of the corruption agreement that existed between [Nombre026], [Nombre035], and [Nombre015], ignoring the fact that in his statement [Nombre026] indicates that said meeting took place in the month of November 2000, not in the first week of December. The majority tried to accommodate reality to what [Nombre026] said, violating the principle—accepted by them themselves—that [Nombre026]'s version must be corroborated on matters of fact of criminal relevance. The majority also did not rule on another "counter-indication" raised by the defense in their closing arguments, which discredits [Nombre026]: that the meetings in [...] and at [Nombre012]'s house cannot have been on December 3 and 4, 2000, because on December 5, [Nombre026] appeared to vote in the ICE's Board of Directors contrary to what Alcatel required (he voted for a direct contracting instead of an open contracting exclusively in favor of Alcatel for the procurement procedure), which also allows one to see that [Nombre026]'s statement cannot be considered truthful nor corroborated by any direct or indirect means of proof, and cannot be considered as testimony, as he is an accused who had a direct interest in the outcome of the process. Requests that the sentence be annulled and a retrial be ordered (cf. appeal, folios 172774 to 172800). **F)** Lack of substantiation of the sentence because it omitted analyzing and ruling on the following questions raised by the defense: **a.-** That on December 5, [Nombre026] appeared to vote in the ICE's Board of Directors contrary to what Alcatel required (he voted for a direct contracting instead of an open contracting exclusively in favor of for the procurement procedure), which discredits what [Nombre026] says about the alleged meetings at "[...]" and at [Nombre012]'s house and demonstrates that by December 5, such a corrupt pact did not exist, that [Nombre026] lied, that the alleged meeting at [Nombre012]'s house, on which the majority supports Mr. [Nombre012]'s alleged criminal liability, did not occur (cf. appeal, folios 172800 to 172803). **b.-** The effect that a vote by [Nombre027] in the Board of Directors has on the alleged existence of a corrupt pact between Alcatel and various ICE directors, and which is the substratum of alleged reality that, according to the majority, gives credibility to what [Nombre026] said. "*The sentence holds it as proven that this process of buying consciences by Alcatel took place between April and August 2000 and that through this action attributed to the accused who were Alcatel officials ([Nombre035] and [Nombre015]), at least three directors were enrolled, two appointed by my client ([Nombre027] and [Nombre026]) and one with a close relationship to him although appointed by President [Nombre051] ([Nombre004]). In short, to take [Nombre026]'s statement and the process of seduction to which he claims to have been subjected by Alcatel officials as truthful, the majority vote holds as proven, at least, that by the end of 2000, three ICE directors were bought by the French transnational company. However, the same majority vote points out, when recounting the different sessions of the ICE's Board of Directors related to mobile telephony, that in March 2001, [Nombre027] takes actions contrary to Alcatel; specifically, he requests reconsideration and revocation of a previous vote that had determined to acquire 160,000 GSM technology lines from the Alcatel company, with [Nombre027] not having enough votes to have said reconsideration accepted* [...] *If the court, in its majority vote, holds this as proven based on the documentary evidence that incorporates the minutes of the ICE's Board of Directors, and has pointed out that by the end of 2000, [Nombre027] was a piece, necessarily had to be a piece bought by Alcatel, to thus corroborate [Nombre026]'s version, it is evident that it was essential, not only to prove the existence of the corruption plan, but also the very truthfulness of what [Nombre026] said, to resolve, as we requested, this specific topic, which was clearly evaded by the majority, who did not even consider this aspect in their 'substantiation,' I reiterate, expressly required by the defense and which was requested to be resolved in order to make evident the impossibility of giving credibility to the confessing [Nombre026]'s version. Both arguments were presented to the Court, and it did not resolve them by substantiating the content of the defense's proposals*" (cf. appeal, folios 172803 to 172805). **c.-** [Nombre026] gives two versions of the facts in the process, the first on September 30, 2004, in which he says he received a gift from Alcatel without a prior promise, and another in May 2005, given for the purpose of applying an expedited procedure in his favor that later leads to an opportunity criterion, in which he points out that the proposal was prior to the award, in which he committed to three conditions (which, based on what was said earlier, he breached on December 5, 2000), and in which [Nombre012]'s alleged participation is no longer limited to receiving part of those gifts, but to allegedly intervening in the process of [Nombre026]'s determination to commit a crime. Both versions are contradictory; they cannot both be true, but the court does not analyze the question raised by the defense regarding [Nombre026]'s credibility (cf. appeal, folios 172805 to 172806). **d.-** The defense also argued that, given the obvious contradiction of [Nombre026]'s versions, it was necessary to determine which one was true and, if this was impossible, to opt for the most beneficial for the parties, in application of the principle *in dubio pro reo*. But the majority omits resolving this argument, which has decisive consequences on the operative part, because "*...if the crime was Receipt of Gifts and my client, in the version of September 30, does not intervene in [Nombre026]'s decision to commit a crime, then the reprehensible conduct would have been, as we elaborated in our closing arguments, hypothetically a simple receipt of gifts by my client, which was atypical since they would have been received when my client was not a public official, an essential element of the objective type, and therefore would be unpunishable, or at least the statute of limitations would have applied*" (cf. appeal, folios 172806 to 172807). **G)** Violation of the rules of sound criticism, because the sentence is not coherent but contradictory on essential aspects related to the credibility that can be given to the version expressed by the accused [Nombre026] and the conditions that he was required to fulfill by Alcatel within an alleged corruption offer made to him at "[...]" in Alajuela. "*On one hand, the resolution maintains, in the analysis of the merits, that [Nombre026]'s version is completely credible and that, regarding the existence of the illicit proposal, it is proven that [Nombre026] was offered a percentage of the value of the contract for four hundred thousand cell phone lines, in exchange for fulfilling three conditions: 1) Protecting the migration to GSM technology, 2) protecting that said migration was carried out through an open competitive bidding procedure, and 3) that once the technical areas recommended Alcatel's proposal, he would vote in favor of it. However, despite this, the majority vote itself acknowledges that the determination to migrate was determined by the technical areas of ICE, and in them, [Nombre026] himself declares, he had no involvement, nor did he ever speak or seek anything in the sense of migrating. Second, the majority vote itself acknowledges that the decision on how to acquire, through direct purchase or open or competitive bidding procedure, DID NOT CORRESPOND and DID NOT CORRESPOND to ICE to determine, much less to its Board of Directors and least of all to [Nombre026], but rather to the Office of the Comptroller General of the Republic* [...] *From the above, an evident contradiction follows in the majority vote: either [Nombre026] committed to and fulfilled Alcatel's demands as part of the corruption proposal made to him, or it was the Comptroller's Office in its case and the technical bodies that determined not only the mode of contracting, but also the migration itself to GSM technology; but both propositions cannot be simultaneously true. Both propositions are clearly contradictory. Either [Nombre026] tells the truth and he had control, some degree of control, over these matters, which is why his compliance is demanded to receive the gift, or he lies and this, as the Court accepts in the majority vote, was in the hands of other entities over which or on which [Nombre026] had no control or influence; but both propositions cannot be simultaneously true. The Court states, as I said, in a contradictory manner, both the credibility and the lack of credibility of [Nombre026]'s statement on core aspects of his alleged intervention in the questioned contracting, even more so regarding his possibility of fulfilling the requirements allegedly demanded by Alcatel, which makes the substantiation contradictory, both arguments mutually annulling each other and leaving the resolution without adequate substantiation. There is a clear contradiction in the analysis of the elements, given that, as we said, by the principle of non-contradiction it is held that two opposing judgments cannot both be simultaneously true; two contrasting judgments annul each other. Likewise, the resolution is contradictory in holding as proven that by December 4, 2000, [Nombre026] had received the corruption proposal from Alcatel, had consulted my client, and had been determined to commit a crime—this topic of consummation we will see later—but it is evident that the Court bases my client's liability on the fact that at the meeting supposedly held on December 4 at his house, he determined [Nombre026] to commit a crime; however, it holds as proven, without any doubt, that on December 5, the day after [Nombre026] was determined to commit a crime, he votes favorably on points contrary to the supposedly already accepted agreement: first, he votes for a Direct Purchase, when Alcatel demands an open contracting process, and furthermore, he does not vote in favor of Alcatel, but of all its competition. Since said statements are totally contradictory and cannot both be simultaneously true, and this results in the substantiation being incoherent and therefore null and void and subject to appeal, we expressly request the Court of Appeals to declare this ground of appeal to have merit, annulling the contested resolution because it is based on contradictory propositions from which it derives or intends to derive criminal liability for my client*" (cf. appeal, folios 172808 to 172811). **H)** Violation of the rules of sound criticism in the determination and substantiation of facts. In the present case, the resolution flagrantly violates the logical rule of derivation, by estimating, based on the evidence, that there was illicit conduct by my [Nombre012], despite all the evidentiary elements indicating, even [Nombre026] himself, that there was no conduct by my client that in any way favored Alcatel or its contracting by ICE. According to [Nombre026]'s version, he determines at his home, after receiving the proposal from Alcatel officials, that the matter was very complex and that he needed to have the support, he says, of the President, to move forward, but that he never needed to ask him for anything because the procedure "was going very smoothly." The foregoing is essential to corroborate two things: technically, there is not, in any of the evidentiary elements admitted to the debate, a single one from which to legitimately derive the existence of illicit conduct by my client; on the contrary, as we pointed out earlier, when [Nombre026] refers to his participation, he merely limits himself to pointing out that he allegedly consults the President in case the help of a higher authority was needed, which he confesses was never necessary. The majority vote itself holds this as thus proven [alludes to proven fact No. 91]; even under the assumption that [Nombre026] informed the Alcatel officials that he required a higher authority, in none of his versions does he state that he informed them it was the President of the Republic; in fact, this decision to supposedly communicate it to Dr. [Nombre012] arises after he ponders the matter at his home and simply for the event that he might need some help that, we reiterate, was not necessary, according to [Nombre026] (cf. appeal, folios 172811 to 172813). **I)** Violation of the rules of notice to the accused. In their closing arguments of the debate, the defense raised the issue that [Nombre012] was not duly notified during the investigation stage of the facts for which he is finally accused and convicted. "*The basis of such questioning*," points out Attorney Gairaud Salazar, "*lies in the fact that since the Constitutional Chamber has declared that Notice is part of Due Process (votes 9879-2001 and 1739-92. Constitutional Chamber) and consists of the fact that the accused must not only be informed of the provisional classification made of the investigated facts or know the evidence the Public Ministry has at that time, but fundamentally, associated, as Llobet points out, with his right to abstain, to know the specific facts for which he is being investigated. Evidently, as is logical, the facts for which the accused is notified at the time could vary, and this obliges that in the event this variation affects or changes the possible liability, it is the obligation of the Public Ministry to question the accused again, notifying him of the new facts attributed to him* [...] *This is precisely what was presented to the court; my client was questioned on October 15 based on the facts that [Nombre026] had accepted, consisting, as was demonstrated to the Court in closing arguments through documentation, of the assertion that he, [Nombre026], after the award to Alcatel, would have received a gift without a prior promise. In those facts, [Nombre026] does not state that he required help from my client or that the meeting with Alcatel officials had taken place at '[...]' or at my client's house. He was notified that, according to [Nombre026], of the gifts received, a part was given to my client. However, when [Nombre026] changes his version in May 2005, for the purpose of offering an expedited procedure, later used to benefit him with an opportunity criterion, [Nombre026] radically and substantially varies the facts and points out that his original version, given, as he stated in the debate, due to his knowledge or legal veneer and as a mechanism of self-justification and search for lesser responsibility, must be understood in the sense not that he received the gift without a prior promise, but that there was a meeting at '[...]' in Alajuela in which [Nombre035] and [Nombre015] proposed the payment of a gift in exchange for fulfilling three conditions of help in Alcatel's favor, and that finding it attractive and accepting the proposal in principle, after pondering it at his home, he decides to consult it with the President of the Republic, Dr. [Nombre012]. Evidently, there is a huge difference between one set of facts and the other; in one case, it is a gift without a prior promise and without action by my client, except for the receipt in turn of alleged gifts related to the money received by [Nombre026] from Alcatel, and in the second version, there is an alleged 'prior' participation by my client, with a meeting included, in which he is informed of the corruption proposal made to [Nombre026] and favors it. The issue is, then, that since my client was only notified of the first facts and a new questioning was never ordered to notify him of the new facts related by [Nombre026], there is a flagrant violation of his constitutional and legal rights, irremediable as it involves the violation of fundamental rights however (Art 178 of the CPP); surprisingly, the Court affirms, in its majority vote, that there is no defect whatsoever, and shifting the procedural responsibilities, it says on one hand that it was the obligation of my client or his defense to request the new notice, which is an absurdity that violates the constitutional principle of non-self-incrimination, and second, because jurisdiction over the control of the process corresponds to the Public Ministry. It is in the interest of the Public Ministry that the act of notice be carried out, given that by law, said power was conferred upon it with the reform that gave rise to the current Procedural Code, and finally, because it is not the task of the defense—it is not the competence of the defense—to decide if the accused is notified of new facts; what is the competence of the defense is that, once duly notified, the accused testifies or not. Thus, the issue rests on the fact that Dr.

[Nombre012] was not formally charged (intimado) except regarding the receipt of two checks drawn from 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 some certificates with the third payment indicated by [Nombre026] on September 30, 2004; the rest of the alleged receipts of money are facts for which my client was never formally charged and therefore was never investigated, nor was he investigated for the existence of the alleged meeting at his house, in which he supposedly determined [Nombre026] to commit a crime, that is, HE WAS NEVER FORMALLY CHARGED FOR INCITEMENT (INSTIGACIÓN), preventing, in accordance with due process (debido proceso), being tried and much less convicted for such facts." The trial court rejects the defense's objection, saying that the right of defense was not affected, that [Nombre012] could have requested the expansion of his first statement, but the correct procedure—the appellant argues—is that the accused be formally charged regarding the facts imputed to him, at least the fundamental circumstances to fit the conduct into a criminal type and be able to exercise the right of defense, "...something that does not happen in this case, in which the formal charge, based on the first statement of [Nombre026], is not even remotely similar to the one contained in his second statement, not only because of the factual circumstances themselves but also because of the variation in the alleged participatory conduct and its typical classification; for this reason, my client should have been re-investigated after the variation in [Nombre026]'s statement in May 2005, which did not occur [...] Therefore, to maintain, as the majority does, that our questioning is absurd because accepting it would paralyze the investigation stage is a mechanism to evade the specific point raised by the defense; it is not about evidence, I reiterate, it is about facts, and every time the facts vary, the accused must be investigated for those new facts, as many times as possible, if they are susceptible to fitting another criminal type. In this case, such essentiality derives from the fact that it is affirmed that my client incited (instigó) [Nombre026], and this was not a fact known in the case file at the time my client testified, but rather eight months later, when [Nombre026] gave his second version of the facts." [Nombre012] was never formally charged for the facts of which he was accused, he was never formally charged with facts of incitement (instigación); the new formal charge should have occurred at the moment new facts were inserted, which did not happen either in the intermediate stage or in the debate, as is falsely stated in the majority vote; what happened at the beginning of the debate is that the Prosecutor's Office reclassified (recalificó) the facts to a more serious figure, Aggravated Corruption by Bribery (Corrupción agravada por Cohecho propio), but there was no variation whatsoever in the accused facts. It is an irremediable defect, an absolute defect under the terms of Article 178, subsection a) of the Code of Criminal Procedure (Código Procesal Penal), because it is a right of constitutional nature, being a fundamental right enshrined in the Universal Declaration of Human Rights and in the American Convention on Human Rights ("Pact of San José"), as indicated by the Constitutional Chamber (Sala Constitucional); therefore, a dismissal (sobreseimiento) should have been ordered, since it is not possible to revert the matter to stages that have already precluded to remedy the defect (cfr. appeal, folios, 172813 a 172821). J) Violation of the rules of sound criticism (sana crítica) and of the control of the institute of the opportunity criterion (criterio de oportunidad). In the face of interlocutory questions made by the defense regarding the application of the opportunity criterion, the same judges who issued the majority vote in the sentence jointly issued the resolution at 1:30 p.m. on September 2, 2010, indicating that their court was not competent to hear the questions made regarding the opportunity criterion granted in favor of [Nombre026], stating that this power corresponds to the Third Chamber of the Supreme Court of Justice (Sala Tercera de la Corte Suprema de Justicia). This is an illegal, even unconstitutional, renunciation of the criminal court's competencies, which is responsible for hearing all debated matters and exercising jurisdictional control of due process, as ordered by the current procedural law. As Judge Camacho Morales points out in his dissenting vote (voto salvado), the procedure followed for the application of that institute in favor of [Nombre026] transgressed due process. It is in the sentence that the judges determine that it is by comparing the supposed reproaches attributable to [Nombre026], against [Nombre018], [Nombre015], and [Nombre012], that it can be established that supposedly [Nombre026]'s conduct, being the principal actor (autor principal), is less reprehensible: "However," the complainant adds, "such possibility was denied to the judge who heard the request for application of the opportunity criterion, thus violating the jurisdictional control of the opportunity criterion established in the procedural law; the Judge to whom the Prosecutor's Office's request was presented was not allowed to establish whether it was true that [Nombre026]'s conduct was more or less reprehensible than that of the other three mentioned accused. It is precisely the reasoning made by the Court regarding the possibility of comparing the lesser lack of reprehensibility (irreprochabilidad) or lesser severity of the fact, among the different agents involved in the institute, that was violated, because by dividing the competencies, deliberately by the Prosecutor's Office, so that one judge heard the request for application of the Opportunity Criterion and another heard the Accusation, it prevented that control regarding the greater or lesser lack of reprehensibility required by the legal system from being carried out in any way, rendering the procedure for granting the institute completely flawed, violating due process and the legal system, not due to a nullity for nullity's sake, but because the exercise of my client's right to defense derives from the application or not of the institute, his real and not merely formal exercise, even more so when the benefited accused has the virtue of convincing a court that determines that the existence of corroborating evidence is not necessary, but that the problem is one of simple credibility or not. Given that, as we have seen, the statement of the collaborating accused, within the institute of the 'OPPORTUNITY CRITERION' (Art. 22 of the Code of Criminal Procedure), is not EVIDENCE, but rather its content must be accompanied by lawful means of proof that allow corroborating or validating the version of said accused, and therein lies the value of said statement NOT as a MEANS OF EVIDENCE, but as a means of OBTAINING EVIDENCE in accordance with numeral 22 of the CPP which provides '... and the accused collaborates effectively with the investigation, provides essential information to prevent the crime from continuing ... helps clarify the investigated fact or other related ones or provides useful information to prove the participation of other accused ...' It is evident that the Judge who approves said criterion must have at his disposal the totality of possible lack of reprehensibilities, that is, the accusation and the request for approval of the opportunity criterion, and resolve, as the law requires at the end of the preliminary hearing (Audiencia preliminar), numerals 37 and 319 of the Code of Rites violated by the majority vote." Secondly, the challenger reproaches, it was not appropriate to evade the resolution of the opportunity criterion and point out, as the majority vote does, that [Nombre026] testified moved by an altruistic interest, since his spurious interest is evident. He also does not share the majority's affirmation when it says that the Third Chamber has erroneously interpreted the issue of greater or lesser lack of reprehensibility, in the sense that the "repentant" person's participation be milder than that of the one sought to be prosecuted, because reprehensibility cannot be determined until the sentencing stage, when the existence of the unjust act has been determined, which would make said procedural institute inapplicable in any case. In this case, [Nombre026]'s conduct is more serious than that of any other accused, since the Prosecutor's Office itself points out that he was the direct actor with full control of the act (autor directo con pleno dominio del hecho) and therefore his conduct could not be less "reprehensible" than that of a participant; it was not possible to grant impunity to an actor in the face of an alleged incitement that the court recognizes does not consist of a direct action of determination, but was symbolic. He requests that the appealed sentence be declared invalid for being based on an illicitly granted opportunity criterion and that a dismissal (sobreseimiento) judgment be issued (cfr. appeal, folios 172821 a 172828). K) Violation of the rules of application of the penalty and lack of reasoning. He alleges that if the majority imposes the maximum term of the penalty on his client, it does so by saying that this is by virtue of his "greater lack of reprehensibility (irreprochabilidad)" regarding the protected legal interest and for a reason that is clearly spurious, because he was the President of the Republic and because [Nombre026] is less reprehensible, for speaking and because he returned a sum of money, while his client did not return any sum and tried to evade his responsibility by attempting to give explanations that were, in the majority's judgment, unsustainable and because he did not give explanations regarding the origin of part of the money received from [Nombre026]. "These affirmations," alleges attorney Gairaud Salazar, "even though the majority hastened to try to point out that they are not applying the theory of Author-Based Criminal Law (Derecho Penal de Autor), are evidently revealing that indeed the reasons for which the maximum penalty is imposed are unsustainable: First, the greater or lesser lack of reprehensibility does not depend on the hierarchy of the function exercised by the official, but on the greater or lesser impact on the harm to the specific legal interest, not in the abstract, that is, that for the specific fact, the acts of the responsible party are of such or such magnitude as to determine the imposition of the penalty. Second, the exercise of the Right of Defense, which is precisely the corollary of the affirmation that [Nombre026] confessed and that my client did not do so, is a flagrant violation, another one, of due process; the penalty and the maximum penalty cannot be imposed because the accused exercised a constitutional and legal right; such an affirmation becomes arbitrary and illicit legally and constitutionally. Finally, it is based on the reversal of the burden of proof; it is not the accused who must demonstrate, it is the prosecution, in such a way that having not supposedly given said explanation of the funds makes the subject's conduct more or less reprehensible. These three reasons derive in the illegitimacy of the criterion used by the majority to establish the supposed greater lack of reprehensibility of my client compared to [Nombre026], but they do not constitute a reasoning for why the maximum penalty was imposed on my client. In any case, being illicit reasons, they would be excluded as a basis for the imposed penalty, and being so and not having specified the reasons not for the supposed greater or lesser lack of reprehensibility of my client but for the why of the quantum of the penalty, it is evident that the penalty is imposed in a whimsical and illegal manner, violating the duty to provide reasoning for the penalty [...] For exercising his right of defense, the maximum penalty is imposed on him; that is the conclusion we reach after reading the reasoning for the penalty by the majority vote. Nor is it possible to consider said penalty reasonable if we consider that my client acts, according to the majority vote, as a simple instigator (instigador), not as an actor (autor), that the incitement was subliminal, a gesture or a division of percentages, not the direct and express action on [Nombre026]'s psyche, so that it is disproportionate that the Direct Actor with Full Control of the Act goes unpunished and the subliminal instigator is imposed the maximum penalty provided for the crime." He requests that the ground of lack of reasoning and adequate determination and proportionality of the penalty be accepted and that, in the event that the other grounds of appeal regarding form and substance are not accepted and the appealed sentence is confirmed, the imposed penalty be correctly adjusted to an equivalent extent that allows the conditional execution of the sentence (cfr. appeal, folios 172828 a 172831). L) Violation of the rules of application of the substantive norm of Incitement (Instigación) (articles 47, 342, and 340 of the Penal Code). The facts found proven in sentence numbers 90 and 91 do not fit the criminal types of "Accomplices" (article 47 of the Penal Code), "Improper Bribery" (Cohecho impropio) (article 340 of the Penal Code), and "Aggravated Corruption" (article 342 of the Penal Code). [Nombre026] did not require being determined but rather, eventually, counting on help. For the majority, the incitement is not even direct but derives from the statement "let's do 60/40." Attorney Gairaud Salazar adds: "Then, from the very moment the proposal is made to [Nombre026], he accepts it; the majority vote says that [Nombre026] points out that he does so 'in principle,' an adverb that according to the dictionary 'Pequeño Larousse' is provisional, without full acceptance, which evidently is not correct. When [Nombre026] says that he accepts in principle, he says that he accepts the proposal, and the possible conditionality is resolved in proven fact 91; he needed to know if eventually my client could help him in case the matter got complicated, which, as we saw, never happens. In other words, [Nombre026] is determined to commit the crime at the very moment the bribe (dádiva) is offered to him, which according to the violated substantive norms is the moment of consummation, and my client could not determine the commission of a crime that HAD ALREADY BEEN CONSUMMATED, according to the majority vote's own considerations. Accepting in principle reveals that [Nombre026] tells them 'I accept, but I have reservations, I must think about it,' which is effectively what the majority vote says happens when he arrives at his house and, seeing the dimension of the case, decides to consult the eventual collaboration of my client; this evidently IS NOT INCITEMENT, therefore the norm of article 47 and 340 on the topic of CONSUMMATION are flagrantly violated by the majority vote. Consequently, if [Nombre026] accepted the proposal made at the same [...], if later he only required eventual help and not to be determined, evidently my client did not incite him, given that Castillo González, cited by the court, points out: 'Castillo González points out that 'determining' implies that the instigator influences the will of the actor (autor) immediately or, put another way, 'causes' or 'gives rise to' in the actor the resolution to commit the crime (Op. cit., p. 499). Regarding the subjective type, the instigator must determine another and do so intentionally; it is a fraudulent action (acción dolosa) and neither negligence (culpa) nor eventual intent (dolo eventual) is applicable (Op cit., p 510). There is improperly spoken of a double intent (doble dolo): i) that the instigator acts fraudulently regarding his own activity as a determiner. ii) Also, the instigator must have intent directed towards the fraudulent consummation by the actor of the punishable act. (op. cit., p.511).' Consequently, if [Nombre026] accepted the proposal made at the same [...], if later he only required eventual help and not to be determined, evidently my client did not incite him, and therefore the appealed resolution incorrectly applies the norms of incitement and the consummation of Improper Bribery." He requests that this claim be accepted and, finding that from the proven facts it follows that [Nombre026] consummated the crime before supposedly meeting with [Nombre012], that he was already determined at the time of the alleged meeting in the case of his client, and that therefore he could not be incited, that it is illicit that he was convicted as an Instigator of the Crime of Aggravated Corruption by Improper Bribery, and that in his place, and based on the list of proven facts, the acquittal judgment that corresponds in law be issued in his favor (cfr. appeal, folios 172831 a 172836). He concludes his brief requesting this Court of Sentence Appeal (Tribunal de Apelación de Sentencia) to revoke the appealed resolution, order the holding of new procedures, or issue an acquittal judgment in the event that the absence of elements to sustain the accusation against his client at trial is evident to this court. He requests that an oral hearing be scheduled to provide information.

IV.- THE APPEAL OF ATTORNEY RAFAEL ENRIQUE GAIRAUD SALAZAR IS RESOLVED.- In view of what has been resolved regarding the appeal of Dr. [Nombre012] in the preceding Recital (Considerando), it is unnecessary to issue a pronouncement regarding the appeal of his defender, Attorney Rafael Enrique Gairaud Salazar, since his claims have already been accepted.

V.- APPEAL OF ATTORNEY CRISTIAN ARGUEDAS ARGUEDAS.- Attorney Arguedas, also a lawyer for Mr. [Nombre012], has expressed his disagreement with the sentence through various writings, the first of which is an appeal for "annulment (casación)" that he filed on August 1, 2011 (cfr. Volume XXXVII, folios 17387 a 17407). The second is an "appeal of sentence (recurso de apelación de sentencia)" (filed on February 10, 2012, cfr. Volume XXXIX, folios 172687 a 172710), through which Attorney Arguedas adapts his previous annulment claims to an appeal of criminal sentence, in accordance with Transitional Provision III of Law No. 8837 of May 3, 2010 ("Creation of the appeal of the sentence, other reforms to the challenge regime and implementation of new oral rules in the criminal process"). He accuses the non-observance of articles 41, 153, and 154 of the Political Constitution; 41, 112, 142, 266, 363, 365, and 367 of the Code of Criminal Procedure; 99, 290, 291 of the Code of Civil Procedure (Código Procesal Civil); for the following reasons: A) Lack of reasoning for the sentence, by virtue of the court refraining from resolving matters related to the civil action filed by the Instituto Costarricense de Electricidad (ICE), because supposedly its civil action for damages lacks an adequate factual basis (it does not have a clear description of the facts attributable to [Nombre012]) that supports the formulated claims, so it refers the interested parties to the civil jurisdictional venue (vía civil) to clarify the ICE's civil claims. There is no legal norm that authorizes the trial court to decide thus, denying access to prompt and complete justice by not resolving a matter submitted to its knowledge and competence. As the trial court cannot supplement the deficiencies of the parties when litigating, the court should have declared the civil lawsuit of the ICE inadmissible, its filing, or its outright rejection, as required by article 291 of the Code of Civil Procedure, with the consequent condemnation of costs. The trial court should have resolved the matter submitted to its jurisdiction and competence and did not do so, nor did it indicate what its legal reasoning or the applicable norms were to reach that decision of not resolving, thus denying [Nombre012]'s access to justice. The Trial court incurred in "citra petita" because it did not resolve a matter submitted to its knowledge. The defect has been unsuccessfully pointed out in all timely procedural stages and moments. B) Lack of reasoning by virtue of the fact that the trial court did not resolve matters related to the civil action filed by the ICE. The trial court says that a particularity of this process is that not all the accused participated in all the accused criminal acts; rather, it proceeds from the intervention of groups of accused in certain acts, a circumstance that obliges one to have to determine and specify each group of accused and third-party civil defendants who could be held jointly and severally liable (obligados solidarios) among themselves, also in relation to certain acts and certain damages that those specific acts may have caused, with which, one reaches the conclusion that there is no single damage for which all the accused and eventually third parties must respond jointly and severally, which is the assumption on which the civil claims were liquidated by the Instituto Costarricense de Electricidad and the Procuraduría General de la República. What could exist are damages caused by the criminal conduct of determined groups of accused, for which the accused of the group and eventually third parties would respond jointly and severally, independently of the eventual damages caused by other groups of accused. The court says that for each group of jointly and severally liable obligors, it was necessary to specify the damages claimed and the claims, which was not done, making in this regard a global estimate and a single request for condemnation, as if all the accused and legal entities were joint and several debtors of a total damage, which is not the case, because what could exist in the specific case are various individualizable damages per group of accused and third parties who could be obligated to repair them. The total damage referred to in the civil actions could not be more than the sum of the individual damages caused by each group of eventual obligors, which for the purposes of the compensation sought, lacks all legal relevance. The court adds that by the civil actors (Procuraduría General de la República and Instituto Costarricense de Electricidad) proceeding to liquidate claims in the manner they did, they leave the Court unable to rule on their substance, and the foregoing is aggravated by the circumstance that no attempt was made to establish the individual damage eventually caused by each group of joint and several debtors, so that, even if the Court decided to do the work for the civil actor parties, it would lack the inputs for it, and if it did, it would be definitively until sentencing that the civil defendants would come to know what the concrete, determined, and specific claims formulated against them were, in which case due process would be violated, which requires that the specification of claims must occur before the conclusion of the preparatory procedure, so that the civilly sued parties could duly exercise the right of defense, which would be violated if the Court ruled on the substance of the claims as they were formulated. That added to the foregoing, it was also not considered that the same Instituto Costarricense de Electricidad that demands the repair of damages and losses in its favor is one of the legal entities that, according to the law, are jointly and severally liable with the civil defendants for their repair. The Court considers that it could not supply the negligence of the party without gravely violating important principles of the civil process such as the objectivity and impartiality of judges, the right of defense, and due process in general, by allowing actions contrary to the legal provisions that regulate the civil action for damages that affect the correct development of the process and the right of defense of the parties, who would not find out what the concrete claim made against them consisted of until the sentence is issued. According to the court, similar questions can be made regarding the civil actions filed by the Procuraduría General de la República, a State body that the Code of Criminal Procedure entrusts with the exercise of the Civil Action for Damages in representation not of the State, but of Collective and Diffuse Interests (article 38 of the Code of Criminal Procedure). The Procuraduría General de la República could not ignore, when formulating the civil action for damages and its claims, that the State and the Instituto Costarricense de Electricidad were also designated by the law as jointly and severally liable to respond for the damages and losses to the collective or diffuse interests, whose compensation is sought. The foregoing because public officials of the Executive Branch (Poder Ejecutivo), the Legislative Branch (Poder Legislativo), and the Instituto Costarricense de Electricidad intervened in the eventual production of the damages and losses. By not establishing a civil action for damages against said entities, the Procuraduría General de la República breached its obligations according to numerals 20 and 21 of its Organic Law.

Thus, the court concludes, the Office of the Attorney General of the Republic (Procuraduría General de la República), in claiming social damage while representing collective and diffuse interests, could not demand total joint and several liability (responsabilidad solidaria) from all the civil defendants, without differentiating, as was appropriate in this case, among the different groups of joint and several debtors (deudores solidarios), having to determine with respect to each group what the specific criminal act attributed was and the damage caused thereby, all of it factually supported by the description of facts. Therefore, the appellant concludes, the formal defects that the trial court points out regarding the rules of legal joint and several liability (solidaridad legal) generate defenselessness, confusion, and result in the mishandling of the civil actions; the court then decides not to resolve the matter, to escape its constitutional obligation to administer justice, denying justice to the defendant [Name012], sending the matter to the civil jurisdiction, when the appropriate course was to hear the matter and declare it without merit, with the corresponding award of costs against the civil plaintiffs. Attorney Arguedas indicates that during the transfer of the civil action, he raised the objection of necessary passive joinder of parties (litis consorcio necesario pasivo), by virtue of the rules of joint and several liability (solidaridad) that govern the present case, but it was never heard; during the intermediate phase, at the preliminary hearing, and in the trial phase, he supported that objection, since it was considered that the civil lawsuits from ICE and the PGR were not well formulated and that there were several subjects who met the procedural conditions to be considered as defendants and who were not being so considered, as for example the case of [Name026], whom ICE never sued, despite being the main perpetrator of the acts attributed to [Name012]. The court should have declared the objection of necessary passive joinder of parties (litis consorcio pasivo) with merit and awarded costs, but never abstain from hearing the matter. C) Lack of reasoning in the judgment on the issue of costs, because the court does not tell us what its grounds for conviction are, the applicable legal norms, and the basis for, first, resolving with no special award of costs. Second, despite the fact that the court recognizes the irremediable defects of the civil lawsuits from ICE and the PGR, and that these are the responsibility of the civil plaintiffs and the Courts of Justice, this representation does not accept nor share what the court intends: to also hold the defense responsible for the mishandling of their opponents' civil actions, given that this is not the defense's responsibility, nor is such a conclusion logical or rational. In any case, the defense of Dr. [Name012] always made these situations known to the different criminal judges, and for this purpose all kinds of objections were raised at all appropriate procedural moments, which is why said argument lacks any kind of reasoning. If the court recognizes that there are insurmountable defects in the lawsuits due to their mishandling by the civil plaintiffs and the complicity of the administration of justice, that can never be attributable to the defense, especially when it is the defense who, at all procedural stages, denounced such circumstances. Third, what was resolved by the court lacks all reasoning, since it does not say what the plausible reasons for litigating were. Not a single reason or justification is found to qualify as plausible for litigating and, therefore, to exempt the civil plaintiffs from costs, and it does not resolve what was requested by the defense, at least in relation to the objections raised at all times. Nor did it analyze the recklessness and bad faith with which ICE and the PGR litigated, filing absurd lawsuits without any evidentiary basis. He requests that this appeal be granted, declaring the civil lawsuits inadmissible and rejecting them on the merits, sentencing the State and the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) to pay legal and procedural costs, in accordance with the current decree on fees. D) Disregard and erroneous interpretation of the Code of Criminal Procedure (Código Procesal Penal), the Code of Civil Procedure (Código Procesal Civil), and violation of the principle of congruence and correlation between the civil lawsuit and judgment. The court sets forth with great legal acumen the grounds that could give rise to various grounds for appeal and cassation by virtue of the violation of the principles of congruence and correlation between civil lawsuit and judgment; however, it fails, and the court falls into citra petita, by not resolving. According to the jurisprudence of the Second Chamber (Sala Segunda), citra petita is incurred in the event of omitting a ruling on points discussed between the parties (cf. No. 618-2010 of 9:15 a.m. on May 20, 2010), as occurs in this matter. Neither the legal representation of ICE nor that of the PGR requested or asked the court not to resolve the present matter submitted for its consideration. Nor did the technical civil representation of Dr. [Name012] do so; rather, all parties were eager for the court to fulfill its constitutional mandate. From articles 99 of the Code of Civil Procedure (Código Procesal Civil), and 365 and 367 of the Code of Criminal Procedure (Código Procesal Penal), it follows that the option of not resolving a matter submitted to the trial court's consideration has no legal basis in civil procedural or criminal procedural legislation. The principle of congruence is violated when the trial court abstains from hearing the merits of the matter and does not resolve it. For this reason, the present appeal must be granted in its entirety. E) Violation of the principle of congruence previously described because the trial court did not hear the merits of the matter and consequently did not grant the claim of [Name012]'s defense. In addition to the lack of reasoning and contradictory ruling, Attorney Arguedas says that he finds no valid legal argument whatsoever for the court not to rule on the merits of the matter. He requested the court to declare the civil actions of ICE and the PGR without merit, given that the damage claimed by the plaintiffs is non-existent. It never occurred, and therefore there is no compensation to which they are entitled. First, regarding ICE's civil action, Attorney Arguedas raised the objections of lack of right, lack of active standing (legitimación activa), lack of cause, among others, which were never resolved or addressed by the Court, given that ICE did not suffer any economic loss, but rather profited and benefited from the contracting of the four hundred thousand cellular lines. To this effect, the appellate court can consult exhibit number 646, and the testimonies of the former Executive Presidents of ICE, [Name052], [Name053], and the ICE Marketing Manager [Name054], who testified at trial and confirmed the profits obtained by ICE by virtue of the contracting with Alcatel and also denied any economic loss for ICE. Likewise, ICE's claim is based on a reduction made by ARESEP to fixed-line rates, to the deposit or guarantee, and the denial of a rate increase, and therefore what ICE seeks has no causal nexus whatsoever with the facts judged by the trial court. One only has to look at exhibit 782 to realize that the ARESEP resolution that lowered cellular rates dates from the year 2003, long before the facts judged by the Court came to public light (October 2004), which makes the lack of causal nexus with the judged facts evident. That is, what caused the ARESEP resolution was not the facts of this case file. In said resolution (exhibit 782), ARESEP, by virtue of its organic Law, reduced rates for the entire cellular and fixed telephony network, and not only for the four hundred thousand lines contracted from Alcatel. If this is so, the appellant asks, what does the rate reduction one year before the facts concerning telephony contracted with Lucent and Ericsson have to do, or what is the causal nexus, with the 2004 facts attributable to Alcatel? The lack of causal nexus between what ICE seeks and the facts judged is evident. Therefore, ICE's claim should have and must be declared without merit on the merits of the matter. On the occasion of the same ARESEP resolution (exhibit 782), contrary to what ICE requested at that time, the supervisory body for public services did not approve a requested increase of four hundred colones, since, as the witnesses [Name055], [Name056], and [Name052] well testified, GSM generated economies of scale, the administration of the cellular network was made cheaper, and that had to be passed on to the final consumer in the form of a decrease in rates. For this reason, what ICE seeks in its civil action lacks any causal nexus with the facts adjudicated in the court regarding the present case file. Finally, in said resolution, ARESEP reduced the guarantee or deposit per cellular line from sixty thousand colones to twelve thousand five hundred colones, all based on the new and improved cost structure that the implementation of the GSM network entailed. However, as testified by the expert contracted by ICE, the guarantee deposit was not ICE's property, but the users'. However, in an unprecedented manner, ICE sought million-dollar compensation for the impossibility of "floating" (jinetear) or capitalizing the interest on the users' money. This, by all accounts, constitutes unjust enrichment (enriquecimiento sin causa), and is therefore illegal, and in any case, has no causal nexus whatsoever with the facts judged by the Court. In summary, the million-dollar and illegal compensation sought by ICE has no causal nexus with the facts judged by the trial court; for this reason, the judging body should have ruled on the merits, declaring ICE's civil action without merit and sentencing ICE for bad faith, for filing a reckless lawsuit, without any causal nexus with the facts judged by the trial court. Despite this, the Court, in direct violation of the Constitution, did not resolve the defense's petition, but rather, fell into citra petita, as it resolved absolutely nothing. On the other hand, regarding the civil lawsuit for social damage filed by the PGR, it suffers the same fate as that of ICE, as it is reckless and based on non-existent claims, which are discussed below. The PGR claims an alleged damage to democracy by virtue of electoral abstentionism, consisting of an absurd formulation, given that electoral abstentionism is a phenomenon that has been occurring in the country since the 1986 elections and has been constantly growing without stopping since then. The University of Costa Rica, at the request of the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) just after the 2002 elections (two years before the ICE-Alcatel case was even known), conducted the study "Abstentionists in Costa Rica: Who Are They and Why Don't They Vote?" (Abstencionistas en Costa Rica ¿Quiénes son y por que no votan?), by Ciska Raventos Vorst and others (exhibit 771), which maintains and concludes the following: a) The weakening of party loyalties is not exclusive to Costa Rica; b) In a two-party system, party disaffiliation frequently leads to abstention; c) Starting in 1990 and 1994, but particularly in 1998, a new form of abstention becomes evident, motivated rather by discontent with politics and politicians; d) The interpretation of the data leads us to conclude that the Costa Rican political regime, marked by significant stability in party options and voter preferences, has entered a period of change in the last two elections. (It must be considered that this refers to 1998 and 2002, before the facts investigated). The main feature of this change is the discontent with politics and politicians that is expressed in the distancing of voters from the two-party options of the second half of the last century, and not with the present case. Regarding the 2021 elections, the trend was for greater abstentionism. e) In 2002, this group of voters with a high educational level and good socioeconomic condition felt attracted to the PAC's proposal, such that they once again exercised their right in this election. On the other hand, on this occasion, voters of lower socioeconomic levels once again swelled the percentages of abstention, literally compensating for the possible effect of those who abstained in 1998 but returned to the polls in 2002. The foregoing allows us to affirm that, possibly, if a third option had not existed, the levels of abstention would have increased considerably; f) In summary, the increase in electoral abstention in the last two elections seems to be fundamentally linked to political factors, associated with the closing of the political cycle of the second half of the 20th century, in which the main weakened institutions have been the political parties. Despite the proven real data issued by the University of Costa Rica, the PGR bases its calculation of the abstentionism percentage on a news item from the Al Día Newspaper of October 6, 2004, which indicates that abstentionism for the 2006 elections was 64.20/0r which, as is publicly known, never actually occurred, since the abstentionism of 2006 was 34.80/&quot;, for which it suffices to see exhibit 772, which is the certification of electoral results issued by the TSE. In a totally absurd manner, the PGR proposes a methodology to calculate a totally non-existent damage to democracy based on the following. The PGR proposed that since in 2002 an abstentionism of 3l.2% was obtained in 2002 and the figure that the Al Día Newspaper reported when it interviewed 500 people was estimated at 64.2% in 2004, the difference between those figures, which is equal to l33%, or 841,702 voters who would eventually abstain according to the electoral roll, then, that number of voters must be multiplied by the sum of $12.71 which, according to him, is the cost per vote, and which yields the sum of USD $10,697,617, so in this case, with the ICE-ALCATEL case having a responsibility of 33.9% according to a survey of 104 people, the amount imputed to his client is USD $3,626,492. The above calculation is preposterous and absurd for several reasons: 1) the real percentage of abstentionism has no relation whatsoever to the facts judged in this Court (exhibits 771 and 772), given that it was lower than that maintained by the PGR and is due to factors unrelated to the facts judged, as stated previously. 2) The budget for elections is constitutionally defined, and is spent regardless of the voters who go to the polls, whether 1, 10, 300, or the entire electorate vote. Simply put, that investment is part of our decision as a country and democratic identity, so the calculation of $12.71 per voter is by all accounts unfortunate. 3) The weight of 33.9% referring to the responsibility of the ICE-Alcatel case was defined by 104 people from Heredia in a survey, meaning it does not come from a serious study that is extrapolable to the entire national population, just as the PGR's own expert maintains and expert [Name057] did when testifying at trial. 4) A real figure is compared with an evaluation from a survey that is not extrapolable to the population, conducted in the middle of the electoral period, which demonstrates the lack of seriousness and the recklessness of the PGR's civil action. 5) An action on election day is compared with a belief outside the electoral period, but above all, with data from a newspaper issued by a journalist with no knowledge of the matter, not even with real data. 6) There is no logic whatsoever, nor is it justified by any serious study, that national abstentionism is the result of the image of or trial being held against a political leader; for this, in an extreme case, one would have to assume that there had never been electoral abstentionism before 2002 and that 100% of voters attended each election. 100% only attends in the entirety of the electoral roll. [Name012] has no responsibility for the abstentionists or for damage to democracy in this sense. This makes the alleged damage to democracy simply untenable and has no causal nexus whatsoever with the facts judged; for this reason, the Court should have declared it without merit and sentenced the PGR to pay legal and procedural costs. In the same way, the PGR seeks reparation for an untenable and non-existent damage to the national economy. The defense of Dr. [Name012] offered evidence and real data that affirm that the Costa Rican economy suffered no damage from the facts judged, but rather was strengthened year after year. Despite the fact that the PGR proposed an ineffective methodology with no scientific basis, the real data indicate that the national economy suffered no detriment whatsoever, or at least, the facts judged by the Court had no negative impact on national economic development. Exhibit 774, which is a certification issued by the Central Bank of Costa Rica, clearly reflects that the economy from 2001 to 2006 strengthened and increased year after year, and there was no detriment whatsoever. Likewise, exhibit 774 indicates that tourists and tourism income between 2002 and 2006 were always increasing and never deteriorated; that is, the facts judged here had no interference, except to benefit them, therefore there is no causal nexus and an alleged damage to the national economy sought by the PGR with the facts judged here is non-existent. The same exhibit 774 is conclusive in the sense that national exports did not deteriorate due to the facts judged by the Court. Note that the series of years from 2001 to 2006 indicate a sustained increase in national exports; that is, the facts judged here had no impact whatsoever on exports, therefore, the PGR's civil lawsuit had to be declared without merit, with the corresponding award of costs borne by the PGR. Regarding foreign direct investment, exhibit 773 is clear, certifying that the Ministry of Foreign Trade confirms that foreign investment for the years 2001 to 2006 never stopped growing, but rather increased and grew year after year; therefore, the PGR's civil lawsuit had to be declared without merit with the corresponding award of costs borne by the PGR. Therefore, the PGR's civil claims regarding the non-existent damage to democracy and the national economy are by all accounts preposterous and have no evidentiary or legal basis whatsoever, since in reality, neither democracy nor the economy were affected in any way by the facts judged by the trial court regarding the Ice-Alcatel case. For this reason, the Court incurs in citra petita, since it did not resolve what was requested by the civil defense of Dr. [Name012], as the appropriate course is to declare the PGR's civil lawsuit without merit due to the absolute non-existence of any social damage. By virtue of the foregoing, the Court incurs in the defect of incongruence, since it had to resolve the civil actions of both ICE and the PGR, and the only legally possible solution was to declare them without merit and sentence both civil plaintiffs to legal and procedural costs.

Petition. By virtue of the foregoing, he requests the Chamber of Appeals the following:

"a) Grant this appeal against judgment No. 167-201I of three in the afternoon on April twenty-seventh, two thousand eleven, from the Criminal Treasury Court (Tribunal penal de Hacienda) of the Second Judicial Circuit in relation to the civil actions." "b) Declare the inadmissibility of the civil lawsuits filed by both the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General of the Republic (Procuraduría General de la República), sentencing both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." "c) Declare the objection of necessary passive joinder of parties (litis consorcio necesario pasivo) with respect to the civil lawsuits filed by both the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General of the Republic (Procuraduría General de la República), sentencing both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." "d) Grant this appeal by virtue of the lack of reasoning in relation to the grievances previously mentioned and sentence both the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General of the Republic (Procuraduría General de la República) to pay legal and procedural costs in favor of the civil defense of [Name012], by virtue of the reckless, untenable, and bad faith lawsuits." "e) Grant this appeal and reject on the merits the civil lawsuits filed by both the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General of the Republic (Procuraduría General de la República), given that the damages claimed by both civil plaintiffs are non-existent, sentencing both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." VI.- THE APPEAL OF ATTORNEY CRISTIAN ARGUEDAS ARGUEDAS IS RESOLVED.- The disagreement of Attorney Cristian Arguedas is valid; the failure to resolve in the judgment what pertains to the civil actions presented constitutes a denial of justice. A) Regarding the compensatory civil action of the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad). In Considerando XV of the contested judgment, the issue of compensatory civil actions is addressed. It indicates that:

«The Compensatory Civil Action filed by the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) lacks an adequate factual basis to support the founded claims and the possibility of exercising the right of defense and the control of the principle of congruence between the judgment and the compensatory civil action, a defect which, in itself, constitutes an insurmountable obstacle at this stage of the process that prevents this Court from ruling on the merits of said civil action.» (judgment, page 1862).

According to the trial court, article 112 subsection d) of the Code of Criminal Procedure (Código Procesal Penal) (specifically the indication of the grounds on which the action is based) implies that the civil plaintiff must provide a clear, precise, and detailed description of the facts for which the civil action is filed, in order to safeguard the principle of congruence (cf. judgment, pages 1862 to 1873). The court indicates that this ground must be established at the time of formulating the request to be constituted as a civil plaintiff, that it would in no way be admissible for it to be done in the closing arguments of the debate as ICE's representation intended (cf. judgment, page 1873). It adds that the lack of the formal element of the description of facts leads to a compensatory civil action having to be declared inadmissible, in accordance with article 291 of the Code of Civil Procedure (Código Procesal Civil) (cf.

judgment, page 1874), but that:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"<i>When the formal defect is detected at the time of issuing judgment, 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</i>" (judgment, page 1874).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>And further on it adds:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"<i>Faced with such a scenario, the appropriate course is to refrain from issuing a ruling on the merits of the civil action for damages (acción civil resarcitoria) brought by the Instituto Costarricense de Electricidad, whose evident formal defects should obviously have been corrected in earlier stages of the proceeding, and had this not been done, to proceed to a declaration of inadmissibility; however, as already noted, at this stage of the proceeding the only solution the Court finds is to not rule on the merits so that the interested party may pursue its claims in the civil jurisdiction</i>" (judgment, page 1879).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>We consider the trial court's reasoning to be erroneous: even assuming that the very detailed description of the facts that the lower court (a quo) finds lacking constitutes a requirement of the initial brief for joining as a civil claimant (actor civil) (a formalistic criterion not shared by this Chamber), in any event it should have ruled as appropriate on the merits of the matter, since having reached trial, the proceeding cannot be rolled back to precluded stages—admissibility or joinder (constitución)—under the pretext that the civil claimant "supplement its action and correct the defect" (judgment, page 1873) of its joinder application (this is expressly prohibited by Article 179, second paragraph, of the CPP), much less to refer the parties to the civil jurisdiction. <span style='mso-spacerun:yes'> </span>What the trial court ordered constitutes a very clear denial of access to justice, a formalism that has no reasonable basis in Article 112(d) of the CPP and that results from an interpretation of that rule that conflicts with the principle set forth in Article 2 of the CPP, an error that must be corrected. <span style='mso-spacerun:yes'> </span>Also note what will be said in the following section of this recital (considerando). <span style='mso-spacerun:yes'> </span><b><u>B) Regarding the civil action for damages (acción civil resarcitoria) of the Procuraduría General de la República.</u><span style='mso-spacerun:yes'> </span></b>Between pages 1879 and 1892, the trial court adds that it is also not possible to rule on the merits of the civil actions filed by the Instituto Costarricense de Electricidad and by the Procuraduría General de la República, because both made an inadequate formulation of their claims (pretensiones), because "...<i>there is no<span style='mso-spacerun:yes'> </span>single damage for which all the defendants must respond jointly and severally (solidariamente), which is the assumption on which the civil claims were calculated by the Instituto Costarricense de Electricidad and the Procuraduría General de la República.<span style='mso-spacerun:yes'> </span>What could exist are damages caused by the criminal conduct of specific groups of defendants, for which the defendants of the group and potentially third parties would respond jointly and severally, independently of any eventual damages caused by other groups of defendants</i>" (sic, page 1884). <span style='mso-spacerun:yes'> </span>Each group of defendants, the lower court explains, has its own responsibility independent of the other groups, insofar as the accusation (acusación) does not establish participation in all the crimes by all the defendants, the only possibility for joint and several liability of everyone for the entirety of the eventual damage caused. <span style='mso-spacerun:yes'> </span>Furthermore—the trial court says—there are scenarios where the liability of the State or the Instituto Costarricense de Electricidad is ruled out, so it was necessary to specify the damages claimed and the claims (pretensiones) for each group of jointly and severally liable parties, which the civil claimants did not do (cf. judgment, page 1886). <span style='mso-spacerun:yes'> </span>The trial court points out:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"By the civil claimants (Procuraduría General de la República and Instituto Costarricense de Electricidad) proceeding to calculate claims (pretensiones) in the manner they did, they leave the Court unable to rule on the merits thereof. To rule validly, the Court would have to disaggregate the different groups of jointly and severally liable debtors (deudores solidarios),<span style='mso-spacerun:yes'> </span>determine the specific facts attributable to them, and determine the eventual damage that those facts could have caused to the Instituto Costarricense de Electricidad and/or to the collective or diffuse interests (intereses colectivos o difusos) that the Procuraduría General de la República represents. Based on the foregoing, the civil claims could then be assessed, which would have to be modified according to the mentioned factual scenarios, which are their cause (causa). The foregoing is not a task that the Court can undertake, because these are matters whose determination is the exclusive province of the parties and not the Court; were the Court to do so, it would lose its objectivity and impartiality by supplementing (suplir) the deficiencies of the parties and would violate the principle of congruence (principio de congruencia), by ruling beyond what was requested (fuera de lo pedido). The foregoing is aggravated by the circumstance that<span style='mso-spacerun:yes'> </span>no attempt was made to establish the individual damage eventually caused by each group of jointly and severally liable debtors, such that, even if the Court decided to do the work for the civil claimant parties, it would lack the inputs to do so, and to do so would ultimately mean that only in the judgment would the civil defendants (demandados civiles) come to know what the specific, determined, and individualized claims formulated against them were, in which case due process (debido proceso), which requires that the specification of claims occur before the conclusion of the preparatory procedure (procedimiento preparatorio), would be violated so that the civilly demanded parties could properly exercise the right of defense (derecho de defensa), which would be violated if the Court were to rule on the merits of the claims as they were formulated."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Added to the foregoing, it was also not considered that the same Instituto Costarricense de Electricidad that is demanding reparation (reparación) of damages (daños y perjuicios) for its benefit is one of the legal entities (personas jurídicas) that, according to the law, are jointly and severally liable with the civil defendants for its reparation. In other words, had the damages claimed by the Instituto Costarricense de Electricidad been produced, said institution must bear part of those damages, its own public officials (funcionarios públicos) (members of the Board of Directors and others) having intervened in their production. In other words, and in principle, the Instituto Costarricense de Electricidad is a jointly and severally liable debtor for the totality of the damages it claims, for which reason, having borne them entirely, which is equivalent to having fully assumed the joint and several obligation (obligación solidaria), should its existence be proven, the other jointly and severally obligated parties, vis-à-vis the Instituto Costarricense de Electricidad, do not have joint and several liability, but rather the liability that exists among jointly and severally liable debtors internally within the relationship. In this regard, Article 649 of the Civil Code (Código Civil) establishes that <i>"The jointly and severally liable co-debtors (codeudores solidarios) shall divide the debt among themselves into equal parts, unless there is an agreement to the contrary."</i>"</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"As the civil action for damages (acción civil resarcitoria) of the Instituto Costarricense de Electricidad, itself a jointly and severally liable civil party for the damages it claims, is directed against other of the jointly and severally obligated parties, the claim must be limited to the proportional part corresponding to each one, which can only be determined by considering the totality of jointly and severally obligated parties, since the debt is divided into equal parts among all. What is being attempted to be asserted are the actions that a jointly and severally liable co-debtor legally has against the others, and not those of the creditor against the jointly and severally liable debtors. According to Article 693 of the Civil Code, <i>"Every civil obligation confers upon the creditor the right to compel the debtor to the execution of that to which he is obligated."</i><span style='mso-spacerun:yes'> </span>As to the amount of the reparation in joint and several obligations, vis-à-vis another jointly and severally liable party, a debtor is only obligated for the proportional part corresponding to him and not for the totality (Art. 649 of the Civil Code), the foregoing when dealing with private parties. In the case of public officials, each one answers according to the degree of participation in the act and, in that determination, all participants must be taken into account even if they are not parties to the proceeding (Art. 205, subsection 1 of the Ley General de la Administración Pública)."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Thus, the Instituto Costarricense de Electricidad could not claim the totality of the damages caused from the civil defendants, nor did it have a joint and several action against them. In the first place, it had to determine a specific and individualized claim regarding each group of jointly and severally liable debtors, considering the specific and individualized damage that the specific act produced; furthermore, it had to specify, regarding each civil defendant and in the context of each group of jointly and severally liable debtors, the specific claim through a proportional distribution of the claim, in the case of the private defendants, according to Article 649 of the Civil Code, and with respect to the public officials, that specific claim had to consider the degree of participation of each official (Art. 205, subsection 1 of the Ley General de la Administración Pública), all of which, of course, had to have full support in the description of the facts, which had to provide the factual substratum (sustrato fáctico) for the claim, all matters that are exclusively determinable by the civil claimant party (parte actora civil)."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"As already indicated, both in application of the Ley General de la Administración Pública and the Civil Code, the specific determination of the claim had to take into account not only the civil defendants with respect to each group of jointly and severally liable debtors, but the totality of jointly and severally obligated parties according to the law, including those not sued, who must be equally considered in the distribution within the internal relationship of civil liability (responsabilidad civil) in cases of joint and several obligations, because otherwise the other jointly and severally liable debtors would be prejudiced, increasing their liability. The Court again could not supplement the negligence of the party without seriously violating important principles of civil procedure (proceso civil), such as the objectivity and impartiality of judges, the right of defense, and due process in general, by allowing actions contrary to the legal provisions that regulate the civil action for damages (acción civil resarcitoria) that affect the correct development of the proceeding and the right of defense of the parties, who would not learn until the judgment is issued what the specific claim made against them consisted of."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Similar objections can be made to the civil actions filed by the Procuraduría General de la República, a State organ which the Código Procesal Penal (CPP) entrusts with the exercise of the Civil Action for Damages (Acción Civil Resarcitoria) in representation not of the State, but of the Collective and Diffuse Interests (Intereses Colectivos y Difusos) (Article 38 of the Código Procesal Penal). The Procuraduría General de la República could not ignore, when formulating the civil action for damages and its claims, that the State and the Instituto Costarricense de Electricidad were also designated by law as jointly and severally obligated parties to answer for the damages to the collective or diffuse interests whose indemnification (indemnización) is sought. The foregoing because public officials of the Executive Branch (Poder Ejecutivo), the Legislative Branch (Poder Legislativo), and the Instituto Costarricense de Electricidad intervened in the eventual production of the damages. By not bringing a civil action for damages against said entities, the Procuraduría General de la República breached its obligations under Articles 20 and<span style='mso-spacerun:yes'> </span>21 of its Ley Orgánica (Organic Law). According to the first, <i>"The procuradores (attorneys) have, regarding the proceedings in which they intervene before judicial authorities, the powers that correspond to judicial representatives (mandatarios judiciales) under ordinary legislation, with the following restrictions:<span style='mso-spacerun:yes'> </span>they are absolutely prohibited from acquiescing (allanarse), settling (transar), mediating (conciliar), or withdrawing (desistir) from the lawsuits or claims, or submitting the proceedings to the decision of arbitrators,<span style='mso-spacerun:yes'> </span>without the prior written authorization of the Procurador General (procurador general), the Adjunto Procurador General (procurador general adjunto), or the official to whom these delegate.<b> </b>Whatever is done in opposition to the preceding paragraph shall have no value or effect, in or out of court, and the nullity of the proceedings, to which the violation reasonably gives rise, must be declared, even ex officio (de oficio), by the courts of justice."</i> The second cited provision states: <i>"It is forbidden for the servants referred to in the preceding article to fail to bring the lawsuits or claims in which they must intervene as plaintiffs (actores); (…)."</i>"</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Thus, the Procuraduría General de la República, when claiming social harm representing the collective and diffuse interests, could not demand total joint and several liability from all the civil defendants without differentiating, as was appropriate in this case, among the different groups of jointly and severally liable debtors, having to determine for each group what the specific criminal act attributed was and the damage caused thereby, all factually supported by the description of facts. By not proceeding in that manner, but rather through a global claim, as if all the civil defendants had participated in all the crimes charged and without describing in the facts the specific damage caused by the specific act regarding each group of jointly and severally liable debtors, the Court, as with respect to the civil action for damages brought by the Instituto Costarricense de Electricidad, finds itself unable to rule on the merits of the civil actions because to do so it would also have to do the work for the civil claimant party, regarding matters that only concern it, with the corresponding loss of objectivity and violation of due process manifested in the principle of congruence, the principle of inviolability of the defense (principio de inviolabilidad de la defensa), and the principle of impartiality (principio de imparcialidad)."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"The conduct of the civil claimant parties involves deficiencies in the civil actions that, for the stated reasons, prevent the Court from ruling on the merits thereof. The truth is that such defects could have been corrected (subsanado) with a timely and adequate intervention by the courts that acted in the stages prior to the trial (debate), ordering their correction, but by not doing so and by admitting the civil actions in the form in which they were filed, they contributed to the defective procedural activity not being overcome and persisting until this moment when no corrective measure (medida de saneamiento) is possible, and because the procedural activity involves defects of an absolute nature such as the violation of due process and the right of defense, it is not possible to consider said activity corrected (saneada), making applicable the provision in Article 194 of the Código Procesal Civil [...]" </span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Like the Courts of the preparatory procedure (procedimiento preparatorio) and intermediate procedure (procedimiento intermedio), the civil defendant parties could also have alleged the noted defects in the civil actions for damages in the prior stages and not waited until the closing arguments (conclusiones) of the trial, in which case they also bore their share of responsibility for the defects not being overcome and for the Court's inability to rule on the merits of the allegations, claims, and defenses (excepciones) formulated."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"The appropriate course, under the protection of the foregoing, is to omit a ruling on the merits of the civil actions formulated by the Procuraduría General de la República and the Instituto Costarricense de Electricidad and refer them to the civil jurisdiction (vía civil) so that they may resolve their claims." (Judgment, pages 1887 to 1892).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>Again, the trial court's reasoning is erroneous. Note that it says it cannot go on to supplement the deficiencies or negligence of the civil claimants (actores civiles) without violating its objectivity and impartiality, that it cannot do the work for the civil claimant parties of properly specifying their claims with respect to each civil defendant (demandado civil); however, it chooses to "omit a ruling" and refers them to the civil jurisdiction, so that there they may correct all the supposed errors they made when joining (constituirse) (recall what was said in the previous section of this recital) or when formulating their claims, a decision that truly compromises the objectivity and impartiality of the judge, because it denotes a tendency (or "paternalism," as Licenciado Alejandro Batalla said at the oral hearing) favorable to the civil claimants, which significantly aggrieves the civil defendants, who are deprived of a judgment that defines or resolves the situation promptly and fully until the civil claimants manage to correctly carry out their actions. An injury (agravio) has been caused to the appellant (impugnante) that must be corrected through this channel. <span style='mso-spacerun:yes'> </span><b><u>C) Regarding costs (costas).</u><span style='mso-spacerun:yes'> </span></b>The matter of costs was resolved in Considerando XV, Section D (judgment, pages 1892 to 1893). <span style='mso-spacerun:yes'> </span>The trial court says it rules without a special award of costs (sin especial condenatoria en costas) regarding the civil action, because since a ruling on the merits thereof was omitted, the circumstances for an award of costs (condenatoria en costas) are not present, adding that the civil claimant parties had plausible reasons for litigating. <span style='mso-spacerun:yes'> </span>As claimed by Licenciado Arguedas, on the one hand there is no express explanation of why it is to be supposed that the civil parties had plausible reasons for litigating, a defect that leaves the ruling without foundation; Article 266 of the CPP clearly indicates that the court must issue a reasoned decision (en forma motivada) regarding the payment of procedural and personal costs (costas procesales y personales) when issuing the resolution that terminates the case. <span style='mso-spacerun:yes'> </span>On the other hand, in accordance with what has been previously stated, by having omitted the lower court a ruling on the merits of the civil actions, it committed an error that directly affects the setting of costs (cf. Article 270 of the CPP), causing injury (agravio) to the parties, which must be corrected through this channel. <span style='mso-spacerun:yes'> </span><b><u>D) Conclusion.</u><span style='mso-spacerun:yes'> </span></b>The errors indicated in this recital regarding the civil actions and costs have caused an injury (agravio) to the civil defendant [Name012], and by application of the extensible effect (efecto extensivo), his appeal (recurso) benefits the other civil co-defendants (codemandados civiles), since it is not based on exclusively personal grounds (cf. Article 443 of the CPP). Bear in mind that Article 124 of the Código Procesal Penal warns that "<i>From his intervention in the proceeding, the civilly sued third party (tercero civilmente demandado) shall enjoy all the powers granted to the accused (imputado) for his defense, in what concerns his civil interests (intereses civiles)</i>." As for the correction or amendment that is appropriate in this case, it is not possible for this Chamber to make it directly—as Licenciado Arguedas intends—but rather it is necessary to order a retrial (juicio de reenvío) before the competent criminal court (tribunal penal) so that, with a different composition, it may proceed to a new processing of those matters (civil actions for damages and costs). The correction must occur in a retrial—in this same criminal channel (vía penal)—, with the safeguards of the adversarial process (contradictorio) to preserve the principle of procedural equality (principio de igualdad procesal) (Article 6 of the Código Procesal Penal) and to allow any of the civil parties who might potentially feel aggrieved (agraviadas) the opportunity to challenge (impugnar) what is ordered through the remedy of appeal (recurso de apelación). <span style='mso-spacerun:yes'> </span>The trial on the civil consequences and costs must be conducted according to the rules set forth in Article 359 of the CPP, and on the basis that the act charged by the civil and criminal claimants (actores civiles y penal) against the civil co-defendants was not proven at trial. <span style='mso-spacerun:yes'> </span>For all the reasons stated, the appeal (recurso de apelación) filed by Licenciado Cristian Arguedas is granted (se declara con lugar), the judgment is annulled in its civil aspect, insofar as it ordered omitting a ruling regarding the substantive law (derecho de fondo) at issue in relation to the civil actions brought by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as well as the ruling regarding costs, and the case is remanded (reenvío) to the competent court for the new processing of those matters.</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span><b>VII.-</b><span style='mso-spacerun:yes'> </span><b><u>THE APPEAL (RECURSO DE APELACIÓN) OF [Name001] FILED BY LICENCIADA YAMURA VALENCIANO, PUBLIC DEFENDER (DEFENSORA PÚBLICA), IS RESOLVED</u></b><u>.-</u><span style='mso-spacerun:yes'> </span><b>1.<span style='mso-spacerun:yes'> </span>Regarding the crime of improper bribery (cohecho impropio): </b>Of the issues proposed by Licenciada Yamura Valenciano Jiménez, on behalf of Mr. [Name001],<span style='mso-spacerun:yes'> </span>she has expressed her disagreement with the judgment through various writings, the first of which is a remedy of cassation (recurso de casación) that she filed on August 30, 2011 (cf. Volume XXXVII, folios 17685 to 17738), and subsequently in an appeal by conversion (recurso de apelación por conversión).<span style='mso-spacerun:yes'> </span>This Chamber proceeds to resolve the grounds that, by themselves, entail the nullity (nulidad) of the judgment and the acquittal (absolutoria) of the defendant <b>for the crime of improper bribery in the modality of aggravated corruption (corrupción agravada).<span style='mso-spacerun:yes'> </span><u>Section One.- Defects that by themselves entail the nullity of all that has been resolved</u></b>. <b><u>A.</u> Statute of limitations (prescripción) of the case. In the first ground of Licenciada Valenciano, a violation of due process (debido proceso) is alleged because the case has prescribed (prescrito)</b>. She indicates that she raised the preliminary objection (excepción) of statute of limitations in various instances, and it was rejected.<span style='mso-spacerun:yes'> </span>The reason given by the Trial Court (Tribunal de Mérito) to dismiss the statute of limitations was based on the declaration of complex processing of the case that occurred on March 3, 2006, the judges considering that by virtue of that, the reduction of the statute of limitations term could not apply, by virtue of the provision of the third paragraph of Article 376 of the procedural legislation (legislación de rito).<span style='mso-spacerun:yes'> </span>As the defense explains, procedural acts (actos procesales) are governed by the law in force at the time they occur and take effect according to that law.

According to Attorney Valenciano, Article 376 of the CPP does not afford the declaration of complex processing any possibility of making its effects retroactive, nor does it allow for the interruption of the statute of limitations. <b>She is correct in her claim. The initial statute of limitations for the criminal action, in the case of Mr. [Nombre001], is five years for the crime of improper bribery in the form of aggravated corruption, which, according to Articles 340 and 342, subsection l, carries a maximum penalty of five years. Therefore, five years is the full statute of limitations period that had to be calculated, until one of the acts occurred that interrupt the statute of limitations and reduce the term by half. The first act interrupting the statute of limitations occurred on October 8, 2004, the date on which the defendant appeared to give his statement regarding the facts; thus, from that day forward, the period for calculating the statute of limitations changed from five years to two and a half years, or what is the same, thirty months. These thirty months were completed on April 8, 2007, without any of the grounds for interruption provided for in Article 33 of the Code of Criminal Procedure or the grounds for suspension established in Article 34 occurring in the interim. Consequently, by the time the preliminary hearing was scheduled for the first time, that is, on September 10, 2007, the criminal action against [Nombre001] for the crime of improper bribery had already prescribed, and with it, the State's authority to prosecute him criminally. The reasoning supporting this conclusion has already been expressed when resolving Dr. [Nombre012]'s appeal, to which this Court refers to avoid unnecessary reiterations. It is therefore appropriate to declare the case against [Nombre001] prescribed and to acquit him of the crime of improper bribery in the form of aggravated corruption for which he was being charged. <u>B.</u> Defects regarding the determination of the fact and the assessment of the evidence to determine the indicia that led to the conviction for the crime of improper bribery. </b>In the <b>Second ground</b> <b>of Attorney Yamura Valenciano's Appeal on behalf of [Nombre001]</b>, a violation of the rules of sound criticism was alleged, specifically the rules of logic, the principle of derivation, concerning the crime of improper bribery. The applicable rules indicated are Articles 1, 6, 9, 142, 361, 363, and 369 of the Code of Criminal Procedure. The appellant argues that it is taken as proven that her client accepted a promise of a gift from the company ALCATEL in exchange for performing the necessary actions to ensure that said company was awarded the abbreviated process 1-2001, within the scope of his duties as advisor to the presidency and coordinator of the interdisciplinary commission responsible for the project called 400K. To reach this condemning conclusion, the Trial Court gave importance to four evidentiary elements. On the one hand, a REPRETEL video from 3:59 a.m. on January 29, 2004; a lunch invitation, as described in evidence number 81; document 8 of evidence number 396 (folios 17, 19, and 21); the ICE internal memo PE-0102-P of February 22, 2002, evidence No. 75, folios 324 and 325; and, finally, evidence 686, which contains the so-called "[Nombre058]'s action proposal." According to [Nombre001]'s defense, from these evidentiary elements, it is impossible to derive the condemning criterion expressed in the judgment, in the sense that [Nombre001] accepted a promise of a gift from [Nombre015] and [Nombre035] at the end of the year 2000 and the beginning of the year 2001. <b>She is correct in her claim. </b>Even though the act is considered prescribed, and for this reason it would be unnecessary to continue any discussion regarding the crime of improper bribery attributed to [Nombre001], this Chamber considers that the determination of the improper bribery in its form of aggravated corruption attributed to him cannot be derived from the evidentiary elements taken into account by the majority of the Trial Court. This Chamber considers that the indicia the judgment attempted to construct do not reach the necessary relevance and specific weight to be able to attribute criminal liability to [Nombre001]. In this regard, it must first be noted that the action proposal designed by the political scientist [Nombre058] was not an invitation to commit corruption crimes and promote the illicit activity of public officials. As of 1999, it was not possible to define the course that the issue of cellular market opening in Costa Rica would follow. [Nombre058] designed a strategy that essentially meant the need to reach important sectors in public decision-making and convince them of the need to proceed along that path. In other words, Mr. [Nombre058] was pointing to the need to promote approaches that would facilitate the path of a potential opening in the telecommunications sector, but his plan did not encompass bribery and the promotion of corruption of public officials. In 1999, indeed, Mr. [Nombre001] was not an official of the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad). [Nombre001]'s arrival at the institution occurred with the objective of unblocking certain processes that, at that moment, were indispensable for the smooth running of the ICE, and where [Nombre001]'s expertise, due to his prior experience, would be of great help in those tasks. The decision for his entry into the ICE was the result of Mr. [Nombre052]'s management. At least here, there is no influence from Alcatel and [Nombre015] to introduce a key person for their interests into the ICE structure. The judgment itself, at folio 15894 (folio 1452 of the judgment, Volume XXXIII), accepts that [Nombre001] began working at the ICE in October 2000 as the Senior Administrative Executive Assistant in the Executive Presidency, a designation formalized starting January 1, 2001. Among other activities assigned to him were reading and studying documents, advising and making recommendations on matters entrusted to him, and representing the ICE in certain forums before governmental and non-governmental bodies. The ruling refers to the coordination work assigned to [Nombre001] in the abbreviated process 1-2002 for leasing the 400 thousand GSM cell lines (folio 1452). The designation was communicated by the Executive Presidency to the different Strategic Business Units (UENs) on February 22, 2002 (evidence 75, folio 324). At folio 15896, the majority vote states that the person who appointed [Nombre001] was none other than [Nombre052], who confirmed in his statement that the official's arrival was to help "recover institutional peace," severely affected by the events that occurred with the "electric combo." Mr. [Nombre052] stated that he met [Nombre001] at the National University, in the School of Planning, and after hearing about his skills and characteristics, decided he was the person he was looking for those pacification tasks, which he indeed fulfilled (folio 15896, folio 1454 of the judgment, Volume XXXIII). Regarding coordination in the concession process for the 400 thousand cell lines, [Nombre001] was responsible for managing communication with the various groups so they could present their technical criteria, and was also very active in the procedures carried out inside and outside the institution, such as before the Comptroller General of the Republic (Contraloría General de la República). As the condemning ruling considers, [Nombre001] was a person who lacked experience in telecommunications matters, and the decision by Mr. [Nombre052] to hire him is surprising; however, it goes no further than pointing out eventual negligence in his designation. In this regard, it takes the opinion of Ms. [Nombre059] (folios 15896 to 15897, folios 1454 and 1455 of the judgment, Volume XXXIII), who alludes to that lack of technical and legal experience, which, however, he overcame over time. In general, the judgment strings together elements to consider [Nombre001] a key figure in the process of defining the 400 thousand cell phones project, an activity in which he engaged intensely, as several witnesses indicated in the ruling made known, such as Messrs. [Nombre060] and [Nombre061], who had contact with him and knew him at that time, but also Mr. [Nombre062], Associate Director General of Alcatel, and [Nombre063], Director of the Development and Project Execution Unit of the ICE, place him in these tasks (folios 1455 and 1456 of the judgment). From what is stated in the ruling, it is deduced that at a certain point, Mr. [Nombre001]'s main activity consisted of supporting and coordinating the activities related to the 400 thousand cell lines project. The court's thesis consists of accusing [Nombre001] of having accepted a promise of a gift, between the end of 2000 and the beginning of 2001. The promise supposedly came from [Nombre015] and [Nombre035], with the objective that he would perform actions within the scope of his duties as advisor to the Executive Presidency of the ICE, and as the person in charge of executing the 400 thousand lines project, to favor Alcatel in this matter. The majority vote accepts that this conclusion must be produced indirectly, as it involves illicit activities, conceived in clandestinity, and therefore a conclusion about them must come from the concatenation of indicia. This is how the first element assessed by the Court is reached, that is, the Repretel video from 3:59 a.m. on January 29, 2004, where [Nombre001] accepted having received money from Alcatel, that he would assume the consequences of his illicit behavior, and that it was all due to a spiritual weakness on his part (folio 1457 of the judgment). Defense attorney Yamura Valenciano disputes this indicium. She maintains the thesis that her client only accepted having received a sum of money, but that this in no way means the acceptance of a specific criminal classification, concretely, bribery, and that rather it was illicit enrichment, which would already be prescribed. Indeed, Mr. [Nombre001]'s spontaneous statement does not provide certainty about what he committed in terms of a criminal offense; he only affirms having received a sum of money he considered an illegitimate act for which he would assume consequences. According to the court's thesis, it was not necessary for [Nombre001] to qualify his action from a criminal-legal perspective, that it was a journalistic interview that must be assumed and interpreted judicially. It is thus that it begins to interweave that statement by [Nombre001] with the so-called evidence no. 396, which seems to be closely related to 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. <b>Regarding the notes included in evidence numbered 396</b>, identified as document 8, a folios 17, 19, and 21, evidence to which the court states it gives full credibility, Attorney Valenciano criticizes that the right of defense has been violated since the dubious authenticity of these was argued, given that they lacked any element allowing one to know if they were sent or received, and also that they were unsigned and without reference to who prepared them. This was alleged, but the claim was rejected by the Tribunal. According to the defense's thesis, these documents do not show that [Nombre001] received any promise of a gift from [Nombre015]; they only refer to the fact that [Nombre001]'s appointment was made by [Nombre052], and that [Nombre001]'s intervention arose within the ICE itself to unblock project execution. What the note actually shows is that an initial approach is made with an official surnamed [Nombre061], with whom little progress is made, and that they require a change of interlocutor. The person signing the note says they know [Nombre001], a person recently appointed by [Nombre052], and that this person could be Alcatel's interlocutor in the negotiations aimed at the new cellular expansions. In fact, the note alludes to certain characteristics of [Nombre001], describing him as "more political" and that he "will not be contaminated by the influences affecting the central administration." Rather, these statements give the idea that conditions exist for maintaining more fluid communication with him. In a later note, it is added that they managed to make [Nombre001] "lead the baton" in the negotiation, now hoping for a "more flexible position from the negotiating group." The reading of this evidence does not generate in this Chamber the understanding that a gift was promised to [Nombre001]; rather, the idea arises that they have a person more inclined to dialogue and to flexibilize positions in the face of a need also understood as political, due to the great market pressure ahead of an electoral year. Similarly, a note from November 29, 2000, denotes enthusiasm, as progress had been made in getting the ICE to consider other alternatives for immediate needs. Here, the position of the person signing these notes goes in the sense of showing a positive perspective regarding the progress in conversations on the topic of the ICE's opening, but it also alludes to the eventual refusal of the Comptroller's Office to accept Mr. [Nombre052]'s proposal for an eventual direct purchase, and that progress was rather being made towards a bidding process (cf. fls. 1458, 1459). The direct purchase, it must be said, was an objective set by Mr. [Nombre052], and he directed his efforts there, clashing, however, with the Comptroller's refusal, as will be seen later. The undersigned of the notes was analyzing the progress of the opening process, the setbacks, the difficulties, and [Nombre001]'s role in the progress. A derivation from this, for example, that [Nombre001] had accepted a gift cannot be proposed, only that there was allusion to positive information about the institutional climate favorable to cellular market opening. This is how the court proceeds to include in its reasoning a lunch invitation from [Nombre015] to [Nombre001], coincidentally on November 29th, the same day as one of the notes just alluded to. The judges accept that a lunch means nothing, but combine it with the fact that these invitations are also offered to [Nombre026] and [Nombre021], as if that were the modus operandi for offering gifts, when the truth is there is evidence that these lunches were also offered to other ICE officials who have not been accused of any crime. But the majority court concentrates on [Nombre001], and also on [Nombre004], and deduces from these courtesies an illicit closeness, an institutional advantage supported by a remunerative promise, which would ultimately benefit Alcatel in the award of the 400 thousand cell lines. The judicial discourse aims to see these elements not as isolated circumstances, or at least disconnected from a willingness of Alcatel to influence the entire cellular opening process and ensure its preponderance when intervening in the award of the 400 thousand lines. Arriving at this moment in the argumentation, they proceed to study the internal memo PE-010-P of February 22, 2002, sent by the Executive Presidency of the ICE to the Strategic Business Units (UENs), informing them that for the abbreviated contracting process for 400 thousand GSM lines, a commission had been appointed, coordinated by [Nombre001], who would be in charge of the study and award process for the project. In this same line, it is reported that the commission's objective is the study of offers, answering clarifications, evaluation in all aspects, award recommendation, consultation, and resolution of possible appeals, all with the goal of having the contract duly countersigned. The commission would report directly to a high-level body composed of [Nombre052], [Nombre061], and [Nombre027]. Because these notes are supposedly received by [Nombre015] and representatives of Alcatel Cit in France, they infer that [Nombre015] was aware of what was happening internally at the ICE regarding the 400 thousand lines project, and of his pleasure in the appointment of [Nombre001] as coordinator of the commission. However, that pleasure, generally or specifically, is not derived from that evidence, even though it can be admitted that he could logically have been satisfied with the path the whole process was taking, for which [Nombre001] was not solely responsible, but rather it was a concatenation of other conjunctural, institutional, and even opportune factors that were not controlled by [Nombre001], even if he had wanted to control them. Thus, it can be concluded, at least preliminarily, that the accusation is based on the idea that [Nombre001] was made an offer of a gift as the person responsible for the award process for the 400 thousand lines, which he is, at least as of February 2001, and there is no clarity on which acts were expected of [Nombre001], beyond obtaining some advantageous position in a process not controlled by [Nombre001], and which was under the supervision and control, as well as the decision, of a higher-level body. The dissenting vote alludes to this circumstance, regarding the indeterminacy of the acts expected from [Nombre001], which puts the defense in a difficult position and hinders its work, as it is unknown what [Nombre001] did that could have positively impacted Alcatel's expectations. In contrast to the thesis of the dissenting vote, the two main supporting bases of the majority vote's argument go in the direction of considering [Nombre001] an Alcatel asset whom they managed to place within the ICE, and who then managed to become an architect of this multinational's business expectations, ultimately achieving the award of the four hundred thousand lines. The truth is that [Nombre001]'s designation did not originate from Alcatel's management. His designation came from a decision-making process in which Alcatel did not intervene, however pleased it might have been with the appointment of a person who was "more political" and less "contaminated" by the vices inherent to public administration. On the other hand, the effective award did not depend on [Nombre001] either. His coordination and communication exchange work was aimed at creating conditions for making a decision that was ultimately not his responsibility. The documents signed by "[Nombre091]," or that at least bear this indication, also do not show that [Nombre001] received instructions from Alcatel or that he placed his services in favor of the multinational's expectations. The truth is that these documents, lacking established linkage and authorship, do not permit proof of what the Tribunal wishes to derive from them, nor can the concatenation with the video or the memos addressed to the UENs lead one to think that [Nombre001] received a specific promise from Alcatel. The video may allow deriving the receipt of a gift for an accomplished act, after the effective award, if one wishes to extract a criminal-legal consequence from what was stated by the accused, or, at least, the acceptance of illicit enrichment, but it is not indirect evidence of a promise of a gift, however much one might wish to think so given the decidedly extraordinary conditions of that public acceptance of illegitimate conduct on the part of [Nombre001] to Repretel journalists. Decidedly, these funds were not received for legitimate acts, as [Nombre001] accepted, but the information did not contextualize why they were received, or in exchange for what they were received. Without that prior promise, the bribery charge collapses under its own weight and only leaves subsidiary offenses that the Public Ministry could well have charged. The defense attorney's complaint about the prosecutor's accusatory work and the court's effort to string together indicia leads her to discuss the logical problems of the ruling, which prevent imputing bribery conduct to both [Nombre001] and [Nombre004], and the ample margin existing to acquit them based on *in dubio pro reo*, at least for not having clarity on which illicit actions they were being prosecuted for, and specifically which acts were carried out in relation to Alcatel's expectations. The judges of the majority vote accept that the final decision in the award process was not the responsibility of [Nombre001], but insist that for [Nombre015] and [Nombre035] it was important to have a key person on the coordination committee, since they already had [Nombre027], [Nombre026], and [Nombre004] in key positions. The conviction of [Nombre027] and [Nombre064] in their respective abbreviated proceedings gave the court certainty of this chess game designed by Alcatel to ensure success in this award process. To this they add the document prepared by the external consultant Mr. [Nombre058] (folio 1463 of the judgment), called the "action proposal," which alludes to the need for approaching people from different sides, be they business, religious, and, above all, political, spanning the entire ideological spectrum, as well as deputies, former Presidents of the Republic, pre-candidates for the Presidency of the Republic, the political directory of the National Liberation Party, and even the advice of a former president. According to the majority ruling, this would have influenced the considerations of [Nombre015], as the representative of Alcatel Costa Rica, in carrying out the plan to approach [Nombre001], [Nombre004], and the others implicated in the case. However, the consultant's document did not promote the creation of a network of bribes and corruption, but rather gave advice on how to achieve a consensus favorable to a telephone opening solution aimed at using the GSM network. The strategic plan designed by this political scientist, aimed at preparing Alcatel's participation in the Costa Rican cellular market, did not imply committing crimes, nor does it state that public officials must be corrupted with gifts to achieve their participation and consent. Mr. [Nombre058]'s document, as defense attorney Yamura Valenciano states, is not an element that can justify the conclusion that it is the basis of the corrupt criminal plan, much less the source of support for the eventual illicit behavior of Alcatel's directors. In "Considering V" of the Judgment, regarding some background of the case, it was taken into account that Alcatel was a company that was outside the direct purchases of telephone services made from Ericsson and Lucent Technologies, companies already positioned in the national market thanks to their distribution of TDMA networks, dominant until that moment. According to the majority tribunal (folios 974 and 975 of the Proven Facts - Considering V -, Volume XXXII), this state of affairs did not suit Alcatel, so its directors, among them [Nombre015], planned a strategy of approaches to change that situation. On January 26, 1998, via a memo addressed to the Executive Presidency of the 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 commitment that these lines would not be used to meet demand needs, an aspect that was corrected later in a Council session in April 1998. Regarding the issue of opening the ICE to GSM (PCS) lines, the Board of Directors made the decision not to venture into them until the matter was included in the Telecommunications Law (Session No.

5042 of February 2, 1999). Here, there are already indications that venturing into this field was being evaluated since 1999, with the reservation, of course, that it would not be done until the relevant law contemplated this new field of development. Meanwhile, other decisions of the ICE Board of Directors were aimed at arranging direct purchases of additional cellular lines from Lucent Technologies and Ericsson, in equal parts, which represented a natural move, considering that it was said TDMA technology that dominated the cellular telephone market at that time. Then, through another agreement, it was decided to increase by 10 thousand lines of that type with Ericsson for the metropolitan area. The move was explainable given the great demand for cellular lines and the prevailing technology at that time, it must be stressed. Thus, it was decided, subsequently, to make a direct purchase of 100 thousand cellular lines from the two existing suppliers at the time (Lucent and Ericsson) under the protection of Article 79.1 of the General Regulation of Administrative Procurement (folio 976 and 977 of the judgment). According to the report of the ruling, Alcatel did not agree with this course that events had taken; it considered that the direct purchase was not justified, since the articles they wished to acquire were not exclusive. On May 23, 2000, during Session No. 5186, Alcatel Cit made a formal presentation to the ICE Board of Directors on the benefits and advantages of GSM technology. As a result of this presentation, the Board asked ICETEL to prepare and present a feasibility study, including a business plan, within a period of three calendar months, to allow the governing body to make a decision on the matter. On May 30, 2000, in Board of Directors Session No. 5187, after some statements by the members, it was decided that it was not the time to make direct contracts with suppliers other than those already established or to migrate to another technology, but a period of sixty calendar days was established to carry out a feasibility study, a business plan, and a draft tender document on GSM-PCS technology, to determine the viability of the technology change and the expansion of telephone technology suppliers for upcoming contracts (number 24, folios 977 and 978 of the judgment, Volume XXXII). Up to this point, it could not be said that the ICE was not interested in migrating to another technology, or that it discarded any possibility of introducing Alcatel among the cellular technology offerors in Costa Rica. This Chamber considers, as defense attorney Yamura Valenciano rightly weighs, that these steps are directed at creating decision-making conditions that would allow migration to another technology, with all the necessary technical studies to make a reasoned decision in that regard. Thus, on June 13, 2000, in Board of Directors Session No. 5191, it was agreed to give a period of 45 calendar days to the Deputy Management of ICETEL to present a comparative study to continue learning about the procurement of GSM-type cellular lines, leaving what was decided in Session No. 5182 of May 9 in suspense, and it was ordered that the requested report be presented on July 30, 2000. The need for an ICE decision on the issue of the demand for cellular lines that existed in the country at that time is noted, and on the framework or horizon of possibilities that was opening up at that moment, which was almost restricted to continuing growth in TDMA lines or migrating to GSM technology, which promised aggregated services and more favorable prices. The ICE's decision seemed to be defined by this demand factor, but also by the situation that was arising with the available technologies. That is why the benchmarking studies (for comparing installation costs), feasibility studies, and business proposals were essential elements for a correct decision according to the country's needs, addressing the evident public interest in this matter. This can be read from the decisions of the ICE Board of Directors that are outlined. However, the judgment interprets that this entire scenario was adverse for Alcatel, that decisions were not taken with sufficient speed, and that [Nombre015] and [Nombre035] needed to ensure Alcatel's preponderance, since the actions of this Board were not directed at accelerating decision-making. From this, the judges derive the need of these defendants to corrupt public officials, directly or indirectly linked to the decision, to achieve their objective of getting the ICE to open the bidding process for GSM cellular lines and for the final result to favor Alcatel (cf. number 28 of folio 978 of the judgment, Volume XXXII). On July 11, 2000, in ICE Board of Directors Session No. 5199, it can be verified that the decisions the ICE was making were inspired by the search for the best technology, at the best price, in order to meet the growing demand for cellular lines afflicting the country, through the most suitable procurement system in accordance with the Costa Rican legal system. By virtue of these guiding lines, it was decided to form a commission composed of [Nombre065] and [Nombre004], so that with the support of an external consultant, the legal viability of using a special abbreviated procurement procedure for the supplying companies that would allow the acquisition of mobile technology equipment in the shortest time could be analyzed (number 29, from folio 979 of the judgment, Volume XXXII). <u>The events, then, begin to head towards the acquisition of GSM technology telephone services</u>. The ICE Board of Directors, in Session No. 5249, in accordance with the recommendations of the technical area, ordered the implementation of this technology in the 1800 MHZ band, and as indicated by the UEN for mobile telephony, which had explored the technical feasibility of 400 thousand mobile telephony solutions based on existing fixed central offices from Alcatel, Siemens, Nortel, Ericsson, and Lucent. From this, the idea can be derived that the decision for GSM technology did not arise from pressure from Alcatel, but was an institutional objective, based on technical decisions and business recommendations that allowed observing GSM technology as an opportunity to meet the existing demand and the expected growth of the Costa Rican market. The ICE Legal Advisory, through document T-15547 ALCO 1187 of December 5, 2000, and taking into account adaptability, technological convergence, and public interest, considered the direct procurement appropriate. The ICE Board of Directors reasoned, in turn, that GSM technology, being an open standard, allowed the participation of several offerors, which would positively impact the reduction of infrastructure costs and the cost of final terminals for consumers. Without a doubt, these were considerations that benefited the country, the consumers, and in any case, the business and growth expectations of the ICE itself. There was also the endorsement of an internal ICE department, as was the Legal Advisory, which considered the direct procurement process appropriate. In the cited Session No. 5249, it was decided to request permission from the Office of the Comptroller General of the Republic to expand the central offices through the direct procurement procedure, and Mr. [Nombre052] signed the notes addressed to the oversight body. Finally, the Comptroller's Office would not endorse the direct procurement system and would opt for an abbreviated competitive procedure. The note signed by Lic. Manuel Martínez Sequeira, Manager of the Division of Legal Advisory and Management of the Office of the Comptroller General of the Republic, dated January 23, 2001, was made known to the ICE Board of Directors in Session No. 5260 of January 25, 2001. In that note, the "direct procurement" procedure is qualified as non-viable, but for the outlined reasons of public interest, the oversight entity authorized the ICE to implement an "<u>abbreviated competitive procedure</u>" (cf. judgment, folio 980, Volume XXXII). In the referred session itself, No. 5260, the Board of Directors agreed to instruct the Deputy Management of Telecommunications to immediately publish in all national newspapers, with the objective of inviting potential offerors of this equipment, which implied not only the existing competitors, some of them already ICE suppliers, but all those that faithfully conformed to the protocols of GSM technology. At folio 981 of the judgment, what was discussed and analyzed in Extraordinary Session No. 5271 can be read. The spirit of said session was oriented towards assessing the problems in meeting the existing demand for cellular telephone lines, where with the planned moves to acquire more lines, only the existing demand would be met, with a shortage of more than two thousand six hundred fifty applications remaining. The Board of Directors took into account the donation made by Alcatel, which was received on May 5, 1998, GSM technology equipment that provided the opportunity to meet the existing demand and do so with favorable and reasonable operating prices and conditions for the institution (folio 981 of Volume XXXII of the judgment). It was observed that this was an ideal way to mitigate the demand for lines, and it was agreed to accept the proposal of the UEN for Mobile Services for the expansion of the GSM cellular system by 160 thousand lines, through the approval of direct procurement number 108792 with the company Alcatel CIT as the equipment manufacturer and Arrendadora Interfin S.A. as the leasing company for the same (folio 981 of the judgment, number 38, Volume XXXII). Curiously, on March 20, 2001, when the approval of the minutes of session No. 5271 was put to a vote, the convicted [Nombre027] requested that it be repealed with respect to the expansion of the 160 thousand cellular lines by purchase from the company Alcatel. [Nombre027]'s motion was submitted for discussion and was rejected. Voting against [Nombre027]'s proposal were [Nombre052], [Nombre026], [Nombre066], and [Nombre004], while the directors [Nombre027], [Nombre067], and [Nombre055] voted in favor, whereby minute 5271 became final. The path would be open, then, to work on the acquisition of GSM technology lines, and it would be done through the abbreviated process suggested by the Office of the Comptroller General of the Republic. Now, regarding the abbreviated process 1-2001, defense attorney Yamura Valenciano points out shortcomings in the assessment made by the Trial Court, and stresses that one of them consists of not having thoroughly studied the bidding process. At folio 1170 of the judgment, it is stated that the defenses of the various defendants consider the award procedure lawful by virtue of the fact that the expert [Nombre089] so determined, since all the legally ordered steps to achieve it were fulfilled; furthermore, Ericsson's proposal presented non-compliances and defects that led to its exclusion. <u>They insist, the favoring of Alcatel does not occur, according to the judges, due to the observance or not of the described procedure</u>, but in prior phases, such as when they indicate that [Nombre001] carries out preparatory acts or when the vote takes place in the Board of Directors, where directors [Nombre027], [Nombre004], and [Nombre026] participate (folio 1171 of the judgment). In a word, for the Trial Court, even if the stages of publication of the tender document were satisfied, Alcatel was an offeror, Ericsson was disqualified, the latter company's appeal was dismissed, and the Comptroller's Office endorsed the contract, it cannot be considered - according to the trial judgment - that there were no corrupting and corrupt actions (folio 1171 of the judgment). According to the defense attorney, the judges make mentions of procedure 1-2001 but there is no serious study of it. If it had been done, says Licda. Valenciano, especially in view of the appeals filed, the Trial Court would have realized that the decision process was accompanied by technical studies that reflected that all aspects of importance were taken into account; the procedure followed is described thus: "…<i>The tender document was prepared publicly, after convening the entire telecommunications industry with a presence in the country or their duly accredited representatives. Workshops were held at the San José Palacio hotel where the tender document was assembled with its technical, financial, technological, and legal requirements and the procedure for receiving offers. This led to the articulation of the bidding document that was finally published. The purpose of doing it this way was to achieve a kind of consensus between the industry and the ICE that would allow a high-level technological proposal and, at the same time, comply with the deadlines imposed by the Comptroller's Office and the provisions of the Law of Administrative Procurement, since if the tender document was made jointly, the stage of objections to it would be significantly reduced and thereby the times of the process itself.</i>" The witness Licda. Mónica Valerio De Ford was clear in stating that: <i>"…The 400K was a very large leasing contract, for GSM. A complex contract of civil works and another for equipment leasing, it was a very open process from the beginning, that even before publishing the tender document, all companies were invited. Meetings were held by the ICE with ICE teams, all companies brought their teams to participate."</i> The bidding document did not carry Alcatel's "DNA," but was the result of transparent, public work discussed extensively with companies like Lucent and Ericsson that were already ICE suppliers, but Nortel and Motorola also participated, apart from Alcatel. The process reflected, as [Nombre056] proposed, an open procedure with participation from all interested companies. Ms. [Nombre059] expressed on June 14, 2010, in addition to what was proposed by [Nombre056], that the process took into account the ICE's budgetary restrictions, so it was a process where there was analysis of the various elements involved, where companies such as Alcatel, Nortel, Ericsson, Nokia, Siemens, and Lucent made their contributions, in meetings that took place in the ICE auditorium, but also in a capital city Hotel, which she could not determine if it was the Corobicí or the San José Palacio. As a result of these findings, the defense maintains that it was not feasible to think that Alcatel made an offering to the defendant [Nombre001] just at the end of the year 2000, since Alcatel's entry into GSM technology was already given, and the bidding itself was not an idea of the ICE, nor of [Nombre001], but of the Comptroller's Office. Furthermore, at that moment, there could also be no talk of the 400 thousand lines project nor a procurement process, since this was something that arose from the Comptroller's Office itself on January 23, 2001. Therefore, it was not possible for a gift to be offered to him in the year 2000 so that he would take effective actions to achieve a successful procurement that was not known at that time. From the documentary evidence, as stated by Licda. Valenciano, and from the judicial reasoning, it is possible to construct a logical fallacy incurred by the judges when determining fact number 132. It establishes that it was [Nombre001], together with other ICE officials, who achieved the opening of the public tender for the purchase of cellular telephony and the award of the contract for the 400 thousand GSM lines in favor of Alcatel, and that it was precisely for this reason that the gift was given to him. However, and as she explains, it was not that [Nombre001] "achieved" it, nor that the public tender for the purchase of cellular telephony was opened, which was a decision of the Comptroller's Office, without ICE participation, since the latter preferred to proceed with the direct purchase. Nor could it be said, the appellant stresses, that [Nombre001] achieved that the bidding be awarded to Alcatel, since said award recommendation was the product of an extensive study of the offers that were presented only by two companies: Alcatel and Ericsson, which were evaluated legally, technically, and financially by officials of specialized ICE units, who were not under [Nombre001]'s influence, this last aspect which stands out, especially, due to the multiple technical, legal, and financial opportunity considerations, which were not within [Nombre001]'s expertise, and where he could not exercise influence or control. That is why the judgment's annotations on the circumstantial basis for attributing these facts to [Nombre001] collapse under their own weight, and due to the solid content of the evidence available on the abbreviated procedure under analysis, which allows deriving the legal and technical correctness for its award. If one makes the journey that this Chamber has made, following the points raised in "Considerando V" of the ruling under examination, where the context of the entire award of the GSM lines is expressed, it can be observed, without a doubt, that the decision was not easy. There were many reasons to continue with the growth of the TDMA platform, and continue with its technical limitations, or to open the national market to a technology that was beginning to be used everywhere in the world, with great advantages and value-added services, which also allowed promptly addressing the needs for new cellular lines that Costa Ricans required. The trial judgment tried to present a scenario where Alcatel felt excluded from all direct purchase processes and urged decisions that would allow the opening to the new technology it could supply. The idea is sustained that to streamline the decision process, it was necessary to have key figures who would support the orientation towards this path, and who, furthermore, would favor Alcatel. In other words, the trial judgment attempted to read the various sessions of the Board of Directors, finding in them the "symptom" of a corrupt decision, which would end up benefiting an offeror who had not acted transparently and who used corrupting strategies to ensure the successful result of the process. However, the reading of these sessions and their agreements allows seeing a Board of Directors that wanted to satisfy the public interest, meet the existing demand, and prepare the country for the challenges that were already looming on the horizon. Before making any decision, technical studies, comparative studies, business strategy designs, and explorations on the positioning of technologies are requested, with the objective of being able to know if the decision to steer the country towards GSM technology and displace the until then dominant TDMA technology was convenient and in accordance with the public interest. This Chamber can perceive that there was interest in such migration and the technical studies endorsed that path. It is not lost from sight that Alcatel had donated equipment and some GSM lines that the ICE accepted, all under the condition of not using them to alleviate the demand for telephone lines. Nevertheless, Alcatel presents the advantages of this technology in an exhibition to the Board of Directors, and this generates a positive reaction. Technical and subsequently benchmarking studies are requested with the objective of analyzing the technical opportunity and the need for technological change. All of this allows estimating that by May 9, 2000, there was, at least in gestation, an interest in this new technology. Everything would later lead to a proposed bidding document that was inspired by the opening to the new GSM technology, and with technical and legal framework studies that endorsed the steps the ICE was taking in that direction. The Trial Court, in its majority vote, did not detect this trend, and considered that by May 23, 2000, there was no clear declaration from the ICE in that sense, when as has been seen, the Board of Directors itself assessed the public interest in adopting a technology that would satisfy demand, be capable of maintaining a wide number of offerors, and also have advantages for the consuming public. All of this was already being said in May 2000, so there is an important contradiction in the ruling at folio 1117, where the Trial Court, in its majority vote, considers that "…<i>regardless of the economic advantages of the proposal presented by Alcatel in said session, or the benefits of GSM technology-, the truth is that the described agreement of the institution's board allows establishing that even by May 23, 2000, there was no clear or certain determination by said body to venture into GSM technology. It is observed that, on one hand, the collegiate body was ordering a market study with a business plan so that the board could make a decision. On the other hand, it ordered that such a study be prepared within a period of 3 calendar months, and, finally, it established that said analysis should be accompanied by a proposal for a public bidding document, which was contradictory because if the decision to opt for GSM technology had not yet been made, it was not understandable how the board, simultaneously, established that it should be accompanied by the tender document for the public tender.</i> (judgment, folio 1117, volume XXXII). The truth is that there were several levels of decision: on the one hand, the satisfaction of the existing demand for new telephone lines, and the decision towards a technology that would allow better serving the public interest in quality telephone communications. The Board of Directors sessions show these two levels very clearly, and it is observed how the steps of the decision were accompanied by technical studies and business and opportunity opinions that were pertinent. The majority vote says there was a contradiction, since even though a decision had not been made to opt for GSM technology, they do not understand why the Board requests to accompany the tender document for the public tender. This was understandable if it is observed that initially, the decision was to buy cellular lines, in equal quantities, from the two existing suppliers, within the framework of the equipment available at the time. This necessarily entailed continuing with the direct purchase processes that the ICE had already carried out before. The opening of a bidding document was precisely to allow the participation of several offerors, not just Alcatel, in said process.

In fact, those competitors that had experience in providing cellular technology services that would allow ICE to offer quality at a good price and with promptness would intervene. As defense attorney Yamura Valenciano correctly postulates in the oral defense of her challenge, what suited Alcatel most was the direct purchase and not the abbreviated procedure. In the direct purchase, the acquisition of cellular solutions would be distributed proportionally among each of the bidders, and Alcatel would certainly have participated there. Meanwhile, the abbreviated procedure had several uncontrollable circumstances for Alcatel: the number of bidders, the economic and technical offers, and the evident possibility of not emerging victorious. Meanwhile, ICE's moves, through Mr. [Nombre052], were heading toward the direct purchase of technology from five competitors. This outcome would not ultimately be endorsed by the Contraloría, which, weighing the public interest that had been set forth by ICE's own Board of Directors, would indicate the appropriateness of the abbreviated procedure. The judgment itself clearly underlines that Alcatel was denied the possibility of participating in the direct purchase of the original 100,000 cellular lines, and that a public tender would be held for the acquisition of GSM technology (folio 1119 of the judgment, volume XXXII). The relevant technical studies were requested in order to proceed with the tender, and a period of 60 days was set to obtain said studies. The judges of the majority vote prefer to lean toward viewing the path toward the acquisition of GSM technology as uncertain, or at least unclear, and not as an immediate decision. However, they accept that it was conditioned upon the preparation of technical studies. The position of [Nombre027] and [Nombre004] is cited to the effect that they insisted on the direct purchase of more TDMA technology cellular lines, which would have to be carried out with the suppliers already present at ICE, that is, Lucent and Ericsson. Alcatel was not and could not be involved here. On folio 1122 of the judgment, it is clearly noted not only that the judges dismissed the consistency of ICE's decision to move toward GSM technology, but also that there was a double discourse within the Board, since, while the advantages of the multi-provider concept that GSM technology offered were being evaluated, direct hirings continued, the judges disregarding the two decision-making planes that have been set forth above, and which are justified by ICE's dependence on the TDMA infrastructure that had been dominant in the country up to that date. The same judges also underline that the benchmarking studies indicated a drop in prices for cellular interconnections, so the path toward a technology opening was not nonsensical but rather a natural step that needed to be evaluated, and one that ICE's directors were clearly on. Now then, the judges highlight the campaign carried out by Alcatel and other suppliers in the media and the movements to try to get the Board to make a decision on the issue of opening. From this they deduce that [Nombre015] and [Nombre035] understood that Alcatel's commercial interests were in danger and that its possibilities for communication with ICE were reduced due to the tense atmosphere that had been unleashed. Starting from folio 1123, the majority court analyzes the award of the 400,000 cellular lines. Defense attorney Yamura Valenciano argues that the judges could have seen preparatory acts by [Nombre001] to favor Alcatel in said procedure, but that said acts are never described. It is not known if they reproach [Nombre001] for having transferred confidential information to Alcatel, or for receiving proposals outside of the allowed timeframe, or for some illegitimate or unlawful act. According to the appellant, from a reading of the bidding procedure, it can be clearly deduced that the procedure was transparent, with broad participation from the bidders, with contributions from all, from Siemens, Lucent, Ericsson, and even Alcatel. Siemens subsequently decided not to participate due to conditions inherent to the tender, but there was an identical opportunity to contribute to the process. But the defense attorney argues that the judges saw fraudulent intent (dolo) in all of this. The procedure was carried out following the procedures established by law. Only two bidders submitted proposals to this procedure: Consorcio Ericsson II and the joint bid between Alcatel CIT and the Banco Centroamericano de Integración Económica (BCIE). Ericsson's bid was disqualified due to technical defects, while the Alcatel-BCIE bid met the requirements established in the tender specifications (cartel), so it was unanimously agreed to award the abbreviated competitive procedure (sentencia, folio 1127, Volume XXXII). Mr. [Nombre052] declared at trial, it is underlined in the ruling, that ICE's technical bodies all recommended awarding the contract to Alcatel, adding furthermore that the award of the 400,000 lines resolved a large part of the demand for mobile lines, and that the negotiation was positive and justified the need to migrate to GSM technology to provide more and better services to users of new technologies, a point on which former directors [Nombre055] and [Nombre067] also agreed (folio 1127, volume XXXII of the judgment). Ericsson's appeal before the Contraloría, regarding its disqualification, was dismissed, as can be seen in Exhibit No. 640, which contains a certified copy of the entire Abbreviated Competitive Procedure No. 01-2001. The contract signed for the execution of the lease with purchase option for the 400,000 GSM technology lines in the 1800 Mhz band exceeded 149 million dollars, and was endorsed by the Contraloría General de la República (see official communication No. 2543 DI-AA-698, folios 341 a 3446, Volume IX (Exhibit 10), an endorsement that took place at the beginning of March 2002 (folio 1128 of the judgment, Volume XXXII). It is clear then that these two pillars upon which the judgment finds [Nombre001] guilty lack support: on one hand, the promise of a gift collapses because the migration was decided well before the date on which the accusation places the promise of a gift to [Nombre001], and because it is easily verifiable, as this Chamber has done, that the decision for the abbreviated procedure is a recommendation from the Contraloría General de la República, which directly departs from the will of Mr. [Nombre052], who wanted to follow a different path through the direct purchase procedure, which would have directly benefited Alcatel by including it among the suppliers that would have provided, in proportional quantity, a specific number of GSM technology cellular lines, without the uncertainty created by a bidding process in which there were no guarantees of winning. **Grounds of Disagreement by [Nombre001] Regarding the Bribery (Cohecho). Conclusions: Regarding proven fact 28 and its comparison with proven fact number 35**, the appellant indicates that there is a contradiction described as follows: "…*since in the first, the court indicated that [Nombre015] and [Nombre035] determined that it was necessary to resort to offering gifts for ICE to initiate the bidding process, but in fact 35 it finds it proven that it was the oversight body (ente contralor) that authorized the abbreviated competitive procedure, that is, the tender. So, how can it have been proven that Alcatel offered [Nombre001] money to manage to open the competition, if the same judgment indicates that the competition was opened by the Contraloría*…" The appellant refers to a series of studies, which are found in the copy of the file for tender 1-2001:

• Legal study of the bids, folios 1939 a 1907. It is dated August 16, 2001.

• Study and recommendation for awarding abbreviated procedure 1-2001, from the UEN Mobile Services, folios 2037 a 2026.

• Financial study, folios 2025 a 2006.

• Technical study from the infrastructure and energy network planning group, dated August 10, 2001, folios 1954 a 1953.

• Technical study from the generalities, radio, and services group dated August 9, 2001, folios 1952 1950.

• Technical study from the switching group, dated August 8, 2001, folios 1949 a 1940.

It is underlined that Ericsson's bid was declared unviable for containing at least 32 incurable instances of non-compliance with the tender specifications (cartel). It was then that Alcatel's economic bid was opened, after which new studies were conducted, now with the bid price in hand, and it was equally determined that it was advantageous for ICE to contract with Alcatel. The instrument (figura) through which the project was processed was the lease with purchase option. This was financed by the Banco Centroamericano de Integración Económica, which was the owner of the equipment to be installed, with Alcatel being responsible for the operation and maintenance of the network and for the training of ICE personnel. Therefore, and the appellant insists here, it was the responsible area that made the proposal to award the tender in a well-founded manner, and the Board of Directors on August 28, 2001, in session No. 5326, awarded Alcatel the contract for the 400,000 cellular lines. The company Ericsson appealed that decision before the Contraloría on October 14, 2001, an appeal that was dismissed on December 19, 2011, with the endorsement (refrendo) of the contract occurring on March 7, 2002. She thus concludes that the Court reaches an incorrect conclusion about the criminal participation of [Nombre001], not only because it does not indicate what the "necessary actions" were that he undertook to achieve the opening of the competition and the awarding of the contract to Alcatel, but also because those processes occurred, and there is evidence of this, through lawful procedures fully endorsed by ICE's technical departments and by the Contraloría itself, the latter being the entity that made the determination to conduct a bidding procedure such as the one that ultimately took place. Regarding the conduct of improper bribery (cohecho impropio), the appellant raises the following: "…*The acts accused as improper bribery against [Nombre001] range from number 133 to 187, of which only five attempt, in an imprecise manner, to describe the imputed conduct. The rest of the numbers were dedicated by the prosecution to describing the destination of the money that [Nombre001] received. This corresponds to the fact that a large part of the testimonial evidence brought to the debate was to determine if [Nombre001] spent the money on cows, cars, or motorcycles. The court did the same*…" According to the defense, her strategy was to indicate that so much interest should not be paid to the money, as its existence and payment could make [Nombre001]'s conduct fit into a different criminal act, but rather to the defects in the accusation, and the impossibility that the facts it contained could be sustained, and that they rather recounted a different story, suggesting that the money could have been delivered to [Nombre001] for reasons unrelated to the award of the 400,000 GSM cellular lines. She insists that there was a forcing of the evidence to make it fit within the terms of the accusation, without attending to the commitments of the principle of derivation (principio de derivación), sound criticism (sana crítica), and due process (debido proceso). The appellant argues that it is considered proven that her client accepted a promise of a gift from the company ALCATEL in exchange for carrying out the necessary actions so that said company would be awarded the abbreviated process 1-2001, within the framework of his functions as advisor to the presidency and coordinator of the interdisciplinary commission in charge of the project called "400K". This Chamber agrees with defense attorney Valenciano, in the sense that [Nombre001]'s participation in the award of the abbreviated procedure was neither important nor transcendental. Everything indicates that the award coincided with objective elements that contributed to backing Alcatel's technical and economic proposal, a company which received the approval of ICE's technical bodies, in addition to being the only company that ended up being considered upon Ericsson's disqualification due to the technical defects that affected its proposal. The abbreviated procedure did not have Alcatel's DNA, which is to say that the configuration of the requirements was not made taking into account what Alcatel could or wanted to offer, but rather that the drafting process was open and participatory, with the collaboration of all potential bidders, all with the objective of configuring the best proposal, taking into account ICE's technological and financial needs, the latter institution wishing to attend, in the best possible way, to the overriding public interest in obtaining not only the telephone lines to meet existing and future demand, but also at a reasonable cost for ICE and the citizens. It is for this reason that the linking of [Nombre001] through the indicators (indicios) pointed out by the Majority Court does not allow the aspects that constitute the criminal type of improper bribery (cohecho impropio) to be considered settled, and permits considering that the determination of the facts against him lacks the solidity and consistency required by a conviction (sentencia condenatoria), and this would give grounds to annul the ruling. **2. Regarding the crime of simulation fraud (fraude de simulación).** In the **third ground of the appeal by attorney Yamura Valenciano on behalf of [Nombre001], a violation of the rules of sound criticism (sana crítica) is alleged, specifically the rules of logic, the principle of derivation (principio de derivación), regarding the crime of simulation fraud (fraude de simulación)**. The appellant maintains that the court considered it proven that the defendant [Nombre001] fraudulently transferred two vehicles, plates [Valor037] and [Valor038], to the corporation Sociedad Anónima Dominical Antigua, with the purpose of removing them from the possible consequences of a criminal proceeding against him, alerted to this by the news circulating nationally. The accusation was based on the following facts:

- The emergence into the public light of news that mentioned Servicios Notariales QC as one of the companies that deposited money on behalf of Alcatel and the knowledge of [Nombre001]. - The obtaining by [Nombre029] and [Nombre001] of the corporation Dominical Antigua. - The appearance of [Nombre029] and [Nombre001] before the notary public [Nombre028] on September 30, 2004, for the sale of three vehicles to the corporation Dominical Antigua.

Regarding the crime of Simulation Fraud (Fraude de Simulación), the appellant starts from the assertion that not all people are assiduous in finding out about events of interest via newspapers and television news. However, the truth is that in the case of the events related to the famous "CAJA-FISCHEL" case, the dissemination of what happened there, of the flow of money that paid gifts (dádivas) and other royalties to those involved in the matters investigated there, occupied the entire country for quite some time, disseminating details that were commented on by all citizens. It is not possible to follow the defense's reasoning to the effect that [Nombre001]'s actions were decontextualized from those news events and without any fraudulent intent (dolo) to simulate contracts to conceal pecuniary benefits he had obtained illegitimately. It is thus from facts 183 and 184 that it is extracted that the Court considers it proven that it was in mid-2004 that news about corrupt businesses carried out by officials of the Caja Costarricense del Seguro Social was disclosed in the media. As a result, both [Nombre001] and [Nombre029], both with the last name [Nombre068], learned of the investigations and the involvement of Servicios Notariales QC S.A. as part of the criminal scheme to pay the gifts (dádivas) in the CAJA-FISCHEL case. With the objective of keeping these assets safe from the eventual investigations that would be initiated, [Nombre001] agreed with his sister to divert these assets through simulated legal acts. The defense questions this factual derivation because it was not demonstrated, or at least there is no argument demonstrating, that [Nombre001] was a person assiduous in reading national newspapers or watching the country's television news, but the truth is that this circumstance is not central to preventing the judicial inference. It is not necessary to suppose that only citizens who read newspapers and watch television news knew the details of the journalistic investigations and later of the Public Ministry on the CAJA-Fischel matter. The scale of the case, the type of people involved, and the national significance of the matter must have been a subject of commentary in the circle close and immediate to [Nombre001], who was also ready to acknowledge illegitimate acts to the media, to which attorney Yamura Valenciano believes Mr. [Nombre001] was not so partial. The idea underlying the court's criterion is not that all people learn of events through the news, but also through the comments that these events provoked, in the circles close to Mr. [Nombre001]. Therefore, it could be understood that the court elaborated an argument that included [Nombre001], not as a citizen who reads newspapers and watches television news, but as a person who was informed of what was happening, and who was part of events that had the entire country waiting for the course of the investigations. The publications alluded to in Exhibit number 682, in effect, refer to details of the investigations carried out and that involved the characters supposedly involved in the illicit acts of that case (pp. 1548 of the judgment). There are good possibilities that [Nombre001] knew of these news items, not necessarily through the news programs and newspapers, but through the gossip and general commentary they were provoking, and that he knew could turn against him by virtue of the payment channel for the sums that he himself later accepted as illegitimate before a television news program of the company Repretel. It is very possible that this happened in this way, and caused the defendant to imagine the possibility that his criminality might be discovered, and this motivated him to fraudulently transfer two vehicles. For its part, from Fact 185, the following is established: "185) Approximately on September 20, 2004, the defendant's sister, [Nombre029], located Mr. [Nombre069], who was her acquaintance and owned an accounting business, asking him to get her three corporations, making him believe it was for some family procedures. Mr. [Nombre069] told her that he would contact Attorney [Nombre071], who had corporations for sale." In this regard, attorney Valenciano maintains: "…*This fact, as the court considered it proven, does not derive from the statement of [Nombre069], the only one who could have confirmed it. Starting from page 390 of the judgment, the testimony of [Nombre069] is recorded, given on August 12, 2010, who, in what is of interest, indicated: "Around 2004 I was called for an interview, you yourself were the one who asked me if I knew Mrs. [Nombre029], if [Nombre029] had visited me, and I told you that yes, she visited me back in 2004, she visited me to greet me, besides she needed the services of a law firm and I recommended Attorney [Nombre071]. 1 ...] I don't remember having informed the Prosecutor's Office that [Nombre029] asked me to tell her who sold corporations." Upon reading this testimony, it can be corroborated that the witness never said that it was around September 20, 2004, that [Nombre029] visited him at his office; he also did not say that she had asked him for three corporations to carry out a family procedure, but rather indicated that Mrs. [Nombre029] asked him to recommend a law office, so he recommended Attorney [Nombre071]. Therefore, it is evident that what the court considered proven does not derive from the witness's statement. In the intellectual reasoning (fundamentación intelectiva), the court does not point out another means of proof from which it would have obtained the necessary confirmation of this point of the accusation, which is indispensable to have considered it proven*…" However, this Chamber does derive from this testimony that [Nombre029] was indeed seeking a law firm and legal advice for procedures, which, even though it was not said they were of a family nature, were indeed of her interest. Furthermore, in effect, Mrs. [Nombre029] visited the office of Attorney [Nombre071], who had available anonymous corporations (sociedades anónimas) that were later seen involved in the legal act or business under investigation. Regarding facts 186 and 187, the following is established in the ruling: "*186) On September 30 of that year, Attorney [Nombre071] delivered for sale to [Nombre069] three corporations named Terra Toscana S.A., legal ID 3-101-376929, Dominical Antigua S.A., legal ID 3-101-381503, and Camino Medieval S.A., legal ID 3-101-381113, each with book number one of Shareholder Registry, General Assembly Minutes, Board of Directors Minutes, Journal, Ledger, and Inventory and Balances, original articles of incorporation, legal ID, and duly endorsed shares*." 187) That same day, [Name029], by common agreement with the co-defendant [Name001], had the documents of the aforementioned companies brought to the office of [Name069], and once they were in their possession, they immediately appeared before Attorney [Name028] and in the act simulated, through deed number [Value020], the sales contract for three vehicles: two that were in the name of the accused [Name001], plate [Value037], Volkswagen brand, 1999 model, for an amount of four million colones (04,000,000) and plate [Value038], Toyota brand, 2002 model, for an amount of five million colones (05,000,000); and the other in the name of the company MCS Moriah, plate [Value033], Suzuki brand, 2003 model, for an amount of four million colones (04,000,000), all documentarily transferred to Mrs. [Name070] in her capacity as representative of the company Dominical Antigua S.A. Regarding these facts, attorney Valenciano disputes the possibility of deriving that, in effect, this happened as described in the judgment. However, [Name071] himself confirms that this sale of the corporations did, in effect, take place, and that a receipt was prepared that [Name069] had signed. Regarding this signature, the appellant says there is a situation that the court does not clarify, about whether or not it was actually executed by [Name069], since he did not recognize his signature stamped on the document on folio 89, coming from evidence number 404. However, the mentioned discrepancy, which so concerns the defense attorney, can be assessed following the rules of sound criticism, and it can be considered that although it is not confirmed with a graphology test, there is at least an indication that said document existed and that it confirms, at least in principle, that the companies were delivered to [Name069], and with this, the statement of [Name071] about the delivery of the companies would be confirmed, which would later be involved in the dubious transfers that were investigated. The testimony of [Name069], as the trial court itself recognizes, was fearful and not very fluid, but its shortcomings were filled with the testimony of [Name071] and [Name070]. Mr. [Name071]'s professional firm, like other legal offices, prepares and registers corporations that are available for eventual clients who may need them, and they are sold with duly legalized books and with shares endorsed in blank. The alleged "lack of memory" of the witness [Name069], who said he did not recognize his signature on the receipt on folio 89, of evidence item 404, is shown to the other witnesses, who recognize the document with the office logo, the one that was customarily used and which is the receipt and the invoice for collection, and they recognize that of the witness, as it is the same signature customarily used in other office documents. In fact, Mr. [Name071] recalled that days after the sale of the companies, he spoke with [Name069] by phone, who indicated that a client was going to come by the office to pick up [Name070]'s signature to transfer a vehicle or properties and that there was no problem with [Name070] signing (folio 1550 of the judgment). She equally questions, calling them "mere presumptions," the derivations the Trial Court makes in fact number 187, where it is taken as proven that [Name029] and [Name001] had the documents of the companies brought to the notary's office of attorney [Name028], to proceed with the sales reflected in deed number [Value020] of the Protocol of the aforementioned professional. Attorney Valenciano insists that there is no evidence whatsoever demonstrating that [Name029] and [Name001] had acquired the companies Terra Toscana, Camino Medieval, or Dominical Antigua. For the defense attorney, only the testimony of attorney [Name028] could have elucidated whether the defendants had in their possession the books of the aforementioned companies. She claims the Public Ministry's lack of investigation regarding whether the vehicles plates [Value037], [Value039], and [Value038] were de facto possessed by [Name001], which could have determined if the transfer was real or simulated. However, there are elements assessed by the trial court that could provide an important indication of said de facto possession. Observe that [Name070], according to her testimony, has never owned a vehicle, and even though she was the representative of the company acquiring the vehicles, it is surprising that she acquires them if she has never owned a vehicle. Mrs. [Name070], furthermore, was the secretary of attorney [Name071]'s office, following the firm's custom of integrating the boards of directors of the companies for sale with members of the firm, in this case with [Name070], his assistant (folio 1546 of the judgment). It is true that she participates in the legal act as the representative of the legal entity "Dominical Antigua," but it is logical that if the company acquires these vehicles, it would be Mrs. [Name070] who is in charge of controlling, maintaining, and even driving the mentioned motor vehicles. It is true that the acquisition of these vehicles via the corporation is an act permitted by the legal system, in principle, however, it is strange that the representative of the legal entity would not dispose of these assets, at the very least to attend to the maintenance needs of the mentioned motor vehicles, or transfer them to a place where they were properly parked. In this conclusion, there is no confusion of legal terms or a requirement incompatible with the legal nature of the position of representative of the corporation; it is simply a plausible reflection on the participation of Mrs. [Name070] in these transfers and the legal reason and sense of the acquisition of the motor vehicles. It is true that Mrs. [Name070]'s testimony is not the proof that the transfer was rigged and illicit; this derives from the integral assessment of the available indications, which the trial court divided into two moments for its study. On the one hand, the acquisition of the corporations and, then, the legal act of the transfer, which demonstrates that the entire legal scheme only hides a simulated contract that did not have the objective of transferring anything but rather of hiding assets acquired with money that [Name001] himself qualified as illegitimate. Furthermore, the attitude of the defendant himself, of acquiring the company and rushing to make the transfers, reveals, as the Court rightly underlines, his objective of carrying out a fictitious transfer to protect those assets from the action of justice. It is for this reason, also, that the logical fallacy claimed by the defense attorney does not occur. According to her, a circumstance cum hoc ergo propter hoc occurs, according to which there would be a cause-effect condition that is nonexistent. However, in this case, there is an important circumstantial relationship, which allows the deduction that the events that occurred in the Caja-Fischel case led [Name001] and his sister to seek 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 of the connection between the two events, and there is sufficient factual basis to conclude as the trial court does regarding the elements that constitute the crime of Simulation Fraud. It is for the foregoing that the ground raised by the defense attorney against the judgment cannot be granted. On the issue of fixing the value of the transferred assets that constitute the Simulation Fraud and the justification for the penalty for the mentioned crime. The fourth ground raised by attorney Valenciado on behalf of the accused [Name001] has to do with the setting of the value exceeding ten base salaries that the Court makes for the transferred assets that constitute the object of the simulated purchase-sale contract that has been the object of the accusation. The issue has to do with fact number 187: "That same day, [Name029], by common agreement with the co-defendant [Name001], had the documents of the aforementioned companies brought to the office of [Name069], and once they were in their possession, they immediately appeared before Attorney [Name028] and in the act simulated, through deed number [Value020], the sales contract for three vehicles: two that were in the name of the accused [Name001], plate [Value037], Volkswagen brand, 1999 model, for an amount of four million colones (44,000,000) and plate [Value038], Toyota brand, 2002 model, for an amount of five million colones (05,000,000); and the other in the name of the company MCS Moriah, plate [Value033], Suzuki brand, 2003 model, for an amount of four million colones (4,000,000), all documentarily transferred to Mrs. [Name070] in her capacity as representative of the company Dominical Antigua S.A." The appellant indicates the following in this regard: "…The Penal Code establishes, in Article 218, that the penalty indicated in Article 216 shall be imposed, depending on the amount, on whoever, to the detriment of another and to obtain an undue benefit, made a simulated contract. Article 216 establishes that the penalty to be imposed shall be from two months to three years, if the amount defrauded does not exceed ten times the base salary, and from six months to ten years if it exceeds said amount. In such a way that, from the penalty imposed for the crime of simulation fraud—ten years in prison—it is assumed that the court considered that [Name001]'s conduct fits the second paragraph of Article 216, that is, that the amount defrauded exceeds ten times the base salary, even though the judgment did not analyze, explain, or justify it in the legal grounds. The judgment held as proven that the defendant [Name001] simulated a sales contract for two vehicles to the company Dominical Antigua S.A., plate [Value037] Volkswagen brand and plate [Value038], Toyota brand. The deed stated that the value of the vehicles was four million and five million colones, respectively." The appellant is correct in her arguments. The Court does not explain from where it derived the value of the transferred vehicles: on the one hand, whether it extracts it from the value indicated in the deed or if it used some other parameter to estimate whether the amount defrauded exceeds the amount of ten base salaries. There is no expert opinion in this regard or a prudential determination that could have served as a basis for a discussion on this topic, of great importance for setting the penalty ranges to which the accused could be subject in case of being found guilty of the illicit act of Simulation Fraud. The defense attorney Valenciano must also be given reason on the issue of the determination of the penalty for the illicit act of Simulation Fraud for the accused [Name001], to which she dedicates the sixth ground of her appeal. The Court did not give sufficient reasons to be able to consider as proportional, suitable, and necessary the amount of ten years in prison that it imposed on the defendant, the highest extreme of the penalty provided for this criminality. After indicating what is related to the capacity for culpability and the awareness of unlawfulness, as well as that the facts are typical, unlawful, and culpable, and recapitulating the proven facts, the court proceeds, in a scant paragraph, to attempt the reasoning of the penalty (cfr. folios 1553 and 1554 of the judgment). The peculiarity upon which it is of interest for the defense to draw attention is that this paragraph is exactly the same one the court used for the justification of the penalty for the defendants [Name001] and [Name004] in the case of aggravated corruption, which reveals the court's total lack of interest in expressing the reasoning that led it to impose, it is insisted, the maximum extreme of the penalty provided for simulation fraud…" She transcribes the passages of the judgment where this weighing is done, and analyzes that the only thing changed in the weighing for both defendants was the name. As already explained, the court prefers reasonings of negative special prevention, but without giving any true reason that, in accordance with the principles of the Rule of Law, allows the judgment on the penalty established for the wrong committed to be considered substantiated. There is no way for the defendant's defense and for this Chamber to control the true reasons for the imposition of this penalty, and what the basis was for an individualization of the quantum of the custodial sentence at its highest extreme. It is therefore appropriate to annul the judgment regarding the Simulation Fraud for which [Name001] was convicted, solely, regarding the determination of the extreme from which the penalty would be fixed in the relationship existing between Article 218 and 216 of the Penal Code regarding the value of the amount defrauded, as well as the penalty imposed. The referral of the case is ordered so that these two extremes may be discussed: the amount defrauded shall be fixed in accordance with procedural rules and, according to this amount, the minimum and maximum extreme of the penalty to be imposed shall be established, and a justification of the penalty shall be carried out in accordance with constitutional requirements and Article 71 of the Penal Code. The judgment on the Simulation Fraud remains unscathed in all other aspects. 3. On the violation of due process due to the introduction of illegitimate evidence not admitted in the hearing. Attorney Yamura Valenciano explains that the Court never established, in a manner consistent with the rules for incorporating evidence into the process, what the date of the REPRETEL video was, in which [Name001] had supposedly accepted having received money from ALCATEL. She recounts the procedural legislation norms that regulate the incorporation of evidence in the Costa Rican criminal process, and establishes that, in violation of what is stipulated there, the Trial Court subtly establishes a date and time for the video that was never legally defined. In fact, the defense did not exercise control over this aspect until this appellate venue. As the defense establishes, this action by the Court puts her in a state of defenselessness, since she was not aware of the evidence, and could not exercise control over it nor could she oppose it. She transcribes the section of the judgment where the defect is committed: "Now then, as has already been mentioned, a video dated September 24, 2004, from Repretel has been viewed in which the accused [Name001] voluntarily accepts before the journalist interviewing him having received money from the Alcatel company; between September 28 and 30, 2004, the news about this event is published in the national newspapers." (page 1551). Regarding this, the appellant adds: "…According to the text of the judgment just pointed out, there was a video from the Repretel company that was incorporated into the hearing. On this point, there is no discussion whatsoever; in effect, it was offered by the Public Ministry, accepted by the court, and duly incorporated. The defense's claim rests on the fact that no evidence was ever incorporated into the hearing that would allow defining the date on which the video was made, which was even alleged by the defense in the closing arguments phase since, as part of the defense strategy, the omission of that datum by the prosecutors was vital, insofar as the video could not be placed temporally and this limited its evidentiary value. It is inadmissible, in a Rule of Law State, for a court to wait until the parties' closing arguments are finished and, in accordance with the weaknesses of the investigation pointed out, especially by the technical defense, substitute the labor of the accuser and search for data that were not duly incorporated into the process and assess that data to the detriment of the defendant…" There is a subtle reference to the datum, but a clear omission of the reference to the licit evidentiary element from which said information is derived, which causes a reference from a nonexistent evidentiary element, which the Court well knows is the situation available in the case. The appellant finds other references in the judgment to the video where reference is made to other dates and other times of its supposed broadcast: "…See how, even, in another part of the judgment, specifically on page 1457, the court refers to the same video, but says it is a Repretel video from 3:59 a.m. on January 29, 2004, which leaves the doubt as to what the date is, January 29, 2004 or September 24, 2004, data over which the defense did not exercise any control in the hearing but only at the cassation venue. The incorporation in the judgment of the supposed date of the Repretel video in the judgment leaves the defendant in a state of defenselessness, since, as this was not established in the hearing as offered and incorporated evidence, he was left defenseless; the technical and material defense could not control the veracity or not of the datum, could not contradict the evidence in any way, nor could they contradict the conclusions that, in the judgment, the court obtains from the datum that was gathered after the closure of the hearing. It is not a simple date. This incorporation has a transcendental consequence in the court's decision, which is to give it a temporal reference point that was never provided by the prosecution, and which the court uses to 'prove' that at the moment the defendant carries out the sale of the vehicles to the company Dominical Antigua, September 30, 2004, he already knew that he could be linked to the corruption events dealt with in the judgment…" "To determine what the defendant's intention was at the time of the mentioned acts and thus to disperse his assets, simulandi, in the sense that he would be subjected to a criminal process and as the time in which these legal acts take place and the need he had (…) Now then, as has already been mentioned, a video dated September 24, 2004, from Repretel has been viewed in which the accused [Name001] voluntarily accepts before the journalist interviewing him having received money from the Alcatel company; between the 28th and 30th of September, the news about this event is published in the national newspapers. In said information, a series of data are mentioned that reveal the magnitude of the events. The Court estimates that it is precisely those circumstances that lead the defendant to carry out the transfer of the vehicles from his property to a corporation. From that moment, together with the voluntary manifestations that he had provided days before, [Name001] strengthens his knowledge that he will probably be subjected to a criminal process and that his patrimonial assets could be pursued by the authorities, so it was necessary to place them in safekeeping." (folio 1551). In this regard, the appellant reaffirms her criticism of the judgment, not only for making an affirmation that is not based on a justification using properly incorporated evidence, but also because the court derives the knowledge of the situation from a date of a video whose exact date was unknown until the judgment was notified. In support of her claim, she cites a note by Magistrate Rosario Fernández Vindas to Vote No. 1329-2006, where she understood that a court could not say it had acted according to sound criticism and experience when an assessment made of an evidentiary element is not extracted from the evidence received at trial but from the appreciation generated by the Court itself without going through the analysis of the adversarial process, leaving that appreciation as part of the judge's private knowledge. Magistrate Fernández's note is relevant, according to the appellant, because in this case there are consequences, since if the incorporated datum is suppressed, there is no way to demonstrate that by September 30, 2004, the defendant had news that there was an open investigation where Servicios Notariales QC S.A. was mentioned, so that he would suspect that his name would become involved in a scandal and that as a result he decided to fraudulently transfer his vehicles. She requests that the ground be granted, and that the judgment be annulled as to the conviction for the crime of Simulation Fraud and, for procedural economy, that the defendant be acquitted for lack of evidentiary means to demonstrate the accused conduct. The appellant is correct, however, the nullity of the datum of the date of the Repretel video does not have the virtue of leaving the determination of the fact on the issue of simulation fraud without proof. The consideration made by the defense attorney for [Name001] on the issue of the date and time of the video from the Repretel company, where the defendant supposedly acknowledged having received money from the Alcatel company, was not established in a manner that could be known and questioned by the material and technical defense of the defendant. In fact, there is no determination in the judgment that allows knowing how the date and time of said video are fixed with the certainty that the majority vote grants it.

The defense counsel additionally manages to determine that in various sections of the judgment, two different dates are set; in one part of the judgment, specifically on page 1457, the court refers to the same video, but states it is a Repretel video from 3:59 a.m. on January 29, 2004, which casts doubt on which is the correct date: January 29, 2004, or September 24, 2004—data over which the defense exercised no control whatsoever during the trial, but only at the cassation stage. The information regarding the date and time is, in effect, of great importance to the defendant's defense strategy, given that it was in that interview that he admitted to having illegitimately received money from Alcatel, and that he accepted the consequences thereof. In the same way, and based on the video, he is linked to an entire criminal scheme to remove movable property from his personal assets (peculio) and place them beyond the reach of justice. The latter is an important part of the derivation made by the court in the case of the crime of Fraud by Simulation (Fraude de Simulación) attributed to him, as it affirms that this is part of the elements that lead it to decide to simulate a purchase and sale agreement (contrato de compraventa) to a corporation (sociedad anónima). At the hearing of the appeals filed in this case, defense counsel offered a note dated October 30, 2012, signed by [Name072], News Information Chief of Noticias Repretel, visible at folio 174382 of Volume XLI, where he indicates that it is not possible to certify on what date journalist [Name073] conducted the interview with Mr. [Name001]; what could be certified was that the document entered its archive on October 7, 2004. He explains that the television station stored that type of video in a broadcast format, which is now obsolete since digital format is used today. Thus, even with the information coming from the television company itself, the reference that the defense of defendant [Name001] now challenges could not be determined with the chronological and date certainty that the court provides. Similarly, it must be analyzed whether this is the private knowledge of the judge or an inference drawn from other elements; there must be sufficient reasoning so that it can be analyzed at this appellate level (sede de apelación) and eventually at cassation, to derive which elements allowed the judges to consider that the video's date is a specific one. However, and even though this would render the fixing of the video's date and time unlawful, it would not do the same to the document itself, since it was offered and introduced into the process lawfully, and can be assessed by the trial court (tribunal de mérito) and by this appellate level. In the same way, there are other elements of evidence, which have been weighed in the preceding section, that allow it to be held as true and valid that the accused attempted to remove some movable property from his personal assets from the reach of justice through simulated acts or purchase and sale agreements. The evidence, of course, was questioned by the defense, but this Chamber has already considered that it does allow for the conclusion reached by the trial court, together with the fact—which must be underscored—that it was not necessarily the Repretel video itself or the news from television news programs or newspapers that led [Name001] to decide to remove these goods from his personal assets, since it is clear that he could well have learned of it from general comments made within his close or trusted circle, or from co-workers who discussed those circumstances that were interwoven with the investigations carried out regarding the case known as Caja-Fischel, which had some common elements with the matter in which [Name001] knew himself to be involved. For the foregoing reasons, even if hypothetically the reference to the date and time of the video granted by the Trial Court were excluded, other evidence elements subsist, correctly introduced and assessed at trial, that support the circumstantial evidence that allows the criminal planning of [Name001] to be derived, in his attempt to remove property from his personal assets from the eventual inquiries that would not take long to be brought against him.

VIII.- THE APPEAL OF [Name004] RAISED BY LICENCIADA YAMURA VALENCIANO, PUBLIC DEFENDER, IS RESOLVED.- 1. Regarding the crime of improper bribery (cohecho impropio): Of the issues proposed by Licenciada Yamura Valenciano Jiménez, representing Mr. [Name004], she has expressed her disagreement with the judgment through a conversion appeal that she filed in Volume XXXIX. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the accused for the crime of improper bribery in the modality of aggravated corruption (corrupción agravada). First Section.- Defects that by themselves imply the nullity of everything decided. A. Prescription (statute of limitations) of the cause. In the first ground of Licenciada Valenciano, a violation of due process is alleged because the cause has prescribed. She indicates that she raised the objection of prescription at various instances, and it was rejected. The reason given by the Trial Court to dismiss the prescription was based on the declaration of complex processing (tramitación compleja) of the cause issued on March 3, 2006, the judges considering that by virtue of this, the reduction of the prescription term could not apply, pursuant to the third paragraph of Article 376 of the procedural legislation. As the defense argues, procedural acts are governed by the law in force at the time they occur and take effect according to that law. According to Licenciada Valenciano, Article 376 of the Criminal Procedure Code (CPP) would not give the declaration of complex processing any possibility of making its effects retroactive, nor of interrupting the prescription. She is right in her claim. In the present matter, [Name004] has been accused of the crime of improper bribery in the modality of aggravated corruption, which, according to Articles 340 and 342, subsection 1, has a maximum penalty of five years. Therefore, five years is the full prescription period that had to be counted, until one of the acts that interrupt the prescription and reduce the term to half occurred. The first interruptive act of the prescription occurred on October 10, 2004, the date on which the accused appeared to give his statement on the facts; therefore, from that day forward, the period for calculating the prescription went from five years to two and a half years, or equally, thirty months (see folio 146, Volume I). Those thirty months elapsed in April 2007, without any of the grounds for interruption provided for in Article 33 of the Criminal Procedure Code or suspension established in Article 34 occurring in the interim. Consequently, by the time the preliminary hearing was scheduled for the first time, that is, September 10, 2007, the criminal action against [Name004] for the crime of improper bribery had already prescribed, and with it, the State's power to prosecute him criminally. The reasoning supporting this conclusion has already been expressed when resolving the appeal of Dr. [Name012], to which reference is made to avoid unnecessary repetitions. It is appropriate, then, to declare the cause against [Name004] prescribed and to acquit him of the crime of improper bribery in the modality of aggravated corruption that was being attributed to him. B. Defects regarding the determination of the fact and the assessment of the evidence to determine the circumstantial evidence that led to the conviction for the crime of improper bribery. Despite the fact that the cause against [Name004] has been declared prescribed, and any subsequent assessment of the elements that make up the jurisdictional conviction criteria could lack interest, it is now appropriate to analyze other aspects that could cause the nullity of the judgment due to deficiencies in the argumentative process and in the generation of the inferences of the majority vote of the trial court. Thus, it is of interest to analyze the third ground of the appeal formulated in favor of [Name004], where Licenciada Yamura Valenciano raises affronts to the rules of logic, to the principle of derivation in the reasoning of the judgment insofar as it attributes the crime of improper bribery to the accused. She begins with a transcription of facts 116 and 117 of the judgment: "116) That during his tenure as a director of I.C.E., defendant [Name004] maintained fluid communication and extreme trust, derived from his position, with defendant [Name015] and with indictee [Name035]. 117) Without specifying a date, but in the period between late 2000 and early 2001, defendants [Name015] and [Name035] asked defendant [Name004] to carry out the necessary actions within the scope of his functions as a Director of I.C.E., in support of Alcatel's interests, primarily, to promote the migration from TDMA technology to GSM technology, promote purchases through tenders (licitaciones), and prevent them from being aborted. Subsequently, once the abbreviated contracting process for the 400,000 was authorized, they asked him to vote in favor of the award of said tender to the company Alcatel; in exchange for all the above, they promised him the delivery of a bribe (dádiva), which would be paid in money. Said promise was accepted by defendant [Name004]…". The arguments that the court uses to establish said promise as true are the following: "Consequently, it is clear that the described scenario did not favor the commercial interests of Mr. [Name015] and [Name035], representatives of the firm Alcatel CIT, a circumstance that motivated them to promise and later deliver a bribe to [Name004] who, as a member of the ICE Board of Directors, had the power to promote the change from TDMA technology to GSM, to vote in favor of a public tender thus allowing the participation of Alcatel Costa Rica, and to vote affirmatively for the award of the 'abbreviated 1-2002' contract for the lease of the '400,000 GSM cellular lines' in favor of Alcatel. As indeed happened. A second evidentiary element to consider that this 'promise of a bribe' effectively occurred is constituted by the statement of cooperating defendant [Name026], to whom the Court by majority has given full credibility, without finding to date any reason to say that he has come to lie to the trial, as has already been indicated in previous considerations; even though we could find some differences regarding the statements that were incorporated by reading at trial, the truth is that in their relevant points, he has always maintained the same version. This is how he points out that he effectively met with [Name015] and [Name035]. In said meeting, in his own words, the aforementioned offered him a reward if he helped them in three directions: 1) to help materialize the migration to open technologies or GSM; 2) that the project or initiative to purchase materials and equipment for this expansion be materialized through a public contest or tender; and 3) that he vote affirmatively for the technical criteria or those of the technical bodies as the ICE director that he was. An important piece of information that we must not overlook is that, according to the testimony of [Name026], the 'offerors' at the beginning of that meeting stated that they had courtesies or rewards for the people who helped them. [...] A third element to consider for the purpose of considering the promise of a bribe as proven is constituted by the so-called 'proposal for a course of action' prepared by [Name058], a witness who although abstained from testifying at trial, this does not prevent the use of that document since it was incorporated by reading to the trial. Said proposal, which describes a basic scheme of action to address Alcatel's problems with the ICE, as has already been specified, covers for example the business sector, the Catholic Church, minority parties, but also the political sector. The document is very clear in warning that the support of at least three deputies, a pre-candidate for the Presidency of the Republic, members of the political directorate of the National Liberation Party (Partido Liberación Nacional), and private advisement, including from a former president, would be needed (Evidence No. 686). This document, without a doubt, demonstrates the urgency and need that Alcatel Costa Rica, in the person of co-defendant [Name015], had to exhaust all social and, above all, political instances so that its offer regarding GSM technology would be the one accepted by the ICE. Let us recall said company's dissatisfaction with the administrative policies in the area of procurement that the ICE had. The foregoing only confirms what the prosecutorial accusation has already described, regarding the fact that co-defendants [Name015] and [Name035] effectively contacted not only [Name026], but also [Name004] and [Name001], in order to promise them a bribe in exchange for helping the company Alcatel to succeed, given their functions...". It is thus that the defense of [Name004] maintains that three are the fundamental elements to sustain this conclusion of the judgment regarding the offer of a bribe that the former director received. On one hand, the statement of [Name026], the roadmap drawn up by [Name058], as well as the presumed adverse scenario that was presented for Alcatel's interests. This Chamber considers that Licenciada Valenciano is right in her appreciation of the argumentative elements of the judgment, and in her criticism thereof. It has already been analyzed, in great detail, when resolving the appeal in favor of [Name001], that this Chamber does not share the view of the majority vote of the trial court in the sense that the "roadmap" drawn up by Mr. [Name058], as Alcatel's political advisor, implies the design of a criminal plan to corrupt public officials. It is rather a design of a strategic plan to build a consensus regarding the need for decision-making on the issue of technological opening in the cellular field, which implied reaching various sectors and opinion-forming persons, with the aim of generating knowledge about the technical issue and the technological advantages that said opening could bring. It is possible that Alcatel felt lagging regarding its aspirations to participate in the Costa Rican cellular market, and it is also possible that at some point it felt excluded from intervening in direct purchases already made from the suppliers—up to that moment dominant at ICE: Lucent and Ericsson. However, the scenario of lagging behind did not necessarily mean that Alcatel decided to approach [Name004] to make him a promise of a bribe, specifically, to collaborate with the multinational's business objectives. In the same way, deriving from the statements of [Name026] certainties about the intervention of [Name004] in any corrupt criminal scheme is, as has already been studied on the occasion of the resolution of Mr. [Name012]'s appeal, impossible, for the reasons already expressed when analyzing the issue of [Name026] and his role in this process. The defense counsel correctly points out the circumstance that the same reason for the accusation that could correspond to [Name026] cannot be attributed to another ICE director like [Name004] was. [Name026] himself said he did not know if other ICE directors received the same bribe proposal that he received. This argumentative proposition of the Trial Court cannot be endorsed by this Chamber and collapses under its own weight. The Trial Court attempted to involve [Name004] in the decision regarding the concession of the 400 thousand cellular lines to Alcatel, traces his participation in the sessions of the Board of Directors where the matter is discussed, and cites the Extraordinary Session No. 5249 of December 5, 2000 (folio 1395 of the judgment, Volume XXXII). However, the judges' own citation of this Session does not omit the reference to the fact that there was a Comprehensive Telecommunications Plan project that needed to be promoted and that authorization had to be requested from the Comptroller General's Office (Contraloría General) to expand the exchanges and provide solutions with a GSM system. Right there it was noted that the Business Unit (UEN) for mobile telephony justified the "technical affability" to implement 400 thousand cellular lines starting from the existing fixed exchanges. As was seen during the study of the appeal raised in favor of [Name001], said process up to the decision of proposing the matter of the 400 thousand lines in an abbreviated procedure was not devoid of problems, difficulties, and requests for information and technical studies. The decision itself to opt for an abbreviated procedure was not the ICE's but the Comptroller General of the Republic's. The ICE preferred to continue with the matter of direct purchases. The abbreviated procedure itself, and the core of the request for offers, did not specifically carry Alcatel's orientation. The generation of said tender arose from the joint work of the ICE authorities, the suppliers, and was an intensive process that sought the best offer that would allow the ICE to fill the existing demand and incorporate services of interest to Costa Rican users. All aspects related to these arguments have already been discussed and analyzed before, but they are repeated here to point out the weakness of the derivations made by the majority Court, as well as the alleged offer of a bribe that [Name004] might have received to pave the way for the Alcatel company in an abbreviated procedure that, at the date the alleged bribe was given, did not even exist as a real possibility. According to the Court, there was a relationship of trust and friendship between [Name004], [Name015], and [Name035] (folio 1401, Volume XXXII); said closeness explained why it supposes that between late 2000 and early 2001, they promised him a bribe in exchange for promoting the migration from TDMA technology to the GSM technology that Alcatel supplied. Among the favors and closenesses, the judgment mentions the letters sent to Alcatel Chile to attend to [Name004] when he visited that country, or the reservation of Hotels in Spain and France in March 1996 (folio 1402 of the judgment). The courtesies extended to the accused occurred on other occasions, even paying for a trip for him to Spain in October 1999. The judgment weaves together this relationship of [Name004] with [Name015] and with Sapzisian and then connects him to the plans for favoring the multinational in its venture in Costa Rica. That is why, in the judgment, the Court links the payment of the sums of money to [Name004] with the fulfillment of the tasks entrusted to him in relation to the 400 thousand cellular lines. However, and as already explained for the case of [Name001], the plan to offer bribes at a time when there was still no clarity on the path to be followed and when a path was finally chosen that was not entirely favorable to Alcatel, such as the abbreviated procedure, which did not guarantee it any certainty of emerging victorious from the offer process, leaves much of this argumentative line of the Court without support. It is true that, finally, Alcatel emerges victorious, but as could be observed from the previous decision-making path, this occurs precisely because it met the requirements of the offer and because the company Ericsson was disqualified. The circumstantial evidence that the judgment constructs in this regard proves, therefore, meager and amphibological, as defense counsel Valenciano accused. This Chamber has already insisted on the need for the weighing of the circumstantial evidence to result in a conclusion based on its global analysis. It is from there that the rules of logic and experience demand that the circumstantial evidence lead rationally to the conclusion sought to be sustained. The three elements that the judgment on the merits attempts to use lack the solidity that the Trial Court intends to give them, and its conclusions cannot be endorsed to sustain a conviction. This is why the ground raised by the defense of [Name004] must also be declared well-founded for this reason, and for these reasons, the judgment would also have to be annulled because there is no support in the determination of the fact attributed to accused [Name004].

IX.- THE APPEAL RAISED BY DEFENSE COUNSEL NAZIRA MERAYO ARIAS AND WILSON FLORES FALLAS IN FAVOR OF ACCUSED [Name007] IS RESOLVED.- 1. Regarding the crime of Illicit Enrichment (Enriquecimiento Ilícito): Of the issues proposed by Licenciados Nazira Merayo Arias and Wilson Flores Fallas, representing Mr. [Name007], their disagreement with the judgment has been expressed through various writings, the first of which is a "cassation" appeal filed by defense counsel Flores on April 27, 2011 (cf. Volume XXXVI, starting from folio 171102), and subsequently in a conversion appeal. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the accused for the crime of Illicit Enrichment. First Section.- Defects that by themselves imply the nullity of everything decided. A. Prescription of the cause. In the first ground regarding form of Licenciado Wilson Flores's appeal and in the first regarding form of Licenciada Nazira Merayo's appeal, a violation of due process is alleged because the cause has prescribed. They indicate that the objection of prescription was raised at various instances, and was rejected. The reason given by the Trial Court to dismiss the prescription was based on the declaration of complex processing of the cause issued on March 3, 2006, the judges considering that by virtue of this, the reduction of the prescription term could not apply, pursuant to the third paragraph of Article 376 of the procedural legislation. As the defense argues, procedural acts are governed by the law in force at the time they occur and take effect according to that law. Article 376 of the CPP would not give the declaration of complex processing any possibility of making its effects retroactive, nor of interrupting the prescription. They are right in their claim. The appellants mention that the legal classification given to the facts against [Name007] was reduced to the crime of illicit enrichment, which for the date of the facts stated (December 10, 2001, Article 346, subsection 3): "A public official who, without incurring a more severely punished crime, shall be punished with imprisonment from six months to two years: 3) Accepts bribes (dádivas) that were presented or offered to him in consideration of his office, while he remains in the exercise of his position." Hence, co-defendant [Name007] is attributed 3 crimes of illicit enrichment, in material concurrence (concurso material), according to the provisions of Article 346, subsection 3 of the Penal Code, punishable with prison sentences of 6 months to 2 years, whose prescription period, according to Article 31 of the Criminal Procedure Code, would be 3 years; therefore, the period reduced by half would be 18 months from one of the events of interruption of the prescription. Specifically, Article 33 of the procedural law establishes that prescription periods shall be reduced by half in several cases; the one of interest here is when the investigatory statement (declaración indagatoria) has been rendered. In the case of Mr. [Name007], this took place at 2:05 p.m. on March 7, 2005 (Folio 1984).

Therefore, a statute of limitations period of 18 months must be calculated from this moment until the holding of the Preliminary Hearing. The scheduling of the Preliminary Hearing was done on September 10, 2007, meaning that by the time said act took place, the case would have already prescribed since September 7, 2006. However, the Trial Court considers that the declaration of complex proceedings declared on March 3, 2006, produces a retroactive effect, affecting the declaration as an accused (imputado) that had begun with ordinary proceeding prescription rules. This Chamber had already ruled against the retroactive effects given to the declaration of complex proceedings for the case. The reasoning supporting this conclusion has already been expressed when resolving the appeal of Dr. [Nombre012], to which reference is made to avoid unnecessary reiteration. It is therefore appropriate to declare the case against [Nombre007] prescribed and to acquit him of the crime of Illicit Enrichment (Enriquecimiento Ilícito) that had been attributed to him. **B.** Spurious evidence. In the sixth ground on procedural form of the appeal of attorney Wilson Flores and also in the sixth ground on procedural form of the appeal of attorney Nazira Merayo, on behalf of the defendant [Nombre007], the incorporation of evidence obtained in violation of fundamental rights is challenged. The appellants state that the judgment would have incurred a violation of due process, by violating the provisions of articles 24 of the Political Constitution (Constitución Política), 175, 176, 363 paragraph b and 369 paragraph d, both of the Code of Criminal Procedure (Código Procesal Penal), 29 of the Law on the Registry, Seizure and Examination of Private Documents and Intervention of Communications (Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones), an aspect punishable by nullity. With respect to documentary evidence No. 588, which is a certified copy of the Judicial Assistance from the Republic of Panama, sent via official letters PGR-030-2004, dated September 10, 2004, and No. 316-DN-TALM-04 of September 6, 2004, consisting of 420 folios, the appellants state that the consent of the legal representative of Marchwood Holding, the account holder, Mr. [Nombre032], is not sufficient, since the proceeding was carried out, in its time, without a judicial order as required by Costa Rican law. They argue in this regard, based on some considerations about the fundamental right to privacy derived from article 24 of the Constitution, which is in turn a guarantee derived from international human rights law (article 11, paragraph 2 of the American Convention on Human Rights (Convención Americana de Derechos Humanos), article 17 of the International Covenant on Civil and Political Rights (Pacto Internacional de Derechos Civiles y Políticos)). Intervention in the private sphere of citizens may only be authorized by law, and under the conditions it establishes, and in whose application and interpretation there will always be jurisdictional guarantee. By virtue of this, consent such as that expressed by [Nombre032] would not have the virtue of enabling the disregard of the guarantees derived from that constitutional right to privacy. The action consented to by [Nombre032], moreover, affects the fundamental rights of other actors, and through it, an element of evidence is obtained and information is obtained linking Servicios Notariales Q. C. S. A. with the Cuscatlán International Bank and international transfers from Servicios Notariales Q. C. S. A., in favor of accused persons in this case and from Alcatel Cit in favor of Servicios Notariales Q. C. S. A., therefore the evidence derived, including evidence against [Nombre007], would also be unlawful, and it is requested to be declared so. **They are correct in their claim.** The arguments for analyzing this legal problem have already been explained above, when resolving the appeal filed by Dr. [Nombre012] (A-1). Accordingly, it is appropriate to apply to the defendant [Nombre007] the same effects that this determination had for the defendant [Nombre012]; the nullity of documentary evidence No. 588 and all the evidentiary elements dependent on it are declared, the nullity of the criminal conviction judgment handed down against [Nombre007] is declared, and instead he is directly acquitted of all penalty and liability. The contested judgment remains intact insofar as it acquitted him for two crimes of Illicit Enrichment. **B.** Defects regarding the determination of the fact and the assessment of the evidence to determine the indicia that led to the conviction for the crime of Illicit Enrichment. **1) Regarding the elements of the objective and subjective actus reus (tipicidad) of the crime of Illicit Enrichment that must comprise the accusation and the evidence that must be assessed for the legal-criminal attribution of the fact to the defendant.** In the first ground of the appeal of attorney Wilson Flores, and in the fourth ground on procedural form of the appeal of attorney Nazira Merayo, an erroneous application of substantive law is alleged, since the **facts described in the accusation corresponding to facts 203, 208, and 210 do not describe the objective and subjective elements of the criminal definition of illicit enrichment that is charged, corresponding to article 346, paragraph 3 of the Criminal Code (Código Penal).** They argue that the judgment incurs a violation of the principle of correlation between accusation and judgment, as established in articles 363, paragraph b) and 369, paragraph h), both of the Code of Criminal Procedure. According to attorney Wilson Flores, the facts from 199 to number 211 present problems with respect to the typical description of the crime of illicit enrichment. **They are correct in their claim.** This Chamber has carefully read the facts attributed to the defendant [Nombre007], and it is observed that, indeed, it is attributed that various gifts (dádivas) consisting of money were presented to him, which were admitted by him, while he remained in his position as an ICE official in the Switching Department (Departamento de Conmutación). Thus, fact 201 states:

“*…201) The defendant [Nombre015] and the indictee [Nombre035], as representatives of the Alcatel company, presented to the accused [Nombre007], in consideration of his office, a gift consisting of money, which was admitted by [Nombre007] while he remained in the exercise of his position as a public official, specifically as Deputy Head of the Direction of the Switching Department of I.C.E., a situation that generated illicit enrichment for him.*” The Illicit Enrichment charged is based, as the Public Ministry (Ministerio Público) might be posing in its accusation, first, on having been the subject of an offer of a gift, which is not a specific and specializing element of the crime charged, but of some other criminal figures, such as, for example, the crime of Bribery (Cohecho). As postulated by the defense, there would be a need for the accusation to contemplate the specializing elements of Illicit Enrichment every time the act carried out by the defendant is described, on the various occasions on which said criminality may have taken place. That is, each time an offer of a gift occurs, there should also be the imputation of the correlative acceptance. In a word, for the criminal imputations to be complete, they should be described in this manner each time a new act of Illicit Enrichment is attributed to the defendant. Furthermore, the crime of Illicit Enrichment requires that the accusation describe that the presentation of the gift is made in consideration of the office of the person who is a public official, since the gift by itself is already an objective requirement of the criminal definition of various offenses such as improper bribery (cohecho impropio), proper bribery (cohecho propio), or the same acceptance of gifts for an act performed, for example. Hence, the accused fact and the eventual actus reus (tipicidad) of the conduct that could derive from it are not clarified with the required precision. In facts 203, 208, and 210 this deficiency is again noted:

“*Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre015] and [Nombre035] presented to the accused [Nombre007] a gift consisting of investment certificates Nos. [Valor040], [Valor041], [Valor042], and [Valor043], all issued to bearer on December 10, 2001, with an expiration date of January 11, 2002, from Banco Cuscatlán of Costa Rica, each for ten thousand dollars ($10,000), for a total of fifty thousand dollars ($50,000), and their interest coupons for one hundred eighty-two dollars and ninety-five cents ($182.95)*”.

*In fact 208 it is charged:* *“Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Nombre015] and [Nombre035] presented to the accused [Nombre007] a gift consisting of bearer investment certificates from Banco Cuscatlán of Costa Rica No. [Valor044], [Valor045], [Valor046] for the respective amount of ten thousand dollars ($10,000), five thousand dollars ($5,000), and five thousand dollars ($5,000), and their corresponding interest coupons for the total sum of $53.17.”* *In fact 210 it is charged:* *“Without specifying a date, but between December 17, 2002, and January 21, 2003, the corrupters [Nombre015] and [Nombre035] presented to the accused [Nombre007] a third gift consisting of bearer investment certificates from Banco Cuscatlán of Costa Rica No. [Valor047], [Valor048], [Valor049] and [Valor050], each for the amount of ten thousand dollars ($10,000) for a total of forty thousand dollars ($40,000), and their respective interest coupons for a total of $100.80., which was accepted by the accused [Nombre007] and he disposed of it in the following manner:..”.* In this regard, the defense counsels for the defendant [Nombre007] indicate that the preceding description does not contain the necessary requirements for the objective and subjective actus reus (tipicidad objetiva y subjetiva) of the charged illicit act, so that, eventually, the accused facts would become atypical by not establishing what, how, and in what manner the behavior attributed to the defendant was carried out. On the one hand, taking into account that we are dealing with an intentional conduct in which the person presenting the gift does so in consideration of the office of the official receiving and accepting it, there would be a need to describe the circumstances in which this knowledge plays a role, beyond admitting that such an element would be deduced from the position that [Nombre007] held at ICE. This second condition of the typical fact is also intentional, and requires that the active subject know the reason motivating the presentation of the gift. As well expressed in the dissenting vote (voto salvado) of Judge Camacho, the criminal definition of Illicit Enrichment can be fulfilled through two alternative conducts: i) the acceptance of an offered gift and ii) the acceptance of a presented gift. These are, in effect, two possibilities for the actus reus (tipicidad) of the fact, which must be differentiated to clarify what is attributed to the active subject, who is, in effect, a public official, and is the object of these offers in consideration of said position. It is for this reason that, determining the scope of the prohibition, the active subject who enters into material possession of the gift that is placed in his presence by another subject would fulfill the criminal definition; but the active subject who agrees to receive in the future the gift that another subject has committed to give him would also be punishable. As can be seen, the criminal figure is complex, requiring the demonstration of these alternative circumstances, in order to establish the conditions of the attributed fact. However, as Judge Camacho correctly points out in his dissenting vote, these are two facts that do not have the same legal significance (cf. Dissenting Vote of Judge Camacho, folios 2013 to 2015). The receipt of the gift has different consequences in these alternative typical conducts: in the case where it is consummated by the mere acceptance of the offered gift, it is not necessary to demonstrate the receipt of the gift itself, since consummation occurs with the “acceptance.” In the other case, precisely the consummative phase requires that there be a demonstration of the receipt of the gift. In this regard, the dissenting vote holds the following considerations, which this Chamber endorses:

“*The receipt of a gift from an offer previously accepted and the acceptance of a presented gift do not have the same legal meaning. In the first assumption, it is an irrelevant act of exhaustion (agotamiento), and the second assumption is the act that consummates the crime. All elements of the criminal definition must be present at the moment of consummation. It is at the moment of consummation that the active subject must be a public official, that the gift must be presented and offered to him in consideration of his office, and additionally, the official must remain in the exercise of the position at that moment. In the assumption of the typical conduct of “acceptance of a presented gift,” all the cited typical elements must be fulfilled when the active subject enters into possession of the gift. In the assumption of the typical conduct of “acceptance of an offer of a gift,” all the typical elements must be present when the acceptance occurs, but it is not necessary for all the typical elements to be present when the active subject enters into material possession of the gift, which, as we have seen, is an irrelevant act, a moment at which he could have ceased to be a public official, and that would in no way affect the actus reus of the conduct at the moment of consummation (acceptance of the offer). It is for the foregoing reason that it is essential to determine in each case the specific conduct carried out by the active subject in light of the criminal definition of illicit enrichment*” (Dissenting Vote of Judge Jorge Camacho, folio 2015).

In the case of the facts attributed to [Nombre007], we would be, then, in the presence of an accusation for an incomplete fact, which does not satisfy all the elements of the objective definition (tipo objetivo) and leaves the subjective element of the fact without substance, both for the one who offers and the one who accepts the gift. It is considered, of course, that Illicit Enrichment is a subsidiary criminal figure, and that it comes into consideration given the difficulty or impossibility of demonstrating other figures against the duties of public function, but in this specific case of the criminality attributed to [Nombre007], that subsidiarity cannot be found, not only because the accusation remains at the mere fact of the offer of the gift, and does not elaborate, with sufficient evidence, the other typical considerations of the punishable act. Moreover, the accusation leaves to a judicial elaboration the requirements for framing the punishable conduct that are not in the prosecution's hypothesis and that must arise from an effort of elucubration that conflicts with the limits of judicial work imposed by article 39 of the Political Constitution. The defects of the accusation lead to preventing the attribution of criminal conduct to [Nombre007], no matter how much evidence is available of the sums of money offered or received. It is for this reason that the conviction judgment against [Nombre007] for one crime of Illicit Enrichment would have to be annulled, for not having charged and proven the elements of the alternative objective and subjective actus reus attributed to him; and it is appropriate, in such a case, to acquit him of all penalty and responsibility for the crime of Illicit Enrichment, reclassified, for which he was convicted. **2)** Offense against the principle of *in dubio pro reo*, since it is not possible to know which gift the Court grants the virtue of conferring the condition of being an “acceptance of a presented gift” that has specific characterizing elements that should have been charged and proven by the court of merit. In the fourth ground on procedural form of the appeal of attorney Wilson Flores, an infringement of the principle of *in dubio pro reo* is challenged, since the court, in addition to substantially modifying the accused facts, convicts the defendant for an Illicit Enrichment that includes the payment of a gift divided into a payment in three installments. **The point raised implies a violation of the principle of correlation between accusation and judgment**, and implies a contravention of the provisions of articles 9, 363 paragraph b and 369 paragraph d, all of the Code of Criminal Procedure, a judicial action that is punishable by nullity. According to the appellants, it is not known with scientific certainty which of the three gifts that were offered to the defendant was in consideration of his position as a public official, that is, as Deputy Head of the Direction of the Switching Department of the Costa Rican Institute of Electricity (Instituto Costarricense de Electricidad) and while he was exercising the same. This last point, because as set out in the preceding analysis, each acceptance of a gift would constitute an independent fact, and, by all indications, the fact contemplated as 201 would not cover the three gifts that, according to the accusation, Mr. [Nombre007] received. The underlying thesis of the appeals of attorneys Flores and Merayo would entail accepting that if one of the gifts described in fact 201 retains its typical materiality, the other two would be atypical, and it would be necessary to acquit the defendant for their commission. The surviving conduct, if it indeed maintains the requirements of actus reus, would have evidentiary problems, which would prevent knowing which of the gifts, specifically, was received while the defendant was a public official. Along with this, there is a significant area of doubt, since it is not known what type of behavior Mr. [Nombre007] was expected to display. A first hypothesis would imply that he was expected to perform an act proper to his functions. A second hypothesis would consist of the hope that [Nombre007] would omit an act proper to his functions. If this were the case, the applicable actus reus to the behavior of [Nombre007], in both hypotheses, would correspond to a criminal definition different from that contained in article 346, paragraph 3). The same would happen if the expected act of [Nombre007] was that he would delay an act corresponding to his functions or perform one contrary to them. An additional hypothesis is also acceptable, and that is that the gift was intended as a reward for an act performed or omitted. It would also not be out of the picture that [Nombre007] was accused of, in abuse of his position, having compelled [Nombre015] or [Nombre035] to give or promise a gift. This last case also corresponds to a different imputation from Illicit Enrichment, strictly speaking. The solution proposed by the majority vote seeks, then, to concentrate the illicit enrichment into a single offer with a gift in three installments. This circumstance, in effect, was not included in the accusation. The Public Ministry accused three independent crimes without characterizing elements, and in Recital XII (Considerando XII) of the Judgment, on “Description of the conduct of the accused [Nombre007],” it was stated:

“*190) The defendant [Nombre015] and the indictee [Nombre035], as representatives of the Alcatel company, presented to the accused [Nombre007], in consideration of his office, a gift consisting of money, which was admitted by [Nombre007] while he remained in the exercise of his position as a public official, specifically as Deputy Head of the Direction of the Switching Department of I.C.E., a situation that generated illicit enrichment for him. Said gift was paid in three installments.*” This, without a doubt, transforms the accused fact, trying to accommodate the circumstance of the gifts and the absence of specializing elements for each one of them, to involve a fact that surprises the defense, in the sense that it convicts for a gift in installments that [Nombre007] would receive for the performance of activities or omissions that are not clarified, as well as the conditions within which the payment in installments would be explained. This latter point does not align with the circumstance accepted by the majority court that convicts the defendant for “acceptance of a presented gift,” which is a different fact and requires the demonstration of different characterizing elements that have not been proven, and much less attributed to the defendant. It is true that the Court, in application of the principle of favorability, preferred to convict for a single act of Illicit Enrichment; however, despite this, the imputation of a single offer of a gift does not allow one to know which one it is, as explained in the preceding section, and could lead one to think of the actus reus of different criminal facts where a gift is an element to take into consideration, as is the case of proper bribery (cohecho propio), improper bribery (cohecho impropio), acceptance of gifts for an act performed, and the same penalty for the corrupter. It is for this reason that, for this reason as well, there would be no basis to convict the defendant [Nombre007], and there would be sufficient reason to declare the nullity of the judgment, insofar as it holds the defendant as the responsible author of a crime of Illicit Enrichment, by reclassification. **A) Regarding the conviction on personal costs imposed on the defendant [Nombre007].** Attorney Wilson Flores challenges that the judgment incurs the defect of lack of reasoning on this aspect, and thereby violates the provisions of articles 142, 363 paragraph b and 369 paragraph d, both of the Code of Criminal Procedure, an aspect punishable by nullity. The fifth ground of the appeal of attorney Nazira Merayo pronounces in the same sense.

**They begin their argument with what was raised regarding the personal costs (costas personales) imposed on [Nombre007], without any evidentiary basis regarding his solvency**. Regarding the issue of costs, the judgment states: "Given the proven economic solvency of the convicted individuals [Nombre004], [Nombre001], [Nombre018], and [Nombre007], who opted for legal counsel from the Public Defense lawyers of the Judicial Branch, in accordance with articles 152 of the Organic Law of the Judicial Branch and 265 of the Criminal Procedure Code, each must pay the fees of the professionals who have assisted them during this process. This item is set at the sum of TEN MILLION COLONES, covering their professional performance from their appearance until the issuance of this ruling, but not any eventual appeals and other procedures required after its issuance. Said sum must be paid by each of the defendants to the Judicial Branch within fifteen days following the date the judgment becomes final, with the corresponding seizure and auction of their assets in the event of non-compliance with this obligation." In this regard, it indicates that the judgment does not state how it reached the conclusion of the effective economic solvency of [Nombre007], which leaves the ruling unfounded in this respect, because even though the personal freedom of the defendant is not affected, the judgment must be self-sufficient in its reasons regarding the impact on the defendant's assets. **This aspect must be granted.** Indeed, the judgment does not have an adequate reasoning for the economic condition of the defendant and the reasons why he should pay for the judicial services of the public defenders who have represented him. This aspect, of great importance for the case, required a detailed reasoning that allows understanding why [Nombre007] must assume these costs of the proceeding against him. By virtue of this, and because the judgment lacks sufficient reason in this regard, its annulment regarding the issue of costs must be declared. **B. Forfeiture (Comiso) of the Suzuki Grand Vitara XL vehicle, license plate No. [Valor032].** The defendant was sentenced, as a consequence derived from the punishable act, to the forfeiture of a vehicle, specifically a Suzuki Grand Vitara XL, license plate No. [Valor032], for which there is no reasonable determination in the judgment that such vehicle was acquired with money from the illicit activity under investigation or is a direct product of the criminal activity undertaken. **The appellants are correct regarding the issue of the forfeiture of this vehicle.** It is observed that the resolution of this point is unfounded, which in principle warrants its annulment for a new substantiation; however, by virtue of the way in which the other issues raised in relation to [Nombre007] have been resolved, a remand is not appropriate and, on the contrary, based on the provisions of the third paragraph of article 465 of the Criminal Procedure Code, in this appeal venue it is appropriate to amend the issue raised. It has not been possible to determine that the vehicle in question was acquired with money from the alleged illicit activity of [Nombre007]; the mere circumstance that the defendant held ownership of this vehicle is not sufficient to prove that it was acquired with money from illicit activities. Consequently, it is appropriate to grant the ground for challenge, order the annulment of the forfeiture (comiso), and the return of the vehicle to the person from whom it was seized.

X.- THE APPEAL FILED BY DEFENDER MARIO NAVARRO ON BEHALF OF THE ACCUSED [Nombre009] IS RESOLVED.- Mr. Mario Navarro filed a cassation appeal on behalf of his client [Nombre009], but also starting from folio 172091 and concluding at folio 172271 of Volume XXXVIII, based on articles 39 and 41 of the Political Constitution; 1, 142, 184, 363, 367, 437, 438, 439, 447, 458, 459, and 460 of the Criminal Procedure Code, Transitory III of Law No. 8837 on the Creation of the Sentence Appeal, and within the two-month period granted by the Third Chamber of the Supreme Court of Justice, filed an APPEAL against judgment 167-2011 issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, at three o'clock in the afternoon on April 27, 2011, which convicted his defendant for three crimes of Penalty of the Corruptor for Aggravated Corruption in the modality of Improper Bribery, imposing a total of 15 years of imprisonment. In this appeal, Mr. Mario Navarro Arias includes two new grounds based on form, regarding the alleged incorporation of illicit evidence into the ruling, as well as for disagreement with the determination of the facts. In the same way, he adds a new ground directed against the scant reasoning of the sentence imposed on his client, as well as three grounds in relation to the civil aspect of the judgment. Of the issues proposed by Mr. Navarro, representing the defendant, this Chamber proceeds to resolve the grounds that by themselves imply the annulment of the judgment and the acquittal of Mr. [Nombre009] for three crimes of Penalty of the Corruptor for Aggravated Corruption in the modality of Improper Bribery. **Section One.- Defects that by themselves imply the annulment of everything resolved. A. Spurious Evidence.** In the first ground based on form of Mr. Mario Navarro's appeal on behalf of [Nombre009], the incorporation of illicit evidence and the consequent violation of due process is alleged. He indicates that the illegality of documentary evidence number 588 has been insisted upon, which is a certified copy of the Judicial Assistance from the Republic of Panama, sent via 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 of the Panamanian company Marchwood Holding, would be tainted for several reasons: 1. It was brought into the process at the instance of the Public Prosecutor's Office without a prior judicial order. 2. The banking documentation was obtained from the so-called "CAJA-Fischel" case, case file No. 04-005356-0042-PE, where, as the banking secrecy had not been lifted, the Third Chamber of the Supreme Court of Justice, by resolution number 2011-00499 at 11:45 a.m. on May 11, 2011, by majority, granted the appeal filed by the defense, decreeing the nullity of the evidence gathered in Panama, and all the evidentiary elements that depend on it. 3. By virtue of the fact that the chain of custody was violated, as the content of said evidence was leaked to the press long before the intervening parties in the process became aware of it, so much so that in the newspaper "La Nación" on September 8, 2004, visible at folios 2 and 3 of Volume I, the public is informed of its content. In the same vein, and for greater clarity, it refers to the accused fact number 190, where the Public Prosecutor's Office expressly alludes to the publication made in "Telenoticias" in the first days of September 2004, which indicates that as a result of the evidence gathered in Panama, it was discovered that the Company Servicios Notariales Q.C. deposited large sums of money into the account of Marchwood Holding Company. Regarding what was indicated about the illegality of evidence 588, it is considered that the lifting of banking secrecy was not ordered by a competent judge, and, consequently, there was also no reasoned resolution evaluating said diligence prior to its execution. The Trial Court rejected the defective procedural action filed by the defense, indicating that the order to lift banking secrecy was not necessary, given that [Nombre032] himself, a co-accused in the Caja-Fischel case and a witness in the sub judice, had given his consent for said evidence to be gathered. The appellant believes that the authorization given by [Nombre032] would cover the elements of said evidence that affect his own interests, but in no way can it authorize the impairment of the fundamental rights of the remaining accused. As Mr. Navarro analyzes it, Law No. 7425, Law on the Registration and Seizure of Private Documents and Intervention of Communications, in its article 29, clearly establishes that "There shall be no illegitimate intrusion when the holder of the right expressly grants consent. If there are several holders, the express consent of all must be obtained." Furthermore, if hypothetically [Nombre032] were authorized to grant that consent, it is clear, according to his point of view, that said assent must have been prior and not subsequent. He cites in support of his thesis the doctrine of Prof. Francisco Castillo, in his text "Derecho Penal. Parte General, p. 366, quoted, in turn, by the dissenting opinion. With support also in Voto 111-1993 of the Third Chamber, at 8:40 a.m. on March 26, 1993 (which has doctrinal references to Bacigalupo, who also refers to Schmidthäuser), he insists that the consent must be prior to the injury of the legal right. Based on this doctrinal assertion, he says that the evidence argued to be illegitimate was obtained in September 2004, and it is not until May 2010, according to document no. 759, that Mr. [Nombre032] "validates" with his consent the illegally obtained evidence in Panama. This consent, then, cannot conceal the constitutional injury committed in relation to the rights of the other co-defendants. If the consent of all the affected parties was not obtained, an express order from a competent judge should have been requested to order the lifting of banking secrecy, which evidently did not occur, hence the irregular action of the Public Prosecutor's Office. As it was evidence 588 that allowed the detection of the existence of Servicios Notariales Q.C. S.A., as is evident from the reading of accused fact number 190, and from there request the lifting of banking secrecy in relation to that corporation, as is evident from documentary evidence numbers 86, 87, 90, and 91, outlined by the Public Prosecutor's Office in its prosecuting brief and used as an essential basis for issuing the judgment. Both the request and the orders for lifting secrecy would be, as the challenger postulates, devoid of evidentiary validity. The same happens with the evidence obtained through Banco Cuscatlán, as well as all that which is linked to documentary evidence number 588 and refers to Servicios Notariales QC S.A. On the subject of illicit evidence and its problematic, he cited several jurisprudential precedents from the Third Chamber and the Constitutional Chamber, which emphasize the need to obtain the investigation of the real truth through a fair trial, based on legitimate evidence, which will be assessed by the judges. He also reviews the criterion of the Third Chamber regarding the banking evidence obtained in the Caja-Fischel case and deduces that one is in the presence of an absolute defect that has been ignored by the intervening authorities in the cause known as Caja-Fischel. He considers, therefore, that the direct request from the Costa Rican Public Prosecutor's Office to the Attorney General's Office for it to obtain the evidence, without the intervention of the Guarantee Judge, is inadmissible. In this regard, he considered the emphasis made by the Costa Rican legal system in entrusting the judge with the final decision when fundamental rights of citizens are at stake, especially when the right to privacy, the secrecy of communications, or the inviolability of private documents is going to be affected. The Chamber stressed the need, in accordance with ordinary legislation, to review that the order was substantiated, as well as to individualize the documents on which the order would fall, the name of the person holding them, and the place where they are located. Regarding the criminal activity, it would be essential to assess the verified indication regarding the commission of the act and the weighing of the extremes of the principle of proportionality. The request, as it was formalized by the Costa Rican Public Prosecutor's Office, failed to comply with a requirement that was not a mere formality but was a primary element to allow, under domestic law, the intrusion into the private sphere of a person. The Chamber includes a list of a series of norms of the legal order that would require said judicial intervention. Among them, 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 contained in articles 2 and 3 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications and 107 of the Organic Law of the Judicial Branch. This implies, states the Chamber, that articles 226 and 290 final paragraph of the Criminal Procedure Code, establishing the possibility that the Public Prosecutor's Office requires reports from private persons or public entities, in accordance with what is stipulated, as long as it is not private information protected by article 24 of the Constitution; otherwise, there would be, pursuant to the second paragraph of article 181 of the Criminal Procedure Code, a violation of the right to the inviolability of private documents. He insists that the Mutual Legal Assistance Treaty is an instrument to strengthen and facilitate the cooperation of justice organs in the region, but such cooperation must be carried out with full respect for the domestic legislation of the member countries. The streamlining of procedures could not be, the ruling of the Third Chamber maintains, a way to promote arbitrariness, arrogance, or disrespect for constitutional guarantees and the current internal order. He assures that an ultra-condemnation cannot be reached but rather one that results from a correct introduction of evidence into the process, in accordance with the Constitution and the law in force in the country, and, in its assessment, with strict adherence to the rules of sound criticism. He finally considers, after making some evaluative and doctrinal comments, that the Assistance Treaty is not above the Political Constitution. Therefore, obtaining the evidentiary elements that were brought into the criminal process against [Nombre032] and the other co-defendants, through letters rogatory to Panama and their extensions, without observing the constitutional and legal guarantees that govern to be able to request their obtaining under Costa Rica's internal order, constitutes spurious evidentiary elements, illegitimately incorporated into the process. And through the defective procedural action of an absolute nature, their ineffectiveness is declared, as well as the other evidentiary elements derived directly from them, specifically: the documentary evidence obtained through the Letters Rogatory to Panama and their extensions, the investigation statement of [Nombre032], insofar as it is based on the Panama evidence, among other considerations of interest. The challenger requests that the ground for appeal be granted and that the nullity, the ineffectiveness of the evidence gathered in Panama through the Mutual Legal Assistance Treaty in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama be decreed, as well as all the evidentiary elements directly dependent on it, and, by virtue thereof, as the accusation lacks evidentiary basis, his defendant [Nombre009] be acquitted of all penalty and responsibility for the acts attributed to him and his immediate release be ordered, given that it is unnecessary to remand the process to a new trial under the terms established in the law regulating the appeal of sentences. **He is correct in his claim.** The arguments to analyze this legal problem have already been explained further above, when resolving the appeal filed by Dr. [Nombre012] (A-1). Therefore, the same effects that this determination had for the defendant [Nombre012] must be applied to the defendant [Nombre009], the nullity of documentary evidence No. 588 and all evidentiary elements dependent on it is declared, the nullity of the criminal conviction judgment issued against [Nombre009] is declared, and in its place, he is directly acquitted of all penalty and responsibility. **B. Defects regarding the determination of the fact and the assessment of the evidence to determine the indications that led to the conviction for three crimes of Penalty of the Corruptor for Aggravated Corruption in the modality of Improper Bribery. 1. Violation of the principle of evidence assessment and the rules of sound criticism based on the assessment given to the statement of [Nombre026] regarding the promise that the payment would be made through Servicios Notariales Q.C. S.A. accounts.** Mr. Navarro raised this argument in both the cassation appeal and the appeal by conversion. In the seventh ground based on form, he questions that the Court in its majority opinion sustained the existence of a prior plan in which [Nombre009] participates based on the version of [Nombre026], because according to the ruling, the latter affirmed that he knew from the beginning that the promise would be paid to him through payments or transfers from the accounts of Servicios Notariales QC S.A. He refers to the cross-examination that the defense conducted of [Nombre026] regarding his knowledge of [Nombre009] and the way he became interested in this corporation. On this topic, he maintains in his brief the following: "...When [Nombre026] is testifying, this defender questions him whether or not he knows [Nombre009]. [Nombre026] answers affirmatively and adds that he met my client in the nineties, at a meeting of the Unidad Social Cristiana party, since it seemed that both were militants of that political party. When the defense of [Nombre009] confronted [Nombre026] regarding the investigated facts and their date, he answers NO, THAT IN RELATION TO THESE FACTS HE NEVER HAD CONTACT WITH [Nombre009]. And he adds in summary, KNOWING THAT THE MONEY TRANSFERS CAME FROM A BANK ACCOUNT IN THE NAME OF THE COMPANY SNQC, he undertook the task of investigating who was behind that account, and that is how HE MANAGES TO REALIZE, FIND OUT, LEARN, HAVE KNOWLEDGE, NOTICE THAT THE ONE MANAGING THAT ACCOUNT WAS my client [Nombre009]. But he never said, affirmed, or indicated that PRIOR TO THE MONEY TRANSFERS or delivery of the certificates of deposit, he had knowledge that he was going to be paid through SNQC, as the Court erroneously states, thereby violating the rules of sound criticism, particularly the principles of sufficient reason and derivation in the assessment of the evidentiary elements. This circumstance being a fundamental pillar to attribute to my client his participation in a prior plan for the commission of crimes, it is evident that the ruling presents an insurmountable defect...". He also rejects the court's thesis, adding the detail that there is also no evidence linking his client with [Nombre004] or with [Nombre001], in the sense of having met in meetings, conversations, or in any other way with them. There is no contact between them, much less before the 400-thousand-cell-line project occurred, or before the endorsement of the Comptroller General's Office was produced, or even before the contract between Alcatel and I.C.E. was finalized. He considers that the judicial conclusion harms the rules of sound criticism, not only because there are no elements to think of a possible action within that prior plan allegedly known to him, but also because the rest of the indications the court uses are ambiguous in this regard, such as, for example, the kinship between [Nombre009] and [Nombre015]. Thus, he suggests that if the false statement sustained by the Court—the one stating THAT [Nombre026] INDICATED THAT FROM THE BEGINNING HE KNEW HE WAS GOING TO BE PAID THROUGH SNQC—is hypothetically removed, it is not possible to sustain the conviction of his client as part of a prior plan established for the commission of the crimes of Aggravated Improper Bribery. He suggests, then, that if his position is admitted, what is appropriate, in application of the principle of procedural economy, is to apply the content of numeral 9 of the Criminal Procedure Code, that is, the principle of in dubio pro reo, and in that sense, abide by what most favors his client, that is, that he only made the delivery of the money without participating in the prior plan. If this is so, then his conduct is atypical for not constituting the criminality he is reproached for or, at least, acts of real favoritism that would have the consequences this Chamber decides to give them. Subsidiarily, he requests a remand for a new trial, following the ineffectiveness of the ruling in its entirety and the debate held. **He is correct in his claim.** This Chamber has attentively listened to the statement of [Nombre026] and it is observed that, indeed, he does not affirm that he knew that [Nombre009] would handle the funds he would receive as payment for the gifts that were promised to him, as the Court erroneously assesses in the ruling. In addition to this, and as has already been maintained in relation to the analysis of [Nombre026]'s statement regarding Dr. [Nombre012], the statement of this "collaborating accused" is unreliable and had to be subjected to a critical analysis of its consequences, not only because of the constant variations in the content of what happened, but also because of the significant modifications of the facts in which he incurred. His statement has already been recognized by this Chamber as unreliable, not only because of the various versions of the facts offered, but because there is certainty that his was a statement interested in achieving impunity, which should have subjected the majority court to a stricter duty to be suspicious and submit to a solid and deep criticism all independent evidentiary elements that confirmed or corroborated that, in effect, Mr. [Nombre009] was part of a prior plan to corrupt public officials of ICE. The judgment at folio 1130 and following maintains that there was a prior plan built by [Nombre015], [Nombre035], [Nombre009], and [Nombre018] to channel resources from Alcatel CIT, making its officers believe that said money was for the payment of consultancies signed with the companies Servicios Notariales Q.C. S.A. and Intelmar S.A. The majority opinion locates Mr. [Nombre009] as a key piece for the payment of the gifts, by virtue of his link to the Company Servicios Notariales Q.C. S.A.

and due to the professional and consanguineous ties with officers of that company, despite him not being the legal representative of that legal entity. The judgment manages to place him, as of August 2001 (folio 1142), as Vice President of the corporation and, therefore, involved in the payments made from that date onward. Specifically, at the time when his wife, Mrs. [Nombre074], a teacher by profession, was the owner of the share capital of Servicios Notariales QC S.A., clearly a person who had no connection with the line of business of the legal entity, and therefore a mere symbolic representative of the company. [Nombre009] is also linked to [Nombre015], since the wife of Mr. [Nombre015] is the sister of [Nombre009] (folio 1143 of the judgment). It is for this reason that the judgment places [Nombre009] in charge of the corporation's activities as of September 2001, in fact, he is placed giving instructions to the Private Banking Department, leaving Mrs. [Nombre074] as a simple front person without greater control over the activities carried out. This is why this Chamber considers that, along with the statement of [Nombre026], all these circumstances were decisive in placing [Nombre009] at the center of the executive plans for corruption of officials, making him a key piece in getting the payments to the dishonest officials. However, there is no proof that [Nombre009] directly participated in that common plan, beyond the continuation of the consulting activities that the Corporation had already been providing for Alcatel since 1990. Consulting activities that also encompassed the management of funds, which of course involved the payments made during the period in which the intervention of this corporation for the payment of gratuities is being investigated, but also for other contracts and activities of the company that have not been alleged to be illicit. The judgment places these consulting contracts as a mechanism to conceal the real reason for which these funds were received, but the truth is that these contracts were signed at the beginning of 2001 (Fact 55 of the accusation) around the alleged devising of the corrupting plan. However, there is a continuation of the activity already being provided for Alcatel, and the judgment does not find how the continuation of that line of business of the company, which already managed millions of dollars for Alcatel, could not have received orders, decontextualized from the general corrupting plan, to honor consulting contracts, which appeared to be normal practice for Alcatel as indicated by some Alcatel official witnesses at trial, such as Mrs. [Nombre075]. In any case, the judgment is not convincing regarding the alternative thesis now offered by the defense, that [Nombre009]'s activity was decontextualized from the corrupting plan and could have been, at least, a material facilitation that was not charged. The lack of substantiation in this regard, and the support for the common corrupting plan, which is not based on more than an overall vision that the court constructed in its majority vote, is not sustained by the elements that have been evaluated, very specifically with the statement of [Nombre026], so, in application of the principle of in dubio pro reo, [Nombre009] would have to be acquitted of all penalty and responsibility for the three illicit acts of Corruptor's Penalty for Aggravated Corruption in the modality of Improper Bribery that have been attributed to him. 2. Rejection of important evidence for the technical defense of the defendant [Nombre009]. In the eighth ground as to form of the cassation appeal and in the tenth ground of the appeal filed by attorney Mario Navarro on behalf of [Nombre009], a VIOLATION OF DUE PROCESS AND RIGHT OF DEFENSE IS ALLEGED DUE TO THE REJECTION OF IMPORTANT EVIDENCE FOR THE DEFENSE. He argues that during the trial period, the company Alcatel and the Government of the United States of America, specifically the United States District Court for the Southern District of Florida, pursuant to case 1:10:CV=24620, DLG, with the Securities and Exchange Commission as Plaintiff and Alcatel Lucent S. A. as Defendant, negotiated that from December 2001 until 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 officials of the government of Costa Rica to obtain or retain three telephone service contracts in Costa Rica for an approximate amount of three hundred three million dollars. This agreement between the Government and the Company was brought to the attention of the parties by the Instituto Costarricense de Electricidad in the month of January two thousand eleven, after the holiday recess. This evidence, the defender says, was transcendent for the legal positions that had been maintained in relation to Mr. [Nombre009]. Firstly, because it unmasks the company Alcatel as a company linked to corrupting activities to achieve and maintain public contracts in the field of telephony. Secondly, it places Alcatel's activity with the facts investigated between the beginning of two thousand one and October two thousand four. Thirdly, and this is a thesis repeated throughout the appeal, that the sums received by Servicios Notariales QC S.A. did not solely originate from the 400 thousand lines contract, but also from other contracts, these lawful ones that were not related to the “400K” contract. He says that this settlement document between Alcatel and the government of the USA demonstrates what the defense maintained at trial. He maintains that the other defenders opposed this document except for the defense of [Nombre009]. The Court, however, rejects it as untimely and for not being translated. The representatives of ICE try to have it admitted, later, already translated, however, the Court rejects it as untimely. He considers, finally, that with this evidence, it is possible to sustain the defensive thesis that had been presented in debate, which distorts the version that [Nombre075] had given, who defended the Alcatel company at all times, and which was essential evidence for the conviction of his client. This evidence, in a word, as maintained by the appellant, would call into question the factual inner workings of the judgment and it could no longer be maintained that “…SNQC had received more than fourteen million dollars for the processing of the four hundred thousand cell lines and to pay bribes for that contract…” It is for this reason, and due to the injuries alleged against due process and the right of defense, by rejecting transcendental evidence, that he requests the ineffectiveness of the entire ruling be declared and a retrial be ordered. He considers that the alleged defect is absolute and did not require a prior objection. This aspect raised by the defense is, in effect, an absolute defect, and it is appropriate to declare it so, due to the injuries it implies to the right of defense at trial and to due process. The mentioned evidence, in effect, is important for discussing the status of Alcatel from a company deceived by its representatives, to a multinational conglomerate that used corrupting mechanisms to achieve its business objectives. The settlement with the Government of the USA was of interest both for establishing the facts in relation to the intervention of Servicios Notariales QC S.A. and the management of funds carried out during the time of the investigated facts, but also regarding the possibility that the factual vision presented by the defense had solidity. That is, that there were lawful contracts, processed in advance and justified in the line of representation, advisory, consulting, and administration carried out by this corporation for Alcatel, which brings elements for discussion of great relevance and that should have been analyzed in detail by the ruling in question. The non-admission of this evidence for better provision, duly translated, and not previously known, since it was generated at a stage of the process that the parties could not control, was relevant to the interests of the defense and should have been admitted by the trial court. It is for this reason, that on this ground the conviction judgment must also be annulled in relation to [Nombre009]. 3. Erroneous application of Substantive Law. Violation of the Principle of Legality. In the twelfth ground of appeal by attorney Mario Navarro, an incorrect application of the substantive law is raised in relation to the alleged criminality carried out by [Nombre009] in relation to the co-defendant [Nombre001]. He begins his argument by transcribing Facts number 128, 129, 130, and 131.

“ 128) The accused [Nombre001] began working at the end of the year 2000 for the I.C.E., as an Executive Assistant of Superior Administration in the Executive Presidency, an appointment that was formalized as of January 1, 2001. 129) Within his functions, he was responsible for attending to specific matters of the Executive Presidency such as, analyzing documents submitted for the knowledge and approval of the Executive President, providing advice and recommendations on these, coordinating with the different dependencies of the Institute matters related to the execution of projects and guidelines, coordinating and participating in the special commissions formed, collaborating in the preparation and implementation of programs and projects promoted by the Presidency, and representing the I.C.E in different governmental and non-governmental organizations, related to the field of electricity and telecommunications. Also, within the projects he was in charge of, the abbreviated procedure 1-2002 for the leasing of the 400,000 GSM cell lines stood out. 130) From his entry into the institution, the accused [Nombre001], as assistant to the Executive Presidency, became the person in charge of accelerating matters related to the topic of telecommunications. Subsequently, the accused [Nombre001] was appointed to preside over a high-level commission composed of an interdisciplinary group of professionals who had under their responsibility the study and execution of the 400,000 thousand lines project, together with [Nombre027], member of the Board of Directors and the officials [Nombre061], manager of the Business Unit for Mobile Services, and [Nombre052] in his capacity as Executive President. 131) Without specifying a date, but in the period between the end of the year 2000 and the beginning of 2001, the defendants [Nombre015] and [Nombre035] asked the accused [Nombre001] to carry out the necessary actions within the scope of his functions as advisor to the Executive Presidency of the I.C.E., and person in charge of the execution of the 400,000 lines project, to make said contracting effective by favoring Alcatel; in exchange for the above, [Nombre035] and [Nombre015] promised [Nombre001] the delivery of a gratuity consisting of money, the exact amount of which was not set at that time. Said promise was accepted by the accused [Nombre001], it was also agreed that the delivery would be conditional upon the effective awarding of the offer that Alcatel would present to the I.C.E. 132) For having fulfilled the defendant [Nombre001] with the agreed actions, once he, together with other I.C.E. officials, managed to open the tender for the purchase of cellular telephony and the awarding of the contract for the 400,000 GSM lines in favor of Alcatel, as previously agreed with the defendant [Nombre015] and the indictee [Nombre035], he received the promised gratuity corresponding to a percentage of the contract that Alcatel obtained with the I.C.E. , a payment that was made in a segmented manner through the intermediation of the co-defendant [Nombre009] with the funds originating from Alcatel Cit".

It is based on these facts that have been taken as proven, that [Nombre009] is attributed the commission of a crime of corruptor's penalty for aggravated corruption in the modality of improper bribery, in relation to [Nombre001]. As already analyzed when hearing the appeals on behalf of [Nombre001], it is not known with any certainty what were the supposed actions that were asked of [Nombre001] to carry out with the objective of achieving Alcatel's objectives in the 400 thousand cell lines contract, so the criminal participation of [Nombre009] in the act attributed to [Nombre001] is, at least, uncertain and improbable. This ground must be upheld. As analyzed profusely when hearing said appeal on behalf of [Nombre001], the awarding procedure was pristine and in accordance with the law, and the intervention of [Nombre001], due to his field of experience and expertise, had nothing to do with the technical and legal aspects that could have a final impact on the granting of the 400 thousand lines to Alcatel. In fact, and as this Chamber analyzed previously, it is not known what role [Nombre001] was expected to perform in relation to the internal decision-making procedure at ICE, nor about the form and content of an abbreviated procedure that, in essence, was not favorable nor did it provide certainty to Alcatel. For this company, the direct purchase procedure was more convenient, in terms of the certainty of its participation. [Nombre001] was in charge of coordination functions that had nothing to do with the direct purchase process, and as was observed in the succession of decisions by the Board of Directors of ICE, the path towards an abbreviated procedure was defined by the Contraloría General de la República and not by ICE. The admission made by [Nombre001] of having received funds from Alcatel does not allow for determining, either, if said sums were delivered rather as payment for an act proper and concrete to his functions. The uncertainty in this regard opens a great number of possibilities of criminal classification ranging from the receipt of gratuities for an act performed to Illicit Enrichment itself, but not necessarily to improper bribery. That concrete act that was asked of [Nombre001], as interpreted by the appellant, was not pointed out in a clear, precise, and concrete manner by the court. If this is so, and there is no precision about the fact, there would also be doubt as to whether [Nombre009] was responsible for the crime of corruptor's penalty, since both facts are intimately related, and it is for this reason that he must be acquitted of all penalty and responsibility for the facts attributed to him in relation to [Nombre009]. 4. Forfeiture in favor of the State of various properties. In the third ground as to form of the cassation appeal by attorney Mario Navarro on behalf of the accused [Nombre009], an ERRONEOUS AND INADEQUATE SUBSTANTIATION IS ALLEGED. VIOLATION OF DUE PROCESS AND THE RIGHT OF DEFENSE DUE TO ERRONEOUS APPLICATION OF ARTICLE 110 OF THE PENAL CODE. The judgment decrees the forfeiture of the following properties:

A.4) Partido de Heredia registered under the Folio Real system, Registration N° [Valor025], Sub-Registration [Valor018] in the name of the company Punto de Negocios LQC Sociedad Anónima. Company belonging to the accused [Nombre009] who proceeded to provide it with the illicit funds originating from Alcatel Cit, and with those funds he carried out various banking transactions and businesses of different kinds, such as the purchase of the described property.

• 4)Of the shares of [Nombre009] in the company La Selva de La Marina S.A., owner, among others, of the properties registered in the Public Registry under the Folio Real system Registration N° [Valor030], Sub-Registration [Valor018] and Registration N° [Valor031], Sub-Registration [Valor018]. Real estate properties that were acquired with illicit funds originating from Alcatel Cit.

According to the appellant, the court omitted to substantiate and reason why it considered that these assets came from the illicit activity supposedly attributed to the defendant. In a word, the causal link between the commission of the act and the assets upon which the forfeiture will fall is not demonstrated. In the same way, there must be certainty that there is no third party or the accused himself with rights over said assets. According to the challenger, from the economic studies carried out, it can be deduced that there would be rights of other persons over the mentioned assets:

“…And it is that as indicated in its point 4.4 of the Expert Report N° 202-DEF-445-05/06 (Evidence N° 619) the company Punto de Negocios LQC S.A was incorporated on April 8, 2002 by the accused [Nombre009] and [Nombre076], before Notary [Nombre077]. The share capital was made up of the sum of one million colones represented by one hundred common, nominative shares of ten thousand colones each, of which [Nombre009] subscribed 99 shares and the partner [Nombre076] one share. According to a notarial certification of 2:00 p.m. on January 27, 2003, [Nombre009] holds the position of President with Judicial and extrajudicial representation of the company Punto de Negocios LQC, S.A. A company that is registered in the Mercantile Section of the Public Registry at folio 196 of volume 1497, entry 98. See Annex 13 of report 202 folio 170.

And in point 4.3.1 of the same report, it is indicated by the experts of the Economic and Financial Crimes Section that it was corroborated that the Company Selva de La Marina, legal identification number N° 3-101- 345347 was incorporated on May 5, 2003 by [Nombre078] and [Nombre079] before the Notary Office of [Nombre077]. The share capital was established in the sum of 50,000,000.00 million colones represented by 50,000 shares of one thousand colones each, of which Mr. [Nombre078] subscribed 49,999 shares of one thousand colones each and [Nombre079] one share of one thousand colones.

It is from the same evidence incorporated into the adversarial proceedings, that it is easily inferred that the assets whose forfeiture the Court is ordering, are duly registered in the name of corporations in which, apart from my client, there exist other "partners" with an interest in them. Jurisprudence and doctrine have determined that the Court ordering the forfeiture must be "very cautious and zealous at the time of adopting such a decision" so as not to affect the rights and guarantees, not only of the accused, but also those of third parties unrelated to the process. Also, that, "in order not to affect the rights of all those persons who have no relationship with the illicit act", mere probability or presumption is not sufficient, rather "absolute certainty is required, so as not to violate the principles that inform due process, such as: the principle of legality, of innocence, of defense, of fair trial, of guilt, etc.", as has been ordered by the Third Chamber of the Supreme Court of Justice in judgment 865-97 of 10 hours 20 minutes of August 22, 1997…” In support of his thesis, he cites a precedent of the Court of Cassation, Vote No. 00377 of 13 hours 45 minutes of November 16, 2010, which maintains the necessity of establishing the causal nexus existing between the assets upon which the forfeiture falls and the commission of the punishable act. In the same sense, he estimates, the Third Chamber of the Supreme Court of Justice pronounces, when in its Vote No. 00121 of 2010, after entering into some considerations on forfeiture and its legal nature, that its issuance requires a solid substantiation according to articles 142, 143, 363 subsection b) and 369 subsection d) of the Code of Criminal Procedure. He points out that there is no such solidity in the substantiation of the ruling under examination, it is not observed what the argumentation followed by the Court was to decree the forfeiture that so affects the interests of the defendant as well as those of third parties, which the ruling itself recognizes existed. This ground must be upheld. The Court does not explicitly state the connection of the assets it decrees for forfeiture with the illicit activity of [Nombre009], nor whether there were rights of third parties over them. There is also no certainty whether these properties were acquired with funds from Alcatel, or if the course of their acquisition was made with other assets originating from the defendant's professional activity or line of business. The latter, because the source or origin of the acquisition of these properties and assets in general could come from sources independent of those investigated in the case. There are elements that allow us to suppose there was a relationship between Alcatel CIT and Servicios Notariales QC S.A. since the year 1997, which proceeded from the development of contractual consulting activities that have not been questioned.

The sources of acquisition of those assets could, then, be part of the lawful activities that were carried out in years prior to the period investigated in this case. In other words, in order to decree the confiscation (comiso), there would need to be adequate substantiation in the judgment demonstrating that the source of acquisition of these assets proceeds from the corrupting activity that the majority vote attributes to Alcatel and that it proceeds, presumably, from the criminal plan developed by [Nombre015] and [Nombre035]. In the same manner, it must be demonstrated that all of the flow of money, or part of it, comes from a crime, and if so, whether those economic flows were used to purchase those assets now being confiscated (comiso). In the same manner, that such a decree does not affect the rights of those persons who have no relationship with the illicit activity. In this regard, and rightly so, the appellant points out that there were economic movements that reached the assets of Bufete Valerio Casafont, and said movements were not classified as illicit, and their source was Servicios Notariales QC S.A. In other words, what was paid to this firm should be considered, therefore, a lawful activity whose source of payment is the funds that Servicios Notariales QC managed for Alcatel CIT. Furthermore, citing Article 110 of the Penal Code is not sufficient substantiation for a confiscation (comiso) of such proportions, without even leaving a record of the certainty of the origin of these assets from the criminal dealings of the defendant. The defense's thesis is also supported by the demonstration made of payments of large sums to Macro Investment or to Tele Investment that also come from the accounts managed by Servicios Notariales QC S.A., as was demonstrated at trial with the aid of EVIDENCE 619, Expert Report No. 202-DEF-445-05/06 from 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 bundles of evidence: 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, No. 7 with 251 folios. According to the appellant, with these elements the entirety of the origin and destination of Alcatel Cit's money, delivered by [Nombre009] to the defendants in the case, is verified, but the Court did not take care to analyze this evidence, and, disregarding that it was private funds managed by the company Servicios Notariales Q.C., decreed the confiscation (comiso) of two assets, specifically the PERCENTAGE IN A COMPANY CALLED LA SELVA DE LA MARINA and a dwelling belonging to PUNTO DE NEGOCIOS LQC S.A., acquired with funds that have nothing to do with THE OBJECT OF THE CRIME OF IMPROPER BRIBERY (COHECHO IMPROPIO). It is for the foregoing that the confiscation (comiso) of the described assets must be revoked and it is appropriate to order the competent court to return the confiscated properties and shares. **5. The questions regarding the issues derived from the civil actions filed against the defendant.** The appellant, also acting in the capacity of 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, based on the cited regulations, within the same legal timeframe READAPTED THE ADHESION ALREADY FILED IN ITS PROCEDURAL MOMENT, to an appeal, and added several grounds regarding the civil aspect of the judgment. A first argument concerns the lack of reasoning regarding the rejection of the award of costs in the following terms. FIRST GROUND OF APPEAL ON THE CIVIL ISSUE. Lack of reasoning regarding the rejection of the award of costs. This violates the provisions of articles 39 and 41 of the Political Constitution, 363 and 369 of the Criminal Procedure Code. It raises a second ground, which has to do with the fact that its clients have had to endure a seven-year process, with civil claims and seizure of assets. Thus, it is not that there were no vanquished or victors, but on the contrary there are individuals who have had to endure the condition of defendants for a long period of time. That is why it demands that the conduct of the civil plaintiffs should have had consequences. It rejects that one can speak of plausible reason to litigate, if the causal link between the charged facts and those civil claims could never be established. It was proven that its clients did not receive funds from ICE or any other public institution. They were private funds. That is why it requests that the civil plaintiffs: Instituto Costarricense de Electricidad and the State be ordered to pay the costs of the process that brought the civil defendants to this stage, including the appeal. **In a third ground, it claims erroneous interpretation of article 277 of the Civil Procedure Code, regarding the compensation for damages (indemnización de daños y perjuicios).** It postulates its reasons as follows:

“…It is the criterion of this representation that the interpretation given by the Trial Court to article 277 of the Civil Procedure Code is erroneous, and the jurisprudential citation on which it supports its thesis is undoubtedly inadequate.

The judgment essentially argues that because a decision on the merits regarding the civil actions was omitted, the lifting of the decreed seizures and the rejection of the award of damages (daños y perjuicios) are in order. Considering in this regard the possibility of the parties to resort to the civil jurisdiction to settle their disputes. It being impossible to extend the scope of the cited article 277 by way of interpretation, as that would be an extensive application of a punitive norm.

In the first place, the Court's decision to grant the plaintiffs the possibility of resorting to the ordinary civil jurisdiction, presumably in pursuit of their interests, is unfortunate. That decision is admissible insofar as the plaintiff has not endured everything that the civil process within the criminal process entailed. The procedural principle of "election of jurisdiction" is unknown to the Trial Court. The plaintiffs decided to choose the civil action route within the criminal process in pursuit of their interests. So much so, that there are even cassation appeals pending from the civil plaintiffs. The fact that the Court dismissed their claims due to defects in the CLAIMS, cannot be the basis for referring the parties to a subsequent civil claim. The plaintiffs exhausted the criminal process avenue for the probable compensation; that they did not know how to do it does not give them the right to remain authorized to do so in the ordinary civil jurisdiction. That interpretation made by the Court truly violates article 2 of the Criminal Procedure Code. The Judge knows the law, and under that stance, it is evident that the Court is benefiting one of the parties to the process, erroneously, due to their poor performance…” It insists, the complaint was DEFINITIVELY DISMISSED IN SENTENCE and that is why the lifting of the seizures was ordered and, in such case, the consignment of cash to the defendants as damages (daños y perjuicios), as fixed compensation, would proceed: that is the content of the norm in question and its spirit. It emphasizes that its clients have endured seven years of proceedings, with seizures included. A tortuous process that had to wait until the end to hear, in closing arguments, the claims of the civil plaintiffs, concerning legal and natural persons who had nothing to do with public funds. Nor could the causal link be established between the civil defendants and the actions of the convicted individuals. It also questions that the door is opened for the civil plaintiffs to go to the civil jurisdiction to once again raise their claims, even though they had already chosen a forum to discuss those points. The civil complaint was rejected, except for what this Chamber resolves when analyzing the cassation grounds raised by the civil plaintiffs. Therefore, it requests that the appeal be granted for the reasons stated, that the ruling be revoked insofar as it REJECTS the fixed compensation as damages (daños y perjuicios) regulated by article 277 of the Civil Procedure Code, and that the return to the Criminal Trial Court be ordered so that it makes the disbursements to the civil defendants in the proportion corresponding to them according to the claims raised. **The issue of the award of costs and the issue of civil actions must be elucidated in a new trial in this regard.** This Chamber has already ruled on the issue of compensatory civil actions, the absence of an award of costs, and the interpretation made by the majority court on this issue, at the time of resolving the appeal by Christian Arguedas on behalf of Dr. [Nombre012]. It was considered that what was resolved on the issue was a very clear denial of access to justice based on formalities that have no basis in Article 112, paragraph d) of the Criminal Procedure Code, an error that must be corrected. The lack of a decision 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 remand trial, a decision must be made regarding the issue of costs, and whether or not there was a plausible reason to litigate: the failure to decide on the merits of the civil actions caused an error that affects the definition of the costs issue, which undoubtedly causes grievance to the parties. That is why, when resolving Mr. Arguedas's appeal, it was considered that the effects of his challenge benefit the other civil co-defendants, since it is not based on exclusively personal grounds. That is why the judgment has already been annulled in its civil aspect, insofar as it ordered to omit a ruling regarding the substantive right discussed in relation to the civil actions brought, as well as what was resolved on costs, and the remanding of the process is ordered to the competent authority for the new substantiation of those points.

**XI.- THE APPEAL FILED BY ATTORNEYS ERICK RAMOS AND FEDERICO MORALES ON BEHALF OF THE ACCUSED [Nombre015] IS RESOLVED.-** **1. As for the four crimes of Penalty of the Corruptor:** Of the issues proposed by attorneys Erick Ramos and Federico Morales, representing Mr. [Nombre015], their disagreement with the judgment has been expressed through various writings, the first of which is a 'cassation' appeal that was filed and subsequently in an appeal by conversion. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the defendant for four crimes of PENALTY OF THE CORRUPTOR, committed to the detriment of Probity in the Exercise of Public Function. **First Section.- Defects that by themselves imply the nullity of everything resolved. A. Prescription of the cause. In the first ground regarding the form of the appeal, attorneys Erick Ramos and Federico Morales allege violation of due process because the cause has prescribed**. They indicate that the exception of prescription was raised in various instances, and was rejected. The reason expressed by the Trial Court of Merit to dismiss the prescription was based on the declaration of complex processing of the cause that was issued on March 3, 2006, with the judges considering that by virtue thereof the reduction of the prescription term could not apply, by virtue of the provisions of the third paragraph of Article 376 of the procedural legislation. According to the defense, procedural acts are governed by the law in force at the time they occur and take effect according to that law. Article 376 CPP would not be giving any possibility for the declaration of complex processing to make its effects retroactive nor to interrupt the prescription. Thus, the prescription of the facts attributed to [Nombre080] would have elapsed on the 14th day of April 2007; without any of the interrupting acts established by the criminal procedural law having occurred by that time. They request that this Cassation Appeal be granted based on this ground and it be declared that the criminal action was extinguished by prescription on April 14, 2007. **They are right in their claim.** The defense lawyers propose that the prescription of the cause should have been declared from the moment the issue was alleged in the process, as the fatal term that extinguishes the criminal action had elapsed. Despite the fact that in principle it is clear that the public criminal action was extinguished in the case at hand in favor of [Nombre015] and as a consequence of its prescription, the sentencing Court reasoned opportunely and based on what is established in Article 376 of the Criminal Procedure Code, which broadly establishes that when the processing of the cause is ordered as complex in the investigation and intermediate stage, the reduction of the prescription term by half does not apply, according to what is established in Article 33 of the Criminal Procedure Code, in the sense that in this case the declaration of complex processing of the cause prevented the claim for extinction of the criminal action from being resolved favorably. The main argument of the appellants is that the declaration of complex processing of the cause does not modify the reducing effects of the prescription term that had already operated in their time in favor of Mr. [Nombre015] in the year 2004. It is recorded in the case file, the appellants maintain, that [Nombre015] was questioned for the facts subject to this process at 14:30 hours on October 14, 2004. Therefore, the expiration term for the criminal action would expire on April 14, 2007, given that the next act that according to the strict application of the law suspends the prescription is the setting of the Preliminary Hearing; which in this case was not issued until September 10, 2007. According to this starting point, with the investigative statement (declaración indagatoria) of the accused, the prescription term would have been reduced by half, as ordered by the Criminal Procedure Code. The declaration of complex processing of the process could not, therefore, come to affect what had already been produced in accordance with the general rules imposed by the procedural legislation. They cite in their favor the doctrine of Prof. Javier Llobet in his work “Código Procesal Penal Comentado”, who maintains that if the reduction of the prescription term by half has already operated, this should govern for the rest of the process, and not that it is later said that said reduction has not operated, as it would be like a kind of “manipulation” of the prescription term, with the retroactive application of the declaration of complexity. **This Chamber had already ruled against the retroactive effects that have been given to the declaration of complex processing of the cause. The reasoning that supports this conclusion has already been expressed when resolving Dr. [Nombre012]'s appeal, to which it refers to avoid unnecessary reiterations. It is appropriate, therefore, to declare the cause followed against [Nombre015] prescribed and to absolve him of the four crimes of penalty of the corruptor that were attributed to him. B. Unusable (illicit) evidence. The Court used information obtained from the statement of the co-defendant [Nombre026], who provided that information for the conviction under the protection of an undue procedural advantage.** In the second ground of the defense appeal for [Nombre015], the non-observance and erroneous application of procedural law is alleged, as illicit evidence has been used to convict their client. They consider that the information from [Nombre026] was generated from an agreement with the Public Ministry that was constructed in a manner contrary to due process, because the prosecutorial discretion (criterio de oportunidad) that benefited him was accepted, disregarding procedural regulations. Passages from the judgment are cited where it is evident that the information provided by [Nombre026] was effective in sustaining the conviction:

“… in any case, here [Nombre009] was indeed present from its planning because it had to be known prior to the corrupt promises how the bribes would be paid and that was his task. Remember that [Nombre026] mentioned that on one of the occasions when he asked about Servicios Notariales QC S.A., [Nombre015] told him that was the way they had devised so that everyone would be protected; that is to say that in advance of the plan's implementation, the formula to achieve that protection was already known.” (p. 1157) “Faced with this picture one must ask: If the equipment had been donated by Alcatel since 1998 and that meant it was already operating by 1999 and 2000, why was it not authorized to participate in the direct contracts where Lucent and Ericsson were suppliers? Why, if they had said equipment in operation, had Alcatel's participation in the last contract for the 100,000 cellular lines not been authorized? Why, if it was argued that genuine equipment, compatible with ICE's cellular system, was required, among other reasons, to exclude Alcatel as a bidder, was it now considered as a direct awardee for having genuine equipment, without substitutes, etc.? Why did it now have the legal and technical backing? What motivated the board of directors now to vary the position it had maintained for years? The only plausible answer this panel finds is that regarding directors [Nombre004] and [Nombre026] the remunerative promise had already been made; the latter indicated so and the former not only intervened earlier in the cited sessions where Alcatel's participation was denied, but in this session 5271 he expressly manifests himself supporting the contract and justifying his statement in notes signed by [Nombre061] and the Legal Advisory.” (1164) “[Nombre026]'s statement is completely congruent with the evidence presented and here it is relevant (although this reference has been sporadic for the assessments made in this considerando) to point out how at the time the illegal remunerative proposal was presented to him by [Nombre035] and [Nombre015] (in early December 2001) three requests were formulated in exchange for the bribe: his help for the technological migration, the public tender, and the awarding in the event said tender occurred. The various technical defenses of the accused, including Ms. Valenciano, Mr. Navarro, Mr. Gairaud, Mr. Ramos, Mr. Morales, and Mr. Villalobos state that such statements by [Nombre026] are implausible because the technology migration took place in May 2000, although Mr. Navarro claims it dates back to 1998 -without elaborating on explanations- and Mr. Ramos goes further back in time, what is true is that -fundamentally- they coincide in pointing out that if the described decision was prior to the promise, it lacked all logical sense for the offer to be based on that purpose.

However, [Nombre026]'s assertions have been fully ratified by this court based on the evidence items that will be specified.” (1167) “That is why it is very revealing that when there is a threat that this agreement will be questioned, [Nombre015] conveys his concern to the board and asks [Nombre026] that when they attempt to back out of the tender, he must attend session 5277. That is to say, [Nombre015] not only knew in advance that the agreement was going to be questioned (Evidence No. 630, “CD-ICE letter,” dated March 8, 2001), but also requests [Nombre026]'s intervention to prevent it, as he stated and his participation is corroborated in the minutes of the respective session where [Nombre026] speaks in favor of maintaining the proposal and where, in fact, [Nombre026], [Nombre052], [Nombre066], and [Nombre004] vote in favor of maintaining the contract, while [Nombre027] is supported by [Nombre067] and [Nombre055], meaning that the decision is made by a narrow majority. This letter of March 8, 2001 also reflects that at that time the situation for Alcatel within ICE continued to be complex. [Nombre026] declares that he did not go to the first session of the directive council, but that he had already met with [Nombre015] and [Nombre035] by that time, that is why he speaks in favor of direct purchase, because it was part of the commitment assumed for migrating and indeed it is corroborated that he does so in session 5277.” (1172) “- Before receiving the money, the accused [Nombre015] communicated this situation, so that logic determines that there was prior and fluid communication between [Nombre015] and [Nombre009] to coordinate the pertinent matter to the extreme that, indeed, the transfer of funds subsequently occurred, which happened in a similar manner on repeated occasions, as [Nombre026] narrated.” In accordance with what [Nombre026] reported regarding that practice of [Nombre015], the deponent [Nombre081] explained that…” (1185)</span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:0cm;margin-right:42.55pt;margin-bottom: 0cm;margin-left:42.55pt;margin-bottom:.0001pt;text-align:justify;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>“Regarding the intervention of [Nombre035] and [Nombre015], note that [Nombre026] himself stated that on all seven occasions when funds were transferred to him or certificates were delivered, [Nombre015] asked him about the circumstances of the delivery, and in the cases where it was by transfer and he provided the account number, the money effectively arrived there, which reveals that [Nombre015] communicated such information to [Nombre009] as the person in charge of said account. [Nombre026] also stated that when he asked [Nombre015] who SNQC S.A. was, he replied that it was the system they had devised so that everyone would be protected, thus denoting a planned and joint participation.” (1258)</span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>Furthermore, the appellants insist in their brief, there is an express "Considering" (Considerando) of the judgment (cf. Considering XI, point A.) where the judges justify the use of the information introduced by [Nombre026]. They accompany their argument with a description of circumstances and procedural moments that demonstrate their assertion: </span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;text-indent:34.0pt;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>“…<u>Description of Procedural Actions</u></span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> FIRST: On January 31, 2006, the person who appeared as a cooperating co-defendant (coimputado colaborador) in the trial, Mr. [Nombre026], his defense attorney EWALD ACUÑA BLANCO, the assistant prosecutors CRISS GONZÁLEZ UGALDE and CARLOS MORALES CHINCHILLA, as well as the Deputy Prosecutor WARNER MOLINA RUÍZ, signed an agreement for the application of an opportunity criterion, pursuant to the provision of article 22, subsection b) of the Code of Criminal Procedure (as stated in evidence 776, legitimately incorporated in due course into the Trial). In the same vein, see what is recorded in the challenged ruling at folio 1653.</span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> SECOND: In accordance with said agreement, the Public Prosecutor's Office (Ministerio Público) undertook to request in favor of the cooperating defendant [Nombre026] that his prosecution be totally dispensed with in case 04-006835-647-PE. The foregoing was conditional upon the cooperating defendant [Nombre026] giving testimony at trial —as effectively occurred— a statement similar to the one duly given before the Public Prosecutor's Office and which constitutes the ANNEX of the aforementioned opportunity criterion. Likewise, on the condition that said statement not be disproven by other evidentiary elements that make it appear false. And the prosecutorial action was also conditional upon the information provided by [Nombre026] allowing the participation —among others— of the defendants in this same case [Nombre015], [Nombre035], [Nombre012], and [Nombre018] to be accredited at trial. </span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> THIRD: For the materialization of the referenced agreement, the Public Prosecutor's Office, represented in that act by Prosecutors Marcela Morera Molina and Amelia Robinson Molina, petitioned the Criminal Court of the Intermediate Stage (Juzgado Penal de la Etapa Intermedia) of the Second Judicial Circuit of San José, by brief dated May 30, 2007, for the application of an opportunity criterion for collaboration. In said brief (which we understand also forms part of evidence 776), the Prosecution includes in the section called "Statement of Facts" (Relación de los Hechos), following the numbering from 1 to 116, a series of facts and actions that supposedly constitute the object of the investigation. We affirm the foregoing because on folio 1 of the referenced brief, the Prosecution records: “As a result of this investigation, the facts described below are considered established.” From which it follows that these are the facts being investigated in case 04-6835-647-PE. </span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> FOURTH: Similarly, the File for the Application of the Opportunity Criterion (Legajo de Aplicación del Criterio de Oportunidad) also contains the brief dated February 1, 2006, in which Attorney Warner Molina Ruiz, in his capacity as Deputy Prosecutor, authorizes the application of the opportunity criterion pursuant to subsection b) of article 22 of the Code of Criminal Procedure in favor of the defendant [Nombre026]. In said document, the Deputy Prosecutor refers summarily to the facts under investigation in said case (specifically at folios 2 and 3 —folios 33 and 34 of the File— and at folio 8 —39 of the File).</span></i><span lang=ES-CR style='color:black;mso-ansi-language: ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> FIFTH: The referenced actions led to the issuance of the ruling at 9:51 a.m. on June 1, 2007, signed by Attorney Ana Gabriela Sánchez Arroyo, in her capacity as Criminal Judge of the Second Judicial Circuit of San José. Said ruling refers to the general identifying data of the case and, subsequently, establishes in a "Considering I" (Considerando I), called "Statement of Facts" (Relación de Hechos), exactly the same facts the Prosecution describes in the section of the same name, from point 1) to point 116). In "Considering II" (Considerando II), it is indicated that the action promoted by Prosecutors Marcela Morera Molina and Amelia Robinson Molina has the approval of the Deputy Prosecutor. Subsequently, a "Considering III" (Considerando III) called "On the Merits" (Sobre el Fondo) is included, in which the Judge indicates the nature of the requested opportunity criterion and examines the legal requirements for its admissibility. Since the ruling practically completely lacks due reasoning, it suffices to note that it refers, as facts or conduct assessed and evaluated for determining greater culpability (reprochabilidad), to the conduct of [Nombre026] and the conduct of [Nombre012]. Additionally, the jurisdictional decision refers to the facts investigated in this case in relation to [Nombre015], [Nombre035], [Nombre018], and [Nombre012], which are clearly linked to the contracting of the 400 thousand cellular telephone lines, of which extensive knowledge was obtained in the oral and public trial that preceded the issuance of the Judgment now being challenged</span></i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>…” According to the challengers' thesis, the information that the judicial authority must receive must be complete, especially regarding the matters under investigation, so that it can effectively exercise its oversight over the activity of the Public Prosecutor's Office. The latter, especially, in the weighing of the lesser culpability of the effective collaborator. This weighing of "lesser culpability," the defense attorneys suggest, has been chosen to be carried out based on a comparison of the conduct charged. According to this, <u>the factual framework provided</u> by the prosecutorial representation to Attorney Ana Gabriela Sánchez Arroyo in the brief dated May 30, 2007, by which it requested the application of the opportunity criterion for collaboration in favor of the cooperating defendant [Nombre026], <u>did not correspond completely to what was actually being investigated at that time</u>. Therefore, the conduct of [Nombre026] could not be assessed with all the information available to the Prosecution. Consequently, the conduct of the collaborator that could be evaluated by the judicial authority based on the information arising from the statement of facts provided by the Prosecution is not the same conduct that could be determined <u>based on all the information</u> that truly existed at that time as a result of the investigation in the hands of the Prosecution. There was information from [Nombre026] about his involvement in other acts and contracts of the ICE related to the subject of the telephone lines and the receipt of undue payments for acts inherent to his duties as a public official. The appellants report the following: “…<i>In effect, at that moment of the investigation, several statements given by the co-defendant [Nombre026] had already been added to the respective file, as well as several expert reports from the Economic and Financial Crimes Section of the Judicial Investigation Organism (Organismo de Investigación Judicial); among others, Report 297-DEF-540-04/05 in which, in the point identified as 4.8 point 12., the following is established:</i></span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align: none'><i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language: ES-CR'>“Finally, reference was made to Check No. 49-1 for U.S. $46,000.00, drawn by Holding de Valores y Capitales, S. A., on May 26, 2003, to the order of Mrs. [Nombre082], which he said he had received from [Nombre018], supposedly, for collection efforts he had made before ALCATEL, at the request of both the latter and [Nombre012].</span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align: none'><i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language: ES-CR'>At this point, it is worth commenting 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 for U.S.$110,207.00 and U.S.$29,833.95, received from CIBERTC, S. A., and Empaques Asépticos, S. A., through [Nombre027].”</span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> Likewise, the aforementioned report points out in point 5.11 that, although [Nombre026] maintained that the premium he would receive would range between 1.5% and 2% of the total contract for the 400,000 cellular lines, minus expenses, the expert report concludes that part of the sums transferred by Servicios Notariales Q.C., S. A., to [Nombre026] was also related to other contracts signed by the ICE for the purchase of ALCATEL fixed switching centers. </span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> It is important to highlight —following this same line of exposition— that [Nombre026] would have declared in the month of September 2004 that he received undue payments for his participation as a Director of the ICE in the approval of the concession for the La Joya Hydroelectric Project. Also, in the month of October 2004, [Nombre026] confesses before the Prosecution to having received monies or undue payments in relation to the companies Teletec and Empaques Asépticos. In the month of November 2004, he also declared regarding the receipt of certain undue monies. Likewise, in May 2005, he stated that he had received monies from Holding y Valores corresponding to payments for improper acts linked to the exercise of his position as a public official. </span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> It is clear, then, that by the date on which the Prosecution filed its application before the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José for the application of the opportunity criterion for collaboration in favor of [Nombre026], the representation of the Public Prosecutor's Office had sufficient information allowing it to fully know about the possible participation of the cooperating defendant [Nombre026] in other criminal acts different from those linked to the contract for the 400 thousand cellular lines. </span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> However, this information, referring to acts distinct from those directly linked to the contract for the 400 thousand lines, was concealed from the Judge. This assertion finds its support in the reading of the statement of facts contained in the request promoted by the Prosecution for the approval of the opportunity criterion negotiated with [Nombre026], as well as in the statement of facts contained in the ruling issued on June 1, 2007, which approves the aforementioned legal instrument. We consider it legitimate to affirm that the other mentioned acts in which [Nombre026] participates, different from those related to the mentioned ICE contract, were not reported as required to the judicial authority.</span></i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>…” Furthermore, in the trial itself, and with information that was made public to the press, the challengers were able to realize that the object of the agreement between the Public Prosecutor's Office and the co-defendant [Nombre026] would be regarding acts other than the contract for the award of the 400 thousand cellular lines to the Company ALCATEL. In support of what is affirmed, they cite the words expressed by Prosecutor Maribel Bustillo in the brief dated July 25, 2008, which, together with the ruling at 1:40 p.m. on May 18, 2009, appear added to case file 08-000032-615-PE, which they request <i>ad effectum videndi</i>, who stated:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align: none'><i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language: ES-CR'>“In the agreement in question, it can be observed that the Public Prosecutor's Office, in the exercise of its conferred powers, undertakes to request in favor of [Nombre026] that criminal prosecution be dispensed with, not only for the fact related to the money improperly received from the company Alcatel on the occasion of the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand GSM technology mobile lines, but for the entirety of the criminal prosecution for case No. 04-006835-647-PE, which encompasses this and the other acts that the complainant mentions, since all form part of the investigation under the single indicated number. This is so much the case that the defendant was questioned (indagado) on all those acts, well before the application of this agreement, on September 30, <st1:metricconverter ProductID=\"2004.”\" w:st=\"on\">2004<span style='font-style:normal'>.”</span></st1:metricconverter></span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align: none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>The appellants insist that from this document it follows that the object of negotiation between the Public Prosecutor's Office and [Nombre026] was the dispensation from exercising criminal prosecution <u>in relation to ALL the acts known and investigated by the Prosecution at the time of that negotiation</u>, that is, as of January 31, 2004. However, when judicial authorization is requested for the application of the opportunity criterion, <u>reporting is omitted about the acts under investigation in case file number 04-6835-647-PE</u>. Attorneys Ramos and Morales emphasize that, therefore, the prosecutorial action included other additional acts beyond those described in the statement of facts originally provided by the prosecutorial representation. This action would be contrary to constitutional and legal requirements, as it should have informed the judicial body about which acts it was actually reaching an agreement on with the defendant [Nombre026]. Thus, the incomplete information would cause a defective procedural action that was the basis for approving the opportunity criterion that favored this defendant, and which was contrary to what was expressly indicated by article 96 of the Code of Criminal Procedure. In the same way, the jurisdictional decision contained in the ruling at 1:30 p.m. on September 2, 2010, issued interlocutorily during the Trial that led to the Judgment being challenged, which legitimized, by majority decision, the introduction of the defendant [Nombre026]'s statement into the trial, would also be unsustainable. They transcribe a section of the judgment where the introduction of what this co-defendant testified is justified:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:0cm;margin-right:42.55pt;margin-bottom: 0cm;margin-left:42.55pt;margin-bottom:.0001pt;text-align:justify;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>“The agreement has been questioned by the technical defenses of the defendants because it allows impunity for [Nombre026] for other crimes committed; however, in the agreement literally described, it is expressed that the Public Prosecutor's Office undertakes to request in favor of the defendant [Nombre026]: "that prosecution be totally dispensed with in the case indicated above" and in the heading of the document it mentions "Illicit enrichment and others", Evidence No. 776. In the request for the application of the opportunity criterion, a statement of facts is included regarding the award of the 400,000 cellular lines to the company Alcatel, and at folio 28 it is recorded that the legal classification given to the described facts is a crime of active bribery (cohecho propio) and a crime of aggravated corruption for improper bribery (corrupción agravada por cohecho impropio) against [Nombre026]. In the ruling of the Criminal Judge at 9:51 a.m. on June 1, 2007, which authorizes the application of the opportunity criterion, after transcribing the described statement of facts and other assessments, it is indicated that it is for the crime of Illicit Enrichment to the detriment of the Instituto Costarricense de Electricidad. However, regardless of the aforementioned legal denominations, what really matters for the purposes of the definitive decision of that action by the competent jurisdictional body, and according to the second paragraph of article 23 of the Code of Criminal Procedure, is the factual basis contained in the request and the ruling.</span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:0cm;margin-right:42.55pt;margin-bottom: 0cm;margin-left:42.55pt;margin-bottom:.0001pt;text-align:justify;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>Hence, the technical defenses of the defendants are not correct when they argue that the Prosecution deceived the Criminal Judge by granting impunity to [Nombre026] for crimes not included in the action. The issue of other alleged crimes attributed to [Nombre026] is totally extraneous to this court because, besides the fact that the principle of innocence applies to him regarding them —as it does to any other person suspected of committing a crime—, this proceeding is not for judging [Nombre026], nor for evaluating other possible illicit conduct attributed to him. In this case, what <u>is solely of interest is the intervention of [Nombre026] in acts related to each one of <span class=GramE>the defendants (imputados) regarding</span> whom his collaboration is applicable and who are accused in this proceeding.</u> With all that, how could the Public Prosecutor's Office deceive the Criminal Judge if the crimes for which it is applying for the opportunity criterion are those related to the acts in the request? If the second paragraph of article 23 of the Code of Criminal Procedure states that the dispensation from prosecution must be assessed by the criminal court "in relation to the acts or persons in whose favor the opportunity criterion was applied," how could other criminal acts be included? Attorney Gairaud also objects to the opportunity criterion by arguing that the criminal action for the crimes not included in such action would have reached the statute of limitations and, although this reasoning is contradictory or confusing with respect to the one previously sustained, in any case, it is reiterated that in this proceeding <u>exclusively</u> what is of interest is the evidentiary contribution of [Nombre026] in the trial of the defendants [Nombre012], [Nombre015], and [Nombre018].</span></i><span lang=ES-CR style='color:black;mso-ansi-language: ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:0cm;margin-right:42.55pt;margin-bottom: 0cm;margin-left:42.55pt;margin-bottom:.0001pt;text-align:justify;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>[Nombre026] has also maintained that from his first statement, he was willing for them to investigate his bank accounts, his credit cards, telephone calls, and offered what was within his reach for the investigation, his wife as well as his mother showing a similar attitude. It is observed that at folio 434 of Volume II, his authorization dated October 5, 2004, is recorded for copies of all documents related to his checking accounts to be delivered to the representatives of the Prosecution, Mrs. [Nombre082] proceeding in a similar sense, as recorded at folio 432 of Volume II.</span></i><span lang=ES-CR style='color:black;mso-ansi-language: ES-CR'><o:p></o:p></span></p> Likewise, as of October 12, 2004, he proceeds to deliver certificate No. [Valor051] for the sum of $1,401,241.36, as inferred from the documents on folios 462 to 465...” ...a rigorous examination of the content of his version and the eventual incidence of the indicated circumstances Although the particular and rigorous examination of the statements of [Nombre026] will be made on each occasion that his version is used as evidentiary support, it is worth pointing out beforehand that the recount of circumstances previously carried out allows us to establish that:

• i)The first declaration of [Nombre026] occurs on September 30, 2004, folios 127 to 136, Volume I, and by October 5, 2004 (folio 434) the accused collaborator was already authorizing the opening of his checking accounts and the obtaining of bank documentation, therefore his purpose of collaborating with the Administration of Justice is evident.
• ii)On October 12, 2004, [Nombre026] shows signs of his intention to compensate part of the damage caused when he proceeds to deliver to the Criminal Court of this Judicial Circuit certificate No. [Valor051] for the sum of $1,401,241.36.
• iii)On May 9, 2005, 8 months after the case began, [Nombre026] agrees with the Public Prosecutor's Office to the application of an abbreviated procedure (procedimiento abreviado), undertaking to accept his responsibility for the facts, to serve a sentence of 4 years of imprisonment without any benefit, and to render his declaration at trial, as well as the payment of the sums indicated to the Office of the Attorney General (Procuraduría General de la República) and the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad), and the delivery of two cars. And contrary to what was stated by the defense of [Nombre012], it is noted that at that time the conditions for [Nombre026] to become eligible for the benefit of Article 55 of the Criminal Code were not met, apart from the fact that such a possibility was also not negotiated with the Public Prosecutor's Office, nor is authorization of that nature within the scope of its competencies. Furthermore, due to the quantum of the penalty, in accordance with Article 59 of the Criminal Code, [Nombre026] would have effectively had to serve said sentence because the benefit of conditional suspension of the sentence would not be applicable. And finally, if the agreement for the signing of the abbreviated procedure implied the imposition of the described penalty and appearing at the oral hearing (debate) to render his declaration, hypothetically assuming that said procedure had been authorized by the competent court, what would have motivated [Nombre026] to appear at trial to render his declaration if he had to serve the sentence of 4 years of imprisonment? That is, if his purpose in coming to the oral hearing, according to the defense, has been to remain unpunished, Why did [Nombre026] at that first moment accept this same condition in exchange for serving a sentence of 4 years of imprisonment? The described argument definitively lacks all logic.
• iv)The cited abbreviated procedure could not be formalized due to the refusal of the complainants (querellantes) [Nombre083] and [Nombre084], who not only generated suspicion in the appellate judge regarding their legitimate interest to file a complaint (querellar), but also to file a complaint against one of the declarants regarding the criminal action of [Nombre012], the latter having granted authorization to [Nombre083] to be present at a private hearing where he appeared, as well as due to the recorded visits by [Nombre083] during the house arrest of [Nombre012]. A situation which, apart from generating suspicions about the true grounds for the exercise of the criminal action by [Nombre083] and [Nombre084], given the former's connection to the defendant (encartado) [Nombre012], in any case and -for what is of most interest here- the truth is that, paradoxically, it was by virtue of the refusal of said complainants to allow the abbreviated procedure to be agreed upon and formalized that, finally, [Nombre026] was legally prevented from accepting the charges and becoming eligible for the custodial sentence of 4 years of imprisonment that he had agreed upon with the Fiscalía. Hence the fallacy of the argument of the defendants' technical defenses, that [Nombre026] was benefited by the Fiscalía with the opportunity principle (criterio de oportunidad) so that, in exchange for his impunity, he would "sink" the accused, since if he remained unpunished, understanding this as the lack of criminal penalty, this was due to the actions carried out by those close to [Nombre012]. That is, if the facts for which [Nombre026] has admitted responsibility remain unpunished, it is due to the refusal of [Nombre083] and [Nombre084] to admit the application of the abbreviated procedure, not because the Fiscalía, out of the blue, "blackmailed" [Nombre026] with the opportunity principle to make him appear to declare at this oral hearing, apart from the fact that he had already accepted this condition without being offered the aforementioned institute. There is another aspect that deserves to be addressed, and that is the suggested favoritism that the Public Prosecutor's Office showed towards [Nombre026], noting that other defendants in this case submitted to similar procedures and specifically the ex-director of the I.C.E., [Nombre027], and [Nombre064], in charge of Intelmar S.A., agreed with the Fiscalía on the imposition of sentences of 3 years of imprisonment, granting each the benefit of conditional suspension of the sentence. Consequently, what preferential treatment exists when, upon agreeing to the abbreviated procedure, [Nombre026] would face a sentence of 4 years of imprisonment without conditional suspension? Furthermore, the dissenting vote questions that [Nombre026] had been allowed an economic profit of 2 and a half million dollars supposedly coming from gifts received and that he kept one million dollars, all in exchange for his declaration, without this majority integration understanding from what evidentiary element or which inference the dissenting position is allowed to make that affirmation. But, leaving that aside, what the evidentiary catalog does reveal is that with an abbreviated procedure, or without an abbreviated procedure, with an opportunity principle, or without an opportunity principle, since October 12, 2004, [Nombre026] delivered to the Criminal Court of this Judicial Circuit certificate No. [Valor051] for the sum of $1,401,241.36. The rules of logic indicate to this court that if [Nombre026] wanted to keep some money in exchange for his impunity, he would not have delivered the described sum when he had not even negotiated that possibility, and that if the Public Prosecutor's Office -according to the insinuated dynamic- wanted to compensate him with the sum he did not deliver so that he would declare, then it would have similarly wanted to "compensate" him when, for that same sum, it agreed with him on the application of the abbreviated procedure and the imposition of a sentence of 4 years of imprisonment. And then one would have to affirm, also, that the Public Prosecutor's Office wanted to "compensate" [Nombre064] when he only returned $100,000, despite the fact that it was proven he received more than $1,000,000; but surely the Public Prosecutor's Office did not want to "compensate" [Nombre027] when it negotiated with him the abbreviated procedure and the return of more than $1,000,000. On the contrary, all the foregoing reflects that the representation of the Fiscalía did not condition the negotiation with the described defendants, nor with the collaborator, on the exact return of the amount from which they benefited.
• v)The agreement between [Nombre026] and the representatives of the Public Prosecutor's Office for the application of the opportunity principle occurs on January 31, 2006, and through its signing, one year and several months after the beginning of this criminal process, [Nombre026] once again (because he had already assumed a similar commitment with the abbreviated procedure) obligates himself to appear at trial to declare.

It is for all the foregoing that, in summary, it can be affirmed that it was not as a consequence of the opportunity principle, nor in exchange for his impunity, that [Nombre026] came to this oral hearing to render his declaration; and that when [Nombre026] is asked why he accepts to appear to render his declaration and he responds that he wants to publicly assume responsibility for his acts, this court considers that his statements are totally credible and disinterested because it was not under the protection of the opportunity principle that he devised such an initiative, but rather this occurred many months before the granting of that mechanism, and, even, when he first exhausted another, more burdensome possibility for his person.

It has already been said that the specific assessment of the assertions of [Nombre026] will be made in the instances where said contribution occurs; however, because the technical defenses of [Nombre001], [Nombre004], [Nombre012], [Nombre015], and [Nombre018] object to his credibility with allusion to common and general aspects, it is worth referring to them. They allege that the fact that [Nombre026] abstained from answering questions formulated by the lawyers of the defendants [Nombre012], [Nombre015], and [Nombre021], detracts from the credibility of his account. However, in this court's consideration, the cited behavior of [Nombre026] does not affect the credibility granted to his narration because, in those instances where he omitted to answer the questions, he did so for several reasons but with a single basis, whether because he was questioned about self-incriminating facts in which he had the right of abstention, or because he was asked about facts unrelated to the accused. In either case, such conduct derived from the warning given to him by the court before rendering his declaration at the first hearing on September 8, 2010. Both at that moment and by resolution at 1:30 p.m. on September 2, 2010, it was indicated:

"...the decision of this body is maintained for [Nombre026], in his capacity as an accused collaborator, to appear to render a declaration, who will be informed: i) of his rights not to declare against himself and to abstain from rendering a declaration on the facts, without his silence affecting him; ii) of his right to have the assistance of a lawyer of his choice and to communicate freely and privately with him; and iii) in the event that he opts to declare, he will be warned that everything he says could eventually be used against him, as well as of his right to express what he considers convenient and is related to the charged facts, the parties and the court being able to ask him questions without thematic limitations, except for form, pertinence, and usefulness, and it remaining at his discretion whether to answer them." (the bold is supplied) The aforementioned warning, for what is of interest here, was made by the court based on numeral 326 in relation to the principle of correlation provided for by Article 365, both of the Criminal Procedure Code (Código Procesal Penal). The first establishes that the trial, apart from being the essential phase of the process, is carried out on the basis of the accusation, which -in accordance with the indicated principle- determines the content of the judgment. In other words, because the court was legally impeded from hearing illicit facts other than those charged, it was expressly indicated to him that, should he choose to declare, he would have the right to express what he considered convenient provided it was related to these. So his refusal to refer to circumstances not contained in the accusation and eventually self-incriminating in no way undermines his credibility.

Consequently, it could not be argued either that a collision of defense rights of the accused collaborator and the defendants operates here, given that what prevails here is the delimitation of the oral hearing (debate) and the evidentiary activity on the basis of the accusation. There is no violation of the defendants' right to defense because it is not based on facts allegedly committed by a third party that they are held responsible, but for their own, about which they had ample opportunity to question and obtain answers from the collaborator; apart from the fact that the protection of [Nombre026]'s right of abstention was not fundamental either since, in any case, regarding such events, this court would not have jurisdiction to convict him even if he acknowledged them, or to acquit him if he denied them. They were simply factual situations that did not motivate his appearance at trial, that were not of interest in this process, no matter how much these might have interested the parties." (See Considering XI, p.1654 to 1660) It is proposed, then, that the Trial Court decided to act in accordance with its own criterion, not to declare the defective procedural activity generated by the omissive actions of the Public Prosecutor's Office, and to allow [Nombre026] to testify, considering it unnecessary to determine whether indeed the public criminal action that should have been pursued regarding all the criminal acts committed and attributable to [Nombre026] was illegitimately abandoned by the Fiscalía based on the effects derived from the opportunity principle improperly granted in the subjúdice. The conviction of [Nombre015] resulted essentially from the information provided by this evidentiary element contrary to law (the declaration of [Nombre026]). They add, the dissenting vote held by Judge Camacho Morales in the Judgment being challenged, would be an additional element that supports these arguments, summarizing the main aspects derived from the reasoning of the dissenting vote in the following manner:

"...1. Incomplete request formulated by the Fiscalía for the Judge to approve the application of the opportunity principle in the specific case and in the terms indicated by Article 22 subsection b) of the Criminal Procedure Code; 2. Groundless jurisdictional resolution that approves the application of the opportunity principle and justifies [Nombre026]'s declaration at trial; 3. Declaration rendered at trial by the co-defendant [Nombre026], improperly sheltered by the promise of a procedural advantage that is juridically impossible to uphold.

4. Use of information coming exclusively from illicit evidence to essentially found the factual framework used to convict -among others- [Nombre015].

This representation considers that, based on the foregoing, it is imperative:

1. To grant the present Cassation Appeal (Recurso de Casación) based on this first cassation ground; 2. To declare that the request for application of the opportunity principle contained in the filing on folio 1 and following of the respective Dossier (proof 776) constitutes a defective procedural action; 3. To declare illegitimate, for being essentially supported by defectively verified procedural acts, the resolution at 9:51 a.m. on June 1, 2007, issued by the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José, subscribed by Attorney Ana Gabriela Sánchez Arroyo; 4. To dimension the effects of such declarations and also to order that the resolution at 1:30 p.m. on September 2, 2010, issued by this Court is illegitimate, insofar as it ordered the production of [Nombre026]'s declaration at trial (which materialized in subsequent days), given that it was essentially based on the assumption that the jurisdictional resolution mentioned in the previous point was legitimate; 5. It must be declared that the information coming from the declaration rendered at trial by the co-defendant collaborator [Nombre026] did not form part of the usable material to found the objected Judgment..." Based on the aforementioned reasonings, they request that the judgment appealed through this appeal ground be annulled for being the product of defective procedural activity, a measure that must be adopted immediately, the challengers estimate, to cure the process and eliminate the harmful effects coming from that illicit activity. They are correct in their claim and the ground must be granted. This Chamber has expressed a series of arguments that endorse the defense's thesis, upon resolving the appeal filed by Dr. [Nombre012], not only from the point of view of the regulated opportunity principle applied in the case, but also regarding the procedural and factual consequences implicit in the use of the declaration of an "accused collaborator," who in his declaration makes a calculation based on the procedural and punitive advantages that have been offered to him and the information he will provide to obtain them. Reference is made to this section of the resolution to avoid unnecessary reiterations. However, it is worth noting that abundant bibliographic material demonstrates the skepticism and reservation that the use of this type of testimony in the process generates in national and international doctrine, and the felt need for judges to critically analyze their deposition with the rules of correct human understanding, logic, and psychology, in essence, with suspicion, so that the information provided does not become the sole element for the conviction of a person subject to prosecution (justiciable). This Chamber also analyzed, in detail, that the dissenting vote of Judge Camacho broadly assessed the drawbacks of using his testimony, not only because of the defects that had been observed given the absence of effective jurisdictional control in the application of the institute, a product of the omission of information that has been alleged by the appellants and that had as its final consequence: the admission of the use of the opportunity principle in favor of [Nombre026]. In essence, the details of what was declared by [Nombre026], and which have been included in facts number 84 to 94, involve not only [Nombre012] but also [Nombre015], not only because of the conversation in the restaurant "[...]" where gifts were supposedly offered to [Nombre026] so that he would intervene in the decisions on the bidding for the four hundred thousand telephone lines, but also because [Nombre015] is placed in an action suitable to make [Nombre026] become an effective piece in favor of the interests of the multinational Alcatel. Along with this, on folio 1157 of the judgment, what was mentioned by [Nombre026] about the supposed means by which the gifts would be paid is introduced, and that [Nombre015] had informed him that it would be done through Servicios Notariales QC S.A.

as a means to be more protected. In the same way, the court's conviction regarding the way the viewpoint on GSM technology changed is based on the fact that both [Name026] and [Name004] had already received promises of remuneration, just as [Name026] stated (folio 1164). The majority court found, additionally, that everything stated by [Name026] was reliable and, furthermore, congruent with the evidence presented. Regarding what concerns [Name015], the court understands that [Name035] and [Name015] asked [Name026] to help them achieve the technological migration, secure the public tender, and ensure that the award was made to Alcatel, in the event that such a public tender took place (folio 1167). In this regard, the majority court considers that there is a logical succession of events: first, achieving the technological migration, then the public tender, and finally, the ultimate award, which implied the full satisfaction of Alcatel's commercial interests. Therefore, it connects what [Name026] said with the undertakings of [Name015], especially regarding the latter's offer to ICE of a commercial proposal involving the donation of equipment in 1998 and a direct purchase. The proposal was presented at the Board of Directors' Session No. 5268 on February 2, 2001. The court even considers that it was not enough for [Name015] to have "bought" two officials, as he already knew there were suspicions from the oversight body about approving the direct purchase of 160 thousand lines, due to the suspicion that interests other than those of the Administration were involved (folio 1168). And it is for this reason that the court assumes, theorizes, that Alcatel only had to apparently meet the requirements of the tender specifications to have a guarantee of success (folio 1168). However, and as already analyzed above in relation to the appeals in favor of [Name001], it is more than evident that the process that concluded with the award was pristine, and that only two competitors, for various reasons unrelated to Alcatel, ended up participating in the abbreviated procedure, with Ericsson being excluded for technical and offer-related reasons. In fact, the evaluations from various ICE bodies agreed that the technical offer that best met the required specifications was Alcatel's, and they endorsed the award, as analyzed in detail by this Chamber. It is for this reason that it can be derived from the reasoning of the majority vote that there was a hypothesis of condemnation constructed from the statement of [Name026], and the details he gave about the offers of remuneration received and the role he was to play when participating in the Board of Directors' sessions as a member thereof. But the truth is that the process toward migration was decided before such offers took place, and the path was not easy because the TDMA-based technological infrastructure made Costa Rica dependent on the providers of said technology, an offer from which, of course, Alcatel was excluded, since its development base was GSM technology. However, neither the commercial offer nor the delivery of the 2000 GSM lines were definitive in convincing the Board of Directors of the advisability of following the path of opening, since those decisions were already being made based on technical criteria, and benchmarking studies and other types of studies. The entire process, finally, generated the interest of Mr. [Name052] and the ICE Board of Directors in opting for the direct purchase procedure. This Chamber has already considered that this path benefited Alcatel more by virtue of the fact that it would proportionally participate in the purchases of telephone lines that ICE would make. The abbreviated procedure, for its part, did not guarantee that security, not only due to the uncertainty of who its competitors would be, what the nature of the economic offers would be, and under what conditions the entire process of evaluating said offers would take place. Finally, the contract was awarded to Alcatel, but not by virtue of a rigged offer. Everything seems to indicate that the offer satisfactorily fulfilled the public interests, and the growth possibilities that ICE had at those dates, given the pending demand and the forecast of future market evolution. The technological change, moreover, suited the needs of the cellular market, which expected better value-added communication services that the TDMA platform could not satisfy. All of this has already been analyzed on the occasion of analyzing the participation of [Name001] as coordinator of the commission in charge of this entire procedure, and where this Chamber placed special emphasis on the analysis of the bidding procedure. The defense of the defendants, but especially Attorney Erick Ramos, always insisted that it was illogical that the remunerative proposal, as [Name026] relates it, had those objectives that the trial court maintains in its majority vote. Despite this, the judges insist that [Name026]'s assertions were ratified by them, even when they clash, as has been demonstrated, with the reality inherent to a procedure that experts have described as pristine. From folio 1172 to 1175, the judgment explores the kinship relationship that exists between [Name015] and [Name009], which, despite the requirements of Alcatel's code of ethics, occurs and facilitates the channel or flow of money to the corrupt officials who end up deciding the award process for the 400 thousand lines. The judgment places [Name015] using a "secure" mechanism for paying the bribes, which had supposedly already been explained to [Name026]. The causal connection, then, between [Name015] and Servicios Notariales Q.C. S.A. and the entire mechanism devised to pay the bribes, is sustained by an inference from [Name026]'s statement, however much the connections and payments through the banking inquiry (also questioned) had their effect on the judicial conviction. In this regard, [Name026] explained on each of the seven occasions on which funds were transferred to him, [Name015] would communicate with him beforehand and ask him about the way it would be paid. [Name026] would give him account numbers and the funds would flow there. From this, the majority court also derives the connection between [Name015] and [Name009], who made the payments from the accounts controlled by Servicios Notariales QC S.A. What [Name026] said about his role in the decisions of the abbreviated procedure and in the award of the "400K" project is openly illogical, and does not align with the analysis of the decision-making process that demonstrates that ICE was already moving toward technological opening, through legal channels and with the obstacles inherent to the Public Administration for making decisions. However, the path was open before [Name026] received promises of remuneration (according to his account) to influence the procedure. The mendacity of the witness [Name026], and the well-founded suspicion that he acted selfishly to obtain benefits from his statement, cannot be overlooked by this Chamber, and it is appropriate to consider the use of his testimony another reason to grant the appeal of Attorneys Ramos and Morales, and to decree the nullity of the judgment under review that found [Name015] guilty of four counts of the penalty of the corrupter. It was not necessary, to strengthen this conviction of this Court of Appeal, to assess file 08-000032-615-PE, against Mr. Francisco Dall´Anesse Ruíz, regarding the issue that the agreement with the co-defendant [Name026] covered other diverse topics in addition to what was related to the contracting of the 400 thousand cellular lines, since, as already analyzed on the occasion of Dr. [Name012]'s appeal, it has been clearly determined that the granting of the opportunity criterion has flaws, which affect its direct use in this case. It is for the foregoing reason that the ground is granted, and it is appropriate to annul the ruling under review, without ordering a remand, as there are no other independent elements that contribute to the effective analysis of the defendant's criminal participation in the acts with which he is charged. Therefore, in application of the principle of procedural economy, it is appropriate to absolve him of all punishment and responsibility for said acts. C. Spurious Evidence (Nullity of evidence no. 588). The defendants [Name001], [Name009], [Name015], and [Name021]. (Appeal visible at folios 17264 to 17278 of Volume XXXVI), raise in their brief, authenticated by Attorney José Miguel Villalobos Umaña, that Article 369, subsection j) has been violated by issuing the judgment in violation of due process, by substantially basing the convictions on illegally obtained and illegally introduced evidence in the debate, and therefore subsection c) is also violated by illegally incorporating an evidentiary element into the process, thereby contravening the constitutional provisions referring to due process and the right to defense enshrined in constitutional numerals 39 and 41 and the doctrine inspiring Article 8 of the American Convention on Human Rights. They additionally cite the resolution of the Constitutional Chamber No. 1739-92 of 11:45 a.m. on July 1, 1992, which, drafted by then-Magistrate Piza Escalante and by unanimous vote, determined the elements comprising the concept of due process, among them the principle of legality of evidence (subsection g) sub-subsection b)). Along with this principle, they invoke the general right to legality, which converts mere legality violations into violations of due process, with the aim of achieving full guarantee and material effectiveness. They further point out that Articles 180 to 184 of the procedural legislation contemplate this same consequence for deriving from the principle of constitutional legality of Article 11 of the Magna Carta, which obliges public officials to respect legal norms in order to have the moral authority to judge and sanction those who infringe them. But this requirement, they say, would be meaningless if it were not also required that evidentiary means be obtained lawfully, which entails, constitutionally, that not only must the means have value in themselves regarding their obtaining but also in the way they are incorporated into the criminal process. It would not make sense, then, to obtain evidence illicitly that is later legitimately introduced into the process, since in such circumstance fundamental guarantees that judges are called upon to uphold would already have been affected. that evidentiary elements that were used for their conviction, with the aim of studying their illegitimate obtaining and incorporation into the process. They begin with an analysis of evidence 588 containing the banking information from Panama of the accounts of the company Marchwood Holding. According to the appellants, the evidence is obtained illegally, without a court order. Furthermore, it is a certified copy from a different judicial file. The criterion set forth by the judges is vacillating, even maintaining that it is not within their sphere of competence to determine if the evidence was obtained illicitly, which is contradictory because since almost the beginning of this trial, they ruled on it, they acknowledged that this evidence was obtained through a lifting of bank secrecy without a Judge's order, and even nullified evidentiary material brought to the debate with an identical procedure, by means of the unanimous resolution in that aspect and drafted by Judge García Aguilar at 8:00 a.m. on May 14, 2010. There it is indicated that this evidence coming from Panama is NULL: from Folio 34 to 70 of that resolution, the arguments are outlined as to why evidence coming from Panama consisting of bank evidence gathered without a court order cannot be allowed to be valid, and therefore the decision of the preliminary hearing Judge to exclude it is upheld. In any case, the appellants maintain, the judges had already expressed their criteria by saying that EVIDENCE 588 WAS GATHERED WITHOUT A COURT ORDER THAT LIFTED THE PRIVACY OF THE DATA. (See Folio 894, line 2 and following). In a second point, they refer to the banking information from Panama that derives from evidence 588, which alludes, for the first time, to the company Servicios Notariales QC S.A. without there being any independent evidence in this regard. They start from their appreciation that evidence 588 is a certified copy of the Judicial Assistance containing the CAJA-FISCHEL Case that was processed in a separate file, therefore it was reviewed to obtain information for this other case. It is thus, they say, that Expert Report 428-DEF-443-05-05 from the Judicial Investigation Agency, evidence No. 618, includes the information coming from Panama, as can be seen in folios 59, 70, 81, and 88, which contain indications of transfers from a company named Servicios Notariales, unrelated to the CCSS-Fischel case, to the company Marchwood Holding, which was under investigation in that case. It is in that way that the Prosecutor's Office learns of the company Servicios Notariales QC S.A.; otherwise, it would not have learned of its intervention had it not been for the use of this spurious evidence. They establish that this illegal information reaches Costa Rica from Panama at the beginning of September 2004 and is finally received by the Prosecutor's Office on September 10, 2004, at 14:00 hours, as recorded at Folio 895 of the judgment. Information was requested about Marchwood Holding, not about Servicios Notariales QC as of May 25 of that year, and as of September 10, the Prosecutor's Office learns of the existence of a company named QC and begins an investigation into it from that moment. In other words, they insist, there is no prior reference to Servicios Notariales QC before this date of September 10, so the investigation of the ICE-ALCATEL case formally begins with the information obtained from evidence 588 from Panama, which is null, they underline, for having been obtained without a court order, meaning its consideration must be excluded in application of the exclusionary rule established by the rulings of the Constitutional Chamber and numerals 180 and following of the Criminal Procedure Code, affecting every element that derives from it. They claim there is no independent and autonomous evidence from that illegal evidence that allows for curing the illegality of that information obtained from evidence 588. According to the judges of the Majority Vote, there would be independent evidence from evidence 588 that is not affected by the presumed illegality, and that if evidence 588 were eliminated, it could sustain the assertions of the prosecutorial accusation against the defendants. They cite, for this, journalistic sources: evidence 592.9 called WRITTEN PRESS MONITORING FROM DECEMBER 9 TO 31, 2004, in reference to publications of April 21 and 27 of that year, which make no reference whatsoever to the topic under discussion, as established by the defendants. This is because from the press notes alluded to by the Judges, the existence of a company called Servicios Notariales QC S.A. does not emerge. There are only references to a house in [...] and to [Name021]. At folio 935, journalistic notes from April 2004 are cited, which appear in evidence 529.9 and 682.1. However, the former talks about some issues in Taiwan and the latter refers to other events but in no way to Servicios Notariales QC. Nor does the publication cited in folio 936 give the information that the judges claim, since said note from September 28 also does not allude to Servicios Notariales QC, in addition to the fact that by that date the banking information illegally obtained in Panama had already arrived. According to the appellants, it would be evident that the press had received the derived information to solicitously contribute to the investigation. They also reject that the interview with Mr. [Name085] on September 27 was prior to the illegal evidence coming from Panama. They state the judges opined that it was the bank data that caused new paths in the investigation and that which caused the obtaining of subsequent evidence. They continue with their argument, and now study THE ACTION OF MR. [Name032] IN WRITING AND VERBALLY DOES NOT HAVE THE MAGIC TO SUPPRESS THE INVALIDITY IN THE OBTAINING OF THE BANK EVIDENCE FROM PANAMA. This concerns the criticism of the possible way to eliminate the unlawfulness of the evidence through the consent given by Mr. [Name032] to the use of the evidentiary elements that could be obtained from access to his accounts, not only through the available written documentation but also through the verbal expressions he makes 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 September 10, 2004. With this evidence in the hands of the Public Prosecutor's Office, lifts of bank secrecy were ordered for companies like Servicios Notariales QC, the accused were charged, and precautionary measures were requested. And it was not until May 17, 2010, that [Name032] grants his authorization for the obtaining, use, and utilization of the banking information available in his bank account in Panama, as the Judges state at Folio 896 and is recorded in Evidence 759 at folio 13449 of the records. They question this authorization as a form of granting retroactive legality to the access to his accounts without a judge's order, trying to erase the illegality that is already evident from the prosecutorial action on this topic. They also question the attempt to prove the character of representative of the account held by [Name032] using the same questioned evidence 588, especially if it was done six years later. They also reject the theses related to the idea of inevitable discovery, of the notitia criminis, or of the casual finding, with which the court attempts to legitimize the use of evidence 588, with arguments that are unsustainable by virtue of the illegality of the evidence that, from its origin, makes it impossible to use its information in the criminal process (folios 173584 to 173586 of Volume XL). They are correct in their claim. The arguments for analyzing this legal problem have already been explained further above, when resolving the appeal filed by Dr. [Name012] (A-1). Thus, it is appropriate to apply to the defendant [Name015] the same effects that this determination had for the defendant [Name012]; the nullity of documentary evidence No. 588 and all evidentiary elements that depend on it is declared, the nullity of the criminal conviction judgment issued against [Name015] is declared, and in its place he is directly absolved of all punishment and responsibility. D. Flaws regarding the determination of the fact and the assessment of the evidence to determine the indicia that led to the conviction for the crime of Penalty of the Corrupter. 1. Regarding the erroneous application of substantive law as it refers to Article 345 of the Penal Code. In the first ground for flaws in iudicando, the appellants state that Mr. [Name015] cannot be convicted as the author of the crime of Penalty of the Corrupter for having made a promise to deliver a bribe for the performance of an act proper to the functions of those involved. The subsequent delivery of the bribe would be an unpunishable act since it is independent and the wrongful content of the action is materialized in the promise of the bribe. The appellants begin with some considerations about the systematic function of the criminal type and the derivations that can be established between its normative description and its role as a guarantee for criminal law. With respect to the crime of penalty of the corrupter, which occupies the central interest of this section, they consider that the facts point to the following: "...The norm corresponding to the PENALTY OF THE CORRUPTER (currently that of Article 345 of the Penal Code) has been the object in recent years of several direct or indirect reforms. Considering what the corresponding criminal type established for the approximate date of commission of the criminal acts that are taken as proven (according to what was taken as demonstrated thus: [Name004]: offer of a bribe at the end of 2000 and beginning of 2001; [Name001]: offer of a bribe at the end of 2000 and beginning of 2001; [Name026]: offer of a bribe at the end of 2001; [Name027]: offer of a bribe between the months of January and August 2001) it is worth the opportunity to highlight how the norm was drafted at that time:

Article 345: The penalties established in the five preceding articles are applicable to whoever gives or allows the public official a bribe or undue advantage.

It is worth noting that Article 185 of Law 7732 of December 17, 1997, modified the numbering of the Penal Code and assigned the numeral 345 to the until then Article 343. Subsequently, the norm of Article 343 bis was added to the Penal Code by Law 8185 of December 18, 2001, published in La Gaceta No. 10 of January 15, 2002, referring to the Offering or Granting of Bribes or Retributions. The specific conduct of whoever offers a bribe to a public official of ANOTHER State is sanctioned here.

Finally, we must also highlight that article 1 of Law 8630 of January 17, 2008, repealed article 343 bis and amended the provision of article 345, both of the Penal Code, so that henceforth it reads as follows:

"*Article 345.-* Penalty for the Corruptor: The penalties established in the five preceding articles shall be applicable to whoever gives, offers or promises a public official an undue gift or advantage."…" Regarding the legally protected interest in the crime of Penalty for the Corruptor, some doctrinal observations are made. They begin with Muñoz Conde, who maintains that the correct functioning of the administration is protected through the punishment of this conduct, which also includes the principle of impartiality in the public official. The author ORTS BERENGUER, for his part, points out that the principle of objectivity and impartiality in the administration is protected through this figure. In Latin America, the Argentine author CREUS indicates that the venality of the public official is protected as the object of protection. They also cite precedents from the rulings of the Third Chamber of Criminal Cassation, specifically Voto 183-95, which in turn reiterates what was already upheld in 256-F-97, and in which it was stated that the protected interest was the "*sound and normal functioning and prestige of the public administration through the correctness and integrity of its employees or servants*…". Regarding the action prohibited by the criminal provision set before the criminal offense, they suggest that a simple analysis of the incrimination yields the result that the conduct of *giving* or *allowing* an undue gift or advantage that the subject makes to the public official is prohibited. Regarding the history of this criminal offense in terms of the prohibited conduct, they add the following: "…*It is worth taking this opportunity to note that the relevant history in relation to this article begins with the pronouncement contained in Voto 461-91 of the Constitutional Chamber of the Supreme Court of Justice. In relevant part, it essentially established that article 343 of the Penal Code (subsequently 345) cannot be interpreted without violating the constitutional principle of legality, in the sense that what the legislator meant to say is not "permitiere" but "prometiere". The same case within which this Voto of the Constitutional Chamber was ordered subsequently prompted the issuance by the Third Chamber of the Supreme Court of Justice of Voto 183-95, which indicated in relevant part that the Constitutional Chamber established that it is not legitimate to read "prometiere" where it says "permitiere"; but that the truth is that it did not establish anything regarding the meaning of the words that compose the criminal offense: it does not tell us what we should understand or what we should not understand from those words. And what the appellant maintains is, precisely, that when the Constitutional Chamber establishes that the verb "permitiere" cannot be substituted by the word "prometiere", it is not excluding the "offer" or the "promise" as a possible semantic content of the word "diere" set forth in the referenced numeral of the Penal Code. Consulting various dictionaries proves the challenger right; in such a way that it must be agreed that whoever promises, offers or proposes an undue gift, present or future, to a public official so that the latter performs an act contrary to their duties (or incurs any of the hypotheses of articles 338 to 342 of the Penal Code) adapts their conduct to the hypothesis provided for and sanctioned in article 343 of the Penal Code*… The appellants reject this derivation made by the Criminal Cassation Chamber in its precedents, and suggest that the provision set before the criminal offense does not encompass the meanings of "propose, offer or promise". **The ground must be upheld.** Indeed, the word "permitiere" cannot be given a criminal legal application as if it said "prometiere", since this changes the meaning of the prohibition. The principle of criminal legality, contemplated in article 39 of the Constitution and in article one of the Penal Code, requires the judge to take great care not to assume legislative functions, which would certainly occur, for example, by amending eventual errors in the publication of a law, or by promoting readings of the structure of the criminal offense that are aberrant from the conventional use of the terms. Attempting a reading, for example, of the verb "dar" based on far-fetched semantic elaborations, which could depart from the correct interpretation of the term and the conventional understanding of said verb, could lead to a substitution of the punitive objective of the criminal law, whose objective is to be understood by the addressees of the provision and understood in such a way that the prohibition is heeded. Thus, understanding the word "dar" as if it were "prometer" or "ofrecer" is an interpretation that contradicts the principle of legality, not only because it gives the semantic interpretation a twist that departs from the conventional use of said term, but also because it implies extending the scope of coverage of the criminal offense beyond where the limits of punishability allow. Doing so would incur an extensive interpretation of the contents of the criminal offense that is prohibited by the Political Constitution, which is inspired by several centuries of construction of criminal guarantees that have been developed to prevent this type of judicial actions, which affect the legal certainty of the citizens of a Democratic and Social State of Law such as the Costa Rican one, according to the programmatic reading of article 1 of the Political Constitution. The Third Chamber of the Supreme Court of Justice itself, in its Voto No. 580-F-91, expressed a criterion in the sense that the provision could not be given a content or meaning that the legislator had not foreseen: "*III.- In the first ground of the appeal on the merits, articles 1, 30, 31, 54, 343 and 339 of the Penal Code are alleged to have been violated. The appellant affirms that the criterion of the Constitutional Chamber is not correct, since from the concordance of articles 343 and 339 of the Penal Code it is deduced that the promise of an undue gift or advantage, made to a public official to perform an act contrary to their duties, or to fail to perform or delay an act proper to their functions, constitutes a typical, unlawful and culpable act. The reasoning is not admissible, firstly because the verb used in the cited article 343 does not comprise the promise (diere or permitiere), and even if the legislator had intended to include the promise, according to the relationship made with 339 ibidem, the truth is that what the provision says must prevail and not what the legislator may have wanted without indicating it in the provision, in accordance with the constitutional principles of legality and specificity. Secondly, an interpretation different from that of the Constitutional Chamber made in Judgment No. 461-91 of February 27, 1991, would not be admissible either, insofar as it indicated that the cited article 343 did not include the promise, based on article 13 of the Law of Constitutional Jurisdiction, which establishes that the jurisprudence of that Chamber is binding *erga omnes*. For all the foregoing, the ground must be declared without merit*." There are other votes that dissent from the criterion just cited, such as Voto 183-1995, when it interprets that the concept "diere" encompasses the meanings "propose, promise and offer," however, these types of criteria oppose an application of the criminal offenses in accordance with the constitution. *The appellants recall a dissenting vote by Dr. Javier Llobet, in his function as cassation judge, who in a vote of the former Court of Cassation*, Voto No. 27-2004, held the following: "…*VI.- DISSENTING VOTE OF JUDGE LLOBET RODRÍGUEZ: The undersigned judge respectfully dissents from the majority insofar as it considers that the crime for which the accused was convicted was consummated, considering that it remained in the attempt stage, in accordance with the description of the criminal offense of penalty of corruptor, established in article 343 of the Penal Code. To this end, he considers that although the accused gave a gift, he did so in a police operation, which must fundamentally be considered to have the purpose of verifying the illicit action incurred by the accused by offering a gift to a lawyer of the Constitutional Chamber. The fact that this was a controlled operation prevents properly speaking of a consummation of the crime, and it must be considered that this is an attempt, since the offering of the gift constitutes an act of execution of the crime. This criterion was already outlined in the note of Magistrate Piza Escalante to Voto 461-91 of February 27, 1991, of the Constitutional Chamber, and the Third Chamber of the Supreme Court of Justice has mentioned it in various rulings, although the latter has fundamentally issued judgments related to facts similar to the present one, considering that a consummated crime occurs, through the use of the term "diere," considering that "dar" according to the dictionary of the Royal Academy has among its meanings to offer. This is the criterion that said Chamber has maintained since Voto 183-F-95 of March 24, 1995, to which it refers. *This judge, however, considers that regarding the term "dar", the concept used in common language must be followed, which is a consequence of the principle of legality, and it must be considered that "dar" is to deliver, which is the first meaning found in the Dictionary of the Royal Academy*. However, the action of offering a gift cannot be considered unpunished, since it already implies the performance of an act directly aimed at the consummation of the crime, which could not be consummated because ultimately the gift was rejected by the lawyer of the Constitutional Chamber and an operation was even set up to catch the accused (Art. 24 of the Penal Code)." (the underlining is not from the original)…". The thesis set forth in this dissenting vote is the one that this Chamber endorses, in the sense that the verb "*dar*" must be granted the meaning from common language, and that therefore its content would be identical to "*donar*" or "*entregar*," which are the first meanings in the Dictionary of the Royal Spanish Academy of Language. The reform of article 345 of the Penal Code, through Law 8630, was aimed at clarifying this incongruity of the legislative construction, and it was thus, that in 2008 the criminal offense was constructed to read as follows: "Article 345. Penalty for the Corruptor: The penalties established in the five preceding articles shall be applicable to whoever gives, offers or promises a public official an undue gift or advantage." The foregoing demonstrates the will of the legislator to correct a gaffe included in the previous construction of the incrimination, which made its application impossible in cases of remunerative offer or promise, which should have been considered within the crime of Penalty for the Corruptor, both due to the way these events occur in the real world, and because this construction also encompasses more probable hypotheses of commission. [Nombre015] is accused of *promising a gift to [Nombre001], [Nombre004], [Nombre026] and [Nombre027], all of them public officials, in order to perform acts proper to their functions in relation to a contract in which the Public Administration is interested.* From this perspective, it must be declared that such actions do not constitute the crime punished by the provision of article 343 of the Penal Code at the time of commission of the criminal act, nor any other of the crimes established by the Penal Code, not only because that is not the content of the prohibited act, but also because, as has already been resolved in relation to the other co-defendants, it has not been possible to determine what the specific action was that had to be carried out, or whether the gifts were as a reward for a completed act. In other words, there is a beneficial effect to the legal positions of [Nombre015] regarding the indeterminacy of the facts charged to the alleged victims of the corruptor act, which undoubtedly must concur to produce the nullity of the judgment and declare the acquittal. Furthermore, and this is consistent with a democratic criminal law, it cannot be considered that the promise of the gift is independent of the delivery of the gift, since both moments are univocal and inseparable for the corruptor, who wishes to affect the legally protected interest in crimes against probity. In this sense, also for this reason it is appropriate to order the acquittal in favor of [Nombre015].

XII.- *THE APPEAL OF THE ACCUSED [Nombre021] IS RESOLVED BY MEANS OF A WRITING AUTHENTICATED BY ATTORNEY HUGO SANTAMARIA LAMICQ IN EXERCISE OF HIS MATERIAL DEFENSE.* The accused [Nombre021] appeared before this Chamber to file a cassation appeal and subsequently a conversion of his appeal into an appellate appeal. Of the grounds raised by the accused [Nombre021], this Court of Appeal will proceed to resolve, in the first instance, those defects that constitute fundamental reasons for decreeing the nullity of the judgment and the acquittal of the accused. **First Section.- Defects that by themselves imply the nullity of everything resolved.** **A.** **The cause is time-barred.** In the First Ground of [Nombre021]'s appeal, the erroneous application of the statute of limitations rules enshrined in articles 31, 32, 33, 361, subsection a) and 369 of the Code of Criminal Procedure is alleged. He begins by pointing out that the Court rejects the statute of limitations exception filed by [Nombre021]'s defense. However, the dissenting vote of Judge Camacho Morales disagrees with this criterion and upholds the exception, and refers to the reasoning set forth in the dissenting vote. He considers that the core issue consists of the application of article 62 of Law No. 8422 of October 6, 2004, called the Law against Corruption and Illicit Enrichment in the Public Function, hereinafter LCC, which came into effect on October 29 with its publication in La Gaceta Number 212 of that day. According to the Court itself, had it not been for that provision, the cause would already be time-barred, which is why he proceeds to question this interpretation that incorrectly applies the statute of limitations rules of the procedural law and of the LCC itself, as well as some aspects of the *erga omnes* jurisprudence of the Constitutional Chamber. According to the majority vote, as the statute of limitations period is not reduced by half, as established by article 33, first paragraph of the procedural law, by presumptively applying the provisions of Article 62 of the LCC, the criminal action would become time-barred on November 30, 2007, and not on May 30, 2006. Therefore, he considers that what is important is to determine if that article 62 LCC is applicable to this case. In this regard, he begins his argumentation with the idea expressed in the majority vote, at folio 792, where it is stated that they do not share the defense's thesis in the sense that it concerns a reduction of time limits for the duration of the proceedings and not an issue of the statute of limitations. The difference is of interest, because if it is a control of the duration of the proceedings, we would be in the presence of an issue of rights acquired by the accused and not facing issues of the statute of limitations or application of procedural rules. The control of the duration of proceedings is a human rights issue, the defendant [Nombre021] insists, which would derive from article 41 of the Political Constitution, insofar as it raises the concept of swift justice. Increasing the time limits for controlling the duration of proceedings to the detriment of the accused would constitute a retroactive application of the law to the detriment of acquired rights. However, the judges of the majority vote depart from the criterion of the defense, which in turn rests on what was raised in Voto 4397-99 of 4:06 p.m. on June 8, 1999, which, in its Considering VI, which is *erga omnes*, explains that those terms are not properly of the statute of limitations but rather of reduction of the time limits for the processing of the procedure according to the idea of controlling its duration. But even rejecting this criterion, which would prevent retroactivity to the detriment of acquired rights of the defendant, there would be another criterion, also constitutional, which maintains that statute of limitations rules cannot be applied retroactively unless the legislator expressly provides for said retroactive application. According to the appellant, the Constitutional Chamber, in its Voto 4397-99, clearly established that laws govern towards the future, so their application backward would only be valid by express mandate of the law. In criminal procedural matters, it would not be prohibited for the law to be applied retroactively according to what it itself establishes solely for pending cases. The ground must be upheld. Article 62 of the Law against Corruption and Illicit Enrichment in the Public Function does not expressly contain an indication that it must be applied in pending causes or those to be initiated in the future, so it must be interpreted in a manner consistent with the Political Constitution and the *erga omnes* jurisprudence of the Constitutional Chamber, meaning that the aforementioned regulation will be applicable to the future. That is to say, article 62 of the LCC would only be applicable to causes initiated after October 29, 2004. If it was the will of the legislator to cover causes pending as of that date, they should have expressly indicated it, so that the effects of the later law could radiate to all causes initiated before the law's entry into force. The aforementioned law does not contain transitional provisions or an explanation in the "Statement of Motives" that would give arguments to consider a retroactive application of its provisions. Instead, the legislator's wording allows one to derive an interest in regulating towards the future, which is why verb forms such as "prescribirán" or "regirán" are used, which are foreseen in the Spanish language to imply the future. If the legislator's will were different, they should have expressed it clearly, alluding to the retroactive effects of the later procedural law. Judges, in effect, are prevented from performing functions proper to the legislator, and could not interpret effects that the procedural law expressly does not contain. The latter, above all, when the later procedural law could have retroactive effects contrary to the legal positions of the defendant, limiting their right to defense, their rights of intervention in the process, their right to release or, as now, to validly claim the running of the statute of limitations for the criminal cause. Procedural laws are designed to govern towards the future, so in good logic, and based on their interpretation in accordance with the Political Constitution, only those procedural provisions that have a more benign effect on the legal positions of the defendant would have retroactive effect. In the present case, the defendant [Nombre021] gave a statement after October 29, 2004; however, the cause had been initiated before that date and its provisions were not applicable to it, except for an express legislative provision which does not exist in the present case. It is for the foregoing that the statute of limitations period for [Nombre021] would have occurred as recently as May 30, 2006, and prior to the finality of the declaration of complex processing of this cause in July of that year or the summons to the preliminary hearing in September 2007. Both procedural moments are subsequent to the date on which the cause would have to be declared time-barred. Regarding the issue of declaring the cause as a complex proceeding, this Chamber had already pronounced against the retroactive effects that have been given to the declaration of complex processing of the cause. The reasoning supporting this conclusion has already been expressed when resolving Dr. [Nombre012]'s appeal, to which reference is made to avoid unnecessary reiterations. It is therefore appropriate to declare the cause against [Nombre021] time-barred and acquit them of the crime of Illicit Enrichment that had been attributed to them. **B.** Spurious Evidence. In the second ground of the appeal filed by [Nombre021], the erroneous application of the rules concerning the lifting of bank secrecy is raised, for which the banking evidence used to demonstrate the deposits in their favor is illicit and unusable for the conviction. He argues that his defense objected to the banking evidence coming from the Bahamas. The Court expressly ruled on this issue in Considering II. H. 1. As he explains, said banking evidence coming from the Bank of San José in the Bahamas, required in the CCSS-Fischel case, and provided as evidentiary material in this process, according to exhibits 543, 544 and 545, had been requested exclusively for the cause called CAJA-Fischel and not for this process. He indicates that an alteration of the English translations eliminated that express obstacle that the evidence would only be used in the CAJA-Fischel cause, and it is intended to prove with it the receipt of certificates of deposit by [Nombre021] with funds from ALCATEL and Servicios Notariales QC, which were deposited in the BAC BAHAMAS BANK LIMITED in that country. The defense thesis is that there was no judicial order to lift bank secrecy for the ICE-ALCATEL cause. The Court errs, according to him, because it affirms that the evidence comes from Banco de San José in the Bahamas, and that is its first false statement. It is not the Bank of San José in the Bahamas; it is an autonomous Bank, registered in that place, and not a branch of BAC San José, as the majority Court maliciously pretends to believe. It would involve two different banks and not a simple branch of the same. He alleges that a letter rogatory to the Bahamas was needed to request the banking evidence. If it had been the Bank of San José itself, it would have sufficed to request the information from BAC San José in the country. **His claim is correct and the ground must be upheld.** The bank domiciled in the Bahamas is not a simple extension of BAC San José, but rather a bank that has been founded according to the rules of another country, therefore the procedure to obtain banking information from said institution must be carried out through official channels and, of course, with a judicial order to lift bank secrecy. According to the majority vote (fl.

874) the aforementioned bank evidence obtained for one criminal case could be used for other criminal cases different from those for which it was originally obtained, with an interpretation that would lead to the absurd criterion that the Public Prosecutor's Office would only need to obtain judicial authorization for a single lift of bank secrecy to use that information in countless criminal cases, even decontextualized from those where the intervention was originally obtained. It is evident that this type of sensitive information must be requested, ordered, stored, used, and interpreted in a manner compatible with constitutional regulations. It could not be intended to reduce the value and essential content of the constitutional right to privacy of this type of information, solely for an extended interest of the prosecuting body, which also intends the use of this information without any context of a prior investigation, with a judicial order not expressly issued for said obtaining of information, and with effect in criminal cases not even opened when the original criminal investigation was decided. The usefulness value of bank evidence must be enabled by an entire process of request, obtaining, introduction, and judicial assessment that is contextualized in the criminal case where it has been requested. This latter point is fully compatible with an interpretation of the right to informational self-determination in the case of financial information, and regarding the effects of said information for the demonstration of 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 suspicion presuppositions available at the procedural stage in which the obtaining of the bank evidence is decided. Furthermore, the request must be directed, expressly, to the banking institution that holds the information in its databases. The right to informational self-determination contemplated in the constitutional program of Costa Rica, based on Article 24 of the Political Constitution, in full congruence with the erga omnes jurisprudence of the Constitutional Chamber, requires a certain threshold of suspicion of the commission of an illegal act and a weighing of the proportionality of the measure that impacts fundamental rights, in order to proceed to obtain the information. This must be assessed in each specific case, and therefore the request for the lift of bank secrecy cannot be generic and decontextualized from the case in which it is to be used. It is evident, then, that if the evidence obtained in the Bahamas cannot be used in the present case, the evidentiary connection with the deposits in benefit of [Nombre021] should be suppressed due to having affected constitutional guarantees. Now, the alleged correspondent relationship or reciprocal representation contract between BAC San José and Bahamas Bank Limited is another important matter that has not been demonstrated in this instance, and it is also not known if the aforementioned banks can exchange available information on their accounts by mere internal administrative request for the normal course of their financial activities. The judgment affirms that the order for the lift of bank secrecy from BAC San José was sufficient to lift bank secrecy also in the Bahamas, that is, in another territorial jurisdiction, and, of course, with other applicable legal norms. Bahamas Bank Limited, as the appellant correctly states, is not part of the Costa Rican banking system, so the lift order from the national system cannot affect a banking institution domiciled abroad. Arguing in that sense would lead one to think that an order issued for the national banking system would have to affect international banking, in any geographical context, which does not accord, for example, with the different banking regulations governing financial activity in various countries of the world. The sending of transfers from Costa Rica to another country does not convert the banks receiving said transfer into part of the national banking system. That they receive transfers is, of course, in response to a commercial practice that has been regulated with the objective of avoiding damages and losses to bank clients and to maintain the functionality of the international transfer system. Thus, the evidence obtained without any correspondent contract between the banks, and without the lift of bank secrecy, makes the information obtained illegal and unusable as evidence in the criminal process under examination. The effects already considered of the appeal filed by the defendants **<u>[Nombre001], [Nombre009], [Nombre015] and [Nombre021]</u> also apply. (Appeal visible at folios 17264 a to 17278 of Volume XXXVI), they raise in their brief, authenticated by Attorney José Miguel Villalobos Umaña, the nullity of evidence 588. This appeal was analyzed on the occasion of the study of the challenge by Attorneys Erick Ramos and Federico Morales on behalf of Mr. [Nombre015].** As stated there, the arguments to analyze this legal problem have already been explained earlier, when resolving the appeal filed by Dr. [Nombre012] (A-1). Thus, it is appropriate to apply to the defendant [Nombre021] the same effects that this determination had for the defendant [Nombre012]. The nullity of documentary evidence No. 588 and all evidentiary elements dependent on it is declared, the nullity of the criminal conviction rendered against [Nombre021] is declared, and in its place, he is directly acquitted of all penalty and responsibility. **<u>Second Section. Defects regarding the determination of the fact and the assessment of the evidence to determine the indications that led to the conviction for the crime of Illicit Enrichment.</u> <u>A.</u> Absence of the detailed determination of the fact that the court deems proven, in violation of Article 369 subsection b of the CPP.** The accused alleges that he has been attributed with illicit enrichment for receipt of gifts (dádivas). According to the judgment, in Considering X, folios 1555 in fine and following, the defendant is offered a gift and subsequently paid. In this regard, he questions the attribution of an offer of a gift, when said requirement is irrelevant for the criminal type of Illicit Enrichment. In reality, the receipt of the gift is punished. The offer or promise of a gift has no interest for the criminal prohibition regarding that specific criminal type; it does, of course, for different criminal types, where the offer of the gift is a requirement of the objective type. **The ground must be granted.** The general approach of the appeal in relation to the accused [Nombre021], regarding the fourth, fifth, and sixth grounds, starts from two essential premises: on one hand, an offer of a gift and an acceptance of the same by [Nombre021] has been accused and demonstrated, the Court says. The Court insists, then, on a remuneratory promise that occurs in a meeting at Café Ánfora in the Hotel San José Palacio, at 8:21 a.m. on August 17. Secondly, that Article 346, subsection c) of the Penal Code requires that the delivery of gifts occurs while remaining in office. In this regard, it is discussed, not only, the fractional delivery, but also the fact of five deliveries of money at times when [Nombre021] held no public office whatsoever. In this respect, the appellant is correct. The determination of the fact starts from an incorrect premise, that is, that the receipt of the eventual gift required its prior offer. This latter point, mainly by virtue of the conviction for illicit enrichment, which is an offense that has no connection, and should not have any, with the offer of a gift, that is, a remuneratory promise. The offer of a gift is central, for example, for the crime of Bribery (Cohecho) and for Corruption, since in these crimes the receipt of a gift or the acceptance of a remuneratory promise is directly aimed at performing an act proper to one's functions (improper bribery, Article 347 of the Penal Code) or to perform an act contrary to one's duties or to not perform or to delay an act proper to one's functions (proper bribery, Article 348 of the Penal Code). Thus, when the incriminated action does not require a specific doing or not doing, it would be in the presence of a mere act of illicit enrichment. Now, the imputation of events prior to the receipt of the gifts is achieved with the objective of linking, specifically, [Nombre021] spatially and temporally with the supposed strategies aimed at obtaining the contract for the 400,000 lines, where the intervention of [Nombre021] could have been marginal or of scarce interest. In any case, it is not determined what he did or failed to do; it only attempts to establish [Nombre021]'s responsibility based on a meeting, which, as has already been discussed and analyzed when resolving the preceding appeals, is proven with a restaurant service voucher at the Hotel San José Palacio. This document does not allow deriving the content of what was discussed on that occasion, and if, in effect, there was an effective promise of a gift. Events before and after that meeting do not allow deriving, with the certainty necessary for a conviction, that there was, in effect, an illegal promise that was accepted by those who participated there. Much less is there consistent proof that [Nombre021] accepted a gift that would be delivered in a fractional manner, which is the other element of analysis to consider. As analyzed in the appeal, it would be necessary to additionally assess whether the mere receipt of the gift is an indication of having accepted it, as the Trial Court seems to derive. The way in which the criminal type of Illicit Enrichment is constructed in the Penal Code does not require a prior promise, this is because it is a subsidiary figure that comes into application precisely when there is no proof of a crime against the duties of public office. Political-criminal reasons led to the introduction of the figure of illicit enrichment in the legal system to punish those cases of patrimonial increase of the official where there is no proof of the crime against the duties of public office that motivated that increase. It is a legal strategy to prevent impunity for these patrimonial increases and to bring the officials who hold them to justice. Hence the subsidiary nature of this figure, which would be displaced, then, when there is sufficient proof of the commission of a crime against the duties of public office. In the case of the criminal figure contemplated in the Costa Rican Penal Code, subsidiarity exists when there is proof of proper or improper bribery. This is not the case for the facts imputed to [Nombre021]. In Considering X-D, the issue of the receipt of the fractional payment of the gift is raised. According to the circumstances that the judges of the majority vote consider proven, there would have been an offer of 0.5% of the contract obtained (folio 1570 of the ruling), for which there is no specific determination in the ruling as to why this specific percentage is derived, but it is estimated that on that same day the fractional payment of that 0.5% was accepted. This emphasis is unnecessary, since the criminal type attributed to [Nombre021] does not require a prior promise. However, according to the ruling, not only was the promise of a gift made at that meeting but [Nombre021] accepted it, although it is still not known in exchange for what. The deduction occurs not only, the judges say, from the events that occurred before but also from those that followed. In this regard, there is no proof; no one stated what was said in that meeting, which could have been about any other topic, but there is a fixed conviction of the majority vote. This circumstance affects the defense rights of the accused, not only because he had to defend himself against a circumstance that is alien to the attributed typicality, that is, the remuneratory promise, when, on the other hand, the typical context reproached is for receiving the gift. It is for this reason that the establishment of facts in relation to the typical act of Illicit Enrichment has flaws, and causes, for these reasons as well, the nullity of the ruling against him. **<u>B.</u> The gifts were received when [Nombre021] did not hold the status of public official.** Regarding this topic, there are two claims: on one hand, that there was an acceptance of a gift paid in a fractional manner, that is, that the receipt of the gift is fractional. The criminal type of Article 346, subsection c) requires that gifts be admitted while remaining in the exercise of the office. It is proven that [Nombre021] ceased to be a deputy on April 30, 2002, and therefore, monies received outside that date would not be covered by the criminal prohibition. There would be a problem, at least, with the certificates of deposit received in the month of January 2002, when [Nombre021] was still a deputy. But the ground refers, for the moment, to the transfers and presumed gifts issued after April 30, 2002. The strategy of the conviction would be to link [Nombre021] to the payments made after April 30, 2002, as illicit enrichment, solely because he "accepted" them while being a deputy. In other words, [Nombre021], while he was a deputy, accepted gifts that would be paid in installments extending beyond his term as a legislator. The thesis collapses under its own weight, and affects the establishment of the fact with which he is charged, mainly because said configuration of the criminal type of Illicit Enrichment does not require, and could not do so, the prior promise, and, on the other hand, there is no proof, either, that said promise was verified, as the circumstantial elements in this regard are weak, amphibological, and do not withstand an analysis based on sound criticism (sana crítica). It is for this reason that the judgment must also be annulled for this reason. Now, regarding the payments received when [Nombre021] was still a deputy, the eighth ground of the defendant's appeal is pronounced, where it alleges **ERRONEOUS ASSESSMENT OF THE EVIDENCE WITH VIOLATION OF THE RULES OF SOUND CRITICISM (SANA CRÍTICA), INFRINGING ARTICLES 142, 184 AND 369 SUBSECTION D) OF THE CPP**. It criticizes, in the first place, that it concerns six certificates delivered to [Nombre021]. Considering X-D refers to what it calls the second delivery of the gift to [Nombre021]. The majority vote incorporates into its reasoning the thesis that [Nombre021] received six investment certificates from ALCATEL through a delivery made to him by the company Servicios Notariales QC. The appellant insists that there is an error incurred by the judgment, as there are not six certificates as stated at folio 1579; it is, in reality, four documents, whose numbering appears at folio 1580. All were issued on January 10, 2002, with a maturity date of February 11 of the same year, and acquired by the company QC from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars each. At Folio 1580, the Judges state that these titles were delivered by the accused [Nombre009] to the defendant [Nombre021] and that the latter admitted them from the former on February 11, their maturity date, and immediately endorsed and deposited them in his account at BAC San José. The Judges refer to evidence 417, which only demonstrates that [Nombre021] endorsed the titles and deposited them in his account, but in no way proves that [Nombre009] delivered them to him or the date on which such an event occurs, and this makes the reasoning void for being irrational and contrary to the rules of sound criticism. These are bearer instruments (títulos al portador), which circulate by simple delivery and whose transfer occurs without the need for endorsement on the back of the document, pursuant to Article 712 of the Commercial Code. According to this thesis, then, the instruments were transferred by simple tradition, so the title of their possessor is not recorded, which makes, for example, the instrument non-replaceable in case of loss, as one of the general rules derived from Article 712 of the Commercial Code. It is for this reason that it cannot be established that they were received directly from [Nombre009], as the judges try to maintain. There is a period of one month that elapses between when [Nombre009] withdraws the instruments and deposits them in his account, so it is possible that [Nombre009] delivered them to any other person, the latter in turn to another, and then the latter had them reach [Nombre021], without it being possible to presume that [Nombre009] gave them directly to [Nombre021]. The appellant questions the legal criterion expressed by the judges, by citing Article 717 of the Commercial Code, which was repealed 21 years ago, in 1990, by Law 7201. This article only referred to the fact that the instrument belongs to whoever has it in their possession, which no one has questioned. And that here, good faith and just title are presumed, as corresponds in application of the principle governing matters of movable property. But from this norm it is not derived, the appellant suggests, that it must be held that the initial acquirer is the one who must 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 determines that the title was transferred from whoever originated it to whoever appears as its holder before the teller or respective official of the banking entity, so in the specific case, it is inferred that it passed from [Nombre009] to [Nombre021]*”. In other words, since a chain of transferors cannot be verified, it must be assumed that it is the original acquirer who delivered it to the final possessor. This is not so, the appellant argues, and this is only true for registered instruments (títulos nominativos), which are transferred by endorsement, and not for bearer instruments, as were those being analyzed. On this, he explains: *“…The characteristic thing is that in these instruments the chain of transferors is absent, which is why it is a bearer instrument, therefore what the pair of Judges misses is what always occurs in this matter, that there is no chain of transferors because the documents are not endorsed. Therefore, it cannot be deduced from the above that it was [Nombre009] who delivered the documents to [Nombre021]. But the Judges also err when they point out that since the instruments have a legend on the back stating that they can only be deposited in the account of [Nombre021], this shows that [Nombre009] delivered them to him. One thing has nothing to do with the other; [Nombre021] receives the instruments from an undetermined person and endorses the documents with that legend to deposit them in his account, without referring at all to such a situation with the participation of [Nombre009]*…”. In general, he questions the entire judicial deduction that the deposit came from [Nombre009], considering it nonsense to suppose that because the deposit was made to the same account as other transfers, therefore, the depositor must have been [Nombre009]. He deems that this conclusion defies the rules of correct human understanding and the rules of commercial law. He estimates that, as it cannot be presumed that the deposit was made by [Nombre009], then that acquisition must be considered legitimate and legally correct, so the conduct would be unpunishable. In other words, the deliveries made when he was still a deputy, as a result of this uncertainty about the receipt of the instruments and their delivery channel, would also lead to the nullity of the ruling, as must in fact be declared. Indeed, the cited norm, Article 717 of the Commercial Code, was repealed, along with other articles of the Commercial Code, by Law No. 7021 of October 10, 1990. Regarding the transfer of bearer instruments, it is clear that this is done by simple tradition, in the sense that a prior endorsement is not needed, as is the case for registered instruments. Thus, for bearer instruments, material delivery is sufficient for their transfer to occur. The absence of a chain of transferors is thus explained by the fact that bearer instruments do not require being issued in favor of a specific person (Article 712 of the Commercial Code) and because their transfer is by simple tradition, even when they do not contain the clause “to bearer”. Civil jurisprudence (cf. Voto 19-88 of the First Chamber of the Supreme Court of Justice, at thirteen hours on May 11, 1988) has said that tradition, as the delivery of the thing, does not transfer ownership by itself, as it is still necessary that the delivery be the result of a legal business producing those effects. This is where the relevant doubt arises in favor of the defendant, regarding the reason for said tradition or material delivery of the documents that were delivered to him, since, as has been raised throughout this resolution, there is reasonable doubt about the reasons for the delivery of the documents. The doubt raised about the connection between the accused [Nombre009] and the delivery of the documents to [Nombre021] is sustained, then, by these two circumstances raised by the appellants: on one hand, the expression “simple tradition” of Article 712 of the Commercial Code, which should be understood in the sense that prior endorsement is not needed, which is necessary as “title” for the transfer of registered instruments. For bearer documents, therefore, material delivery is sufficient, and this fulfills this legal fact contemplated in the norm. The absence of a chain of acquirers that the commercial norm does not require, and the uncertainty of the legal reason for the deliveries of the documents, also operate in favor of the defendant and must be so declared. **<u>C.</u> A repealed criminal type was applied.** The ninth ground of [Nombre021]'s appeal discusses the validity of the criminal type applied in this case to convict him for the conduct of Illicit Enrichment. According to [Nombre021]'s thesis, Article 346, subsection 3) of the Penal Code was tacitly repealed by Article 32 of Law 6872 of June 17, 1983, called the Law on Illicit Enrichment of Public Servants (Ley sobre Enriquecimiento Ilícito de los Servidores Públicos). According to this, the 1983 legislation would be a special law over the general regulation of the Penal Code, thus repealing the criminal types that had been included in said Code and that form part of the new legislation. Article 26 of this 1983 law has several specializing elements. In the first place, the penalty ranging from six months to six years, and, secondly, that it threatened with penalty acts carried out by the former official within the year following the cessation of the office. Article 26 is, by all lights, much more specific and contains elements that encompass more varied conduct, considering illicit enrichment, not only the acquisition of goods of any kind or nature, and a generic provision that absorbs any receipt of money or goods. **The ground must be granted.** It is evident that the criminal provision of Article 346 of the Penal Code was repealed by Article 26 of the 1983 Law, which not only contains a description of the action of Illicit Enrichment but also adds specializing circumstances that allow encompassing more conduct of receiving goods, services, money, etc., which are threatened with a greater penalty. It is not, as the Majority Court says, a matter of two distinct conducts that can coexist because they cover different typical assumptions; it concerns two figures of Illicit Enrichment, where one is general and the other is special, contemplated in a later law, which, according to the rules of criminal interpretation, would repeal the general law, and obligates the application of the special law. The Constitutional Chamber itself, in its Voto No.

11584-2001, considered that some of the subsections of article 346 were repealed by Law No. 6872 of 1983, and that it should be expressly verified by the judges, in each case, whether or not said subsections apply, as is in fact done now when classifying the criminal offense under 346 of the Penal Code as repealed and inapplicable to the case against [Nombre021].<span style='mso-spacerun:yes'> </span>Now then, interpreted as it has been that the applicable article is Article 26 of Law No. 6872 of 1983, it must be taken into account that subsections a) and c) of that criminal offense were declared unconstitutional by the Constitutional Chamber in Vote No.<i>. 1707-95 of 3:39 p.m. on March 28, 1995, </i>and therefore would not be applicable to the species and the actions of [Nombre021] would become atypical. It is only as of the entry into force of Article 45 of Law 8422 of October 6, 2004, effective as of the 29th of that month, that the increase of assets in the exercise of office is again criminalized, which is not applicable to the acts charged because it is a substantive norm in force after those acts, pursuant to Article 11 of the Penal Code. This being so, the criminal offense for which Illicit Enrichment is charged is repealed and therefore it is appropriate to annul the conviction and acquit [Nombre021] of all penalty and responsibility for the acts attributed to him.<span style='mso-spacerun:yes'> </span>Notwithstanding, there is another reason, alleged in the tenth ground of the appeal, which produces the nullity of the judgment, because there was an application of article 346, subsection 3) in violation of the binding interpretation<span style='mso-spacerun:yes'> </span>of the Constitutional Chamber.<span style='mso-spacerun:yes'> </span>If this article were considered in force, which it is not, by virtue of the preceding reasoning, then the cited subsection must be interpreted in accordance with the <i>erga omnes</i> precedents of the Constitutional Chamber, as required by Article 13 of the Law of Constitutional Jurisdiction.<span style='mso-spacerun:yes'> </span>According to the provisions of subsection 3) of the cited Article 346 of the Penal Code, any gift presented or offered in consideration of the official's office becomes illicit, even if he has not performed any lawful or unlawful action, whether inherent to or contrary to his duties. The mere receipt of the gift is already criminal. The Constitutional Chamber, in the aforementioned vote 1707-95, in its Considerando III, already required that the prosecuting body <span class=GramE>must</span> demonstrate the illicit origin of the public servant's assets and that it is not enough to prove the receipt of the money, much less to obligate the accused to prove its lawfulness. For this, the Chamber based itself on what was <i>explained in Vote 5171-93 and maintained it without any doubt, for which it declared unconstitutional the norms of Law 6872 that had replaced the crime of illicit enrichment. But even clearer was the Constitutional Chamber in its Vote 11584-01 of 8:53 a.m. on November 9, 2001, when it heard, through a facultative legislative consultation, the bill of the Law against Corruption that gave rise to Law 8422. At the end of Considerando IV, the Chamber states, drafted by Magistrate Arguedas Ramírez, that the Constitution is violated by attempting to penalize the official for the mere increase of assets WITHOUT DEMONSTRATING THAT SAID INCREASE HAS A NEXUS WITH AN ILLICIT ACTIVITY, thus infringing the principle of innocence by indirectly obligating him to prove the origin of his assets.<span style='mso-spacerun:yes'> </span></i><b>In this aspect, the appeal filed must also be granted. </b>It is not enough to demonstrate that the official's assets have increased; it is also necessary to demonstrate that the cited increase was the product of an illicit activity, because otherwise there would be a reversal of the burden of proof, and it would have to be the official who has to demonstrate the origin of the cited asset increase.<span style='mso-spacerun:yes'> </span>To maintain that this is possible goes in direct contradiction with the precedents cited by the appellant of the Constitutional Chamber, and provides yet another reason to produce the nullity of the ruling.<span style='mso-spacerun:yes'> </span><b><u>D.</u> The ordered forfeiture of CERTIFICATE NUMBER [Valor026] RENEWED ON [Valor027] WITHOUT ANY BASIS, REASONING, OR SUPPORT, is not valid</b>.<span style='mso-spacerun:yes'> </span>[Nombre021] criticizes the forfeiture of the certificate <b>NUMBER [Valor026] RENEWED ON [Valor027], </b>because the court does not provide the basis for the reason for the forfeiture or its causal relationship with the act.<span style='mso-spacerun:yes'> </span>It is not enough, he says, to mention the literal wording of Article 110 of the Penal Code to deem the basis in this regard correct.<span style='mso-spacerun:yes'> </span>It is necessary to commission of the act or if they are effects or gains therefrom.<span style='mso-spacerun:yes'> </span>Only at folios 1896 to 1898 are the requests for forfeiture resolved, which both the Public Prosecutor's Office and the Procuraduría General de la República make in their conclusions.<span style='mso-spacerun:yes'> </span>Point 9 includes a certificate of time deposit with the number [Valor027], which is neither described nor is its nature and reason indicated. At the beginning of folio 1897, the majority thesis is summarized and it is indicated that the effects of the crime, the means or instruments used in its preparation and execution, and the gains derived from its commission are being ordered forfeited, which is nothing more than the reiteration of what is indicated by Article 110 of the Penal Code. All of this leaves an important aspect of the judgment without reasoning and leaves no possibility of knowing what the criterion was by which it was decided that this certificate should be forfeited.<span style='mso-spacerun:yes'> </span><b>He is right in his claim, the ordered forfeiture must be annulled.<span style='mso-spacerun:yes'> </span></b>It has already been said that the mere mention of Article 110 of the Penal Code is not sufficient reasoning to establish the forfeiture of assets in favor of the State. It is for this reason that it is appropriate to annul the decision of the Majority Judges and resolve that this forfeiture is inadmissible and order the return of the corresponding sum to its legitimate owner.<span style='mso-spacerun:yes'> </span><b><u>F.</u><span style='mso-spacerun:yes'> </span>There is no mention of the issue of civil actions or of the order to pay costs against the civil plaintiffs.<span style='mso-spacerun:yes'> </span></b>It is argued that the civil indemnification actions are not rejected and the parties are generously directed to the ordinary civil venue to settle their claims in this regard. He indicates that the defense attorneys opposed the civil actions filed by the public institutions, especially, regarding the defendant [Nombre021].<span style='mso-spacerun:yes'> </span>Despite the fact that the civil action of ICE is said to lack a factual basis to support its claims, which also prevents the court from ruling on the merits thereof (cfr. fl. 1862).<span style='mso-spacerun:yes'> </span>The defects of the civil action regarding the appellant are highlighted at folio 1877. He considers that what was correct according to law would have been the rejection of the civil action and the order to pay costs, and not to interpret that there was a legal solution to allow the filing of the action in the ordinary venue. Regarding the civil action of the Procuraduría General, the court even indicates at Folio 1884 that “... <i>the conclusion is reached that there is no social damage for which all the defendants and eventually third parties must respond jointly and severally</i><span class=GramE>.’’</span> Further on, other errors of that action are added, such as that the Court should almost do the work of the civil plaintiff, for which Folios 1887 and the final paragraph of 1890 are absolutely clear.<span style='mso-spacerun:yes'> </span>He claims, if such are the errors, the corresponding action would be the rejection of the action and an order to pay costs, but the Court prefers to “lend a hand” to the civil plaintiffs. He requests, consequently, that this decision be annulled and both civil actions be deemed rejected, for not meeting the minimum requirements for their consideration. He insists that what is appropriate in the present case is the order to pay costs against the civil plaintiffs in application of Article 270 of the Criminal Procedure Code, by virtue of the multiple errors and defects that the judges themselves recognize exist in their procedures. Additionally to this, he emphasizes that the court fails to fulfill its legal duty<span style='mso-spacerun:yes'> </span>regarding what is established in the law, because no matter how much it is said that the case is complex, the civil defendants cannot be blamed for having contributed to the failure of the actions for not having warned of these errors in a timely manner, when that was not their task. He considers that in a Rule of Law State, a lawsuit for millions of dollars, full of ramblings and legal errors, cannot be permitted, and let everything occur without consequences. If this were done, there would be no way to order civil plaintiffs to pay costs, whatever their conduct. If these are complex cases, like the present one, the civil plaintiffs must take more care when presenting their claims and when litigating.<span style='mso-spacerun:yes'> </span>It is evident that the civil actions should have been rejected and not just omit a ruling on them, as indicated in the previous point.<span style='mso-spacerun:yes'> </span>He requests that the exemption of costs for the civil plaintiffs be annulled and that they be ordered to pay under this item as ordered by the corresponding legislation. The issue of the order to pay costs and the issue of civil actions <span class=GramE>must</span> be elucidated in a new trial in this regard.<span style='mso-spacerun:yes'> </span>This Chamber has already ruled on the issue of civil indemnification actions, the absence of an order to pay costs, and the interpretation made by the majority court regarding this issue, at the time of resolving the appeal of Christian Arguedas in favor of Dr. [Nombre012].<span style='mso-spacerun:yes'> </span>It was considered that what was decided on the issue was a very clear denial of access to justice <span class=GramE>based</span> on formalisms that have no basis in Article 112 subsection d) of the Criminal Procedure Code, an error that must be corrected.<span style='mso-spacerun:yes'> </span>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.<span style='mso-spacerun:yes'> </span>In the same manner, in a remand trial, a decision must be made on the issue of costs, and on whether or not there was plausible reason to litigate: not deciding on the merits of the civil actions caused an error that affects the definition of the issue of costs, which undoubtedly causes grievance to the parties.<span style='mso-spacerun:yes'> </span>It is for this reason that, when resolving the appeal of attorney Arguedas, it was considered that the effects of his challenge <span class=GramE>favor</span> the other civil co-defendants, as it is not based on exclusively personal grounds.<span style='mso-spacerun:yes'> </span>It is for this reason that the judgment has already been annulled in its civil aspect, insofar as it ordered to omit a ruling regarding the substantive right discussed in relation to the civil actions filed, as well as what was decided on costs, and the remand of the process is ordered to the competent court for the new substantiation of these extremes. </span><span lang=ES-CR style='color:black;mso-ansi-language: ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><b><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span>XIII.- <u>THE APPEAL FILED BY ATTORNEY HUGO SANTAMARÍA LAMICQ IN FAVOR OF THE DEFENDANT [Nombre018] (R.I.P.) IS RESOLVED.</u><span style='mso-spacerun:yes'> </span><u>A.</u></span></b><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'> Attorney Hugo Santamaría Lamicq, in his capacity as defense counsel for the accused [Nombre018] (R.I.P.) filed a cassation appeal against judgment No. 167-2011, of 3:00 p.m. on April 27, 2011, issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, both in the criminal and civil aspects. As grounds for the criminal conviction, he invoked violation of due process and lack of reasoning of the judgment, for incorporation of illicit evidence; non-observance of the principle<i> in dubio pro reo</i>, as well as violation of the rules of sound judgment;<span style='mso-spacerun:yes'> </span>illegitimate reasoning due to absence of assessment of elements of decisive value for the solution of the case; erroneous application of Articles 345 and 341 of the Penal Code, with violation of numerals 2 of the Organic Law of the Judicial Branch and 39, 41, <st1:metricconverter ProductID=\"46 in\" w:st=\"on\">46 in</st1:metricconverter> fine, and 154 of the Political Constitution; lack of reasoning for the imposed penalty and injury to the principle of proportionality; also the lack of reasoning regarding the order to pay personal costs. Regarding the civil conviction, as the sole ground for challenge he alleges: <i>“Lack of reasoning of the judgment. Illegal omission of a ruling regarding the civil indemnification action brought by the Procuraduría General de la República. Violation of the Principle of Congruence by Citra Petita. Violation of due process and principles of effective judicial protection and access to justice. Violation of Articles 1, 142, 184, 361, 363, 369 of the Criminal Procedure Code, Articles 2, 5, 152, 153 of the Organic Law of the Judicial Branch; 39 and 41 of the Political Constitution, 155, 277 of the Civil Procedure Code”</i> (Cfr. folio 17048 vto. and 17049 fte.) He explains that the trial court omitted a ruling on the civil indemnification action formulated by the Procuraduría General de la República against his represented party, with the following arguments: <b>(i)</b> Not all the defendants had participated in the criminal acts charged. <b>(ii)</b> Therefore, there is no damage for which all the accused and eventually third parties must respond jointly and severally. <b>(iii)</b> It was necessary to specify the damages and the claims for each “group of jointly and severally obligated parties” (according to determination made in the judgment); and not as was done, giving a global estimate and the request for conviction, as if all the defendants and the legal entities involved were jointly and severally liable debtors for a total damage. <b>(iv)</b> The Procuraduría General de la República, when claiming social damage, could not demand the total joint and several liability of all the civil defendants without differentiating each case, among the various groups of jointly and severally liable debtors. <b>(v)</b> A ruling on the matter obligated the Court to disaggregate the different groups of jointly and severally liable debtors, to specify the attributed acts and, therefore, the damage they could have caused to the Instituto Costarricense de Electricidad, and to the collective and diffuse interests represented by the Procuraduría General de la República. A task that, if carried out by the Court, would involve it in the tasks proper to the civil plaintiff party, compromising the objectivity of the judges and violating due process. <b>(<span class=GramE>vi</span>)</b> The civil defendant parties did not allege the defects of the civil action in previous stages, with which, they have a share of responsibility in the impossibility of the Court to rule on the merits of the allegations, claims, and exceptions formulated. <b>(vii)</b> He alleges the existence of a defective procedural activity, without it being possible to remedy it. The petitioner points out that if a defect exists in the claims of the civil action, it is not admissible to expect the civil defendant to alert about it and, on the contrary, if the civil plaintiff party acted deficiently, it is their responsibility; the foregoing, as ordered by the dispositive principle and its corollaries, the sub-principles of availability of the interested party, of party initiative, of congruence, and of waiver. Regarding the passive joint and several liability and the determination of the admissibility of the claims of the plaintiff <i>“… it is clear that these are aspects of a substantive nature that must ultimately be determined by the Judges, in accordance with the facts held as proven in the case and not a formal defect relating to the admission or processing of the civil action that should have been prevented in accordance with the rules of remedy in numeral 15 of the Criminal Procedure Code.”</i> (Cfr. folio 17052). Further on he adds: <i>“If, according to the facts held as proven by the sentencing court, ‘there is no damage for which all the defendants and eventually third parties must respond jointly and severally’ and it is determined that the Procuraduría General de la República ‘could not demand total joint and several liability from all the civil defendants, without differentiating, as was appropriate in this case, between the different groups of debtors,’ it is true that it is not up to the court in any way ‘to disaggregate the different groups of jointly and severally liable debtors, determine the specific acts attributable to them, and determine the eventual damage that those acts could have caused.’ And it effectively cannot do so by virtue of the principle of congruence, the dispositive principle, and out of respect for the right of defense of the civil defendant. From this perspective and being clear that the ‘defects’ indicated by the court are of a substantive nature, the court should have resolved, in accordance with the elements contained in the final judgment, the matter relating to the civil claims.”</i> (Cfr. folio 17052).<span style='mso-spacerun:yes'> </span>He questions the criterion expressed by the court, as he considers that defects of a substantial nature such as those invoked could not be subjected to remedy and, on the contrary, the situation described by the court obligated them to rule on the merits of the civil actions filed and adds: <i>“… the court must rule in accordance with what was alleged and proven by the parties: The judge takes cognizance of no facts other than those the parties invoke, nor other evidence than that which they present. His judgment must be fixed within the limits of the claims deduced by the plaintiff and that which the defendant knows or controverts; if it goes beyond, it will be ultra petita if it resolves more than what was requested or extra petita if it resolves outside of what was requested, and both hypotheses produce the nullity of the ruling for violating the dispositive principle by resulting in incongruent judgments. For this reason, this characteristic has been called the ‘principle of congruence’ of judgments, and according to it, the court must resolve everything the parties request, but no more and no less…”</i> (Cfr. folio 17054)<span style='mso-spacerun:yes'> </span>He indicates that in addition to incongruence due to extra or ultra petita, there exists incongruence due to citra petita (or minima petita), by failing to resolve one of the points requested, in infringement of the provisions of Article 155 of the Civil Procedure Code, which states: <i>“the judgments must resolve each and every one of the points that have been the subject of debate…”</i>; as also regulated by Article 361 subsection e) of the Criminal Procedure Code, regarding deliberation and voting. All of which generates a defect in the ruling, as established in Article 369 subsection g) in relation to 361 subsection e) and 363 of the Criminal Procedure Code. Therefore, the court should have resolved and, in view of the committed errors, declared the civil action filed without merit, with the promoter having to assume the consequences of their negligent conduct.<span style='mso-spacerun:yes'> </span>He explains that as an effect of the request presented by the party, the preventive attachment of assets owned by [Nombre018] was ordered, specifically, the Property registered in the Public Registry of Property, Province of San José, number [Valor052], vehicles with plates [Valor053], [Valor054], [Valor055] and [Valor056]. All of which caused him damages and losses, given the immobilization of his assets and the impossibility of freely disposing of his property. Additionally, the declaration without merit of the civil claims should have generated the order for damages and losses against the promoter. He states: <i>“The illegal maneuver carried out by the court regarding the lack of ruling on the merits of the civil indemnification action, has as its objective and consequence the rejection of the order for damages and losses that is evidently appropriate. Thus, although the lifting of the attachments is ordered, the court provides that ‘since a ruling regarding the merits of the civil actions and the claims formulated has been omitted, the lawsuit has not been definitively dismissed, which is the normative prerequisite for the admissibility of the order for damages and losses, and on the contrary, the parties may settle their differences in the civil venue, so that a complete adjustment is not given between the provisions of numeral 277 of the Civil Procedure Code and the situation presented in this process, without it being possible to extend the scope of numeral 277 of the Civil Procedure Code by interpretive means, because that would imply an extensive interpretation of a punitive norm.’ The illegal referral to another jurisdiction avoids the just compensation ordered by procedural law by reason of the indicated patrimonial affectation. In this way, the court deliberately and illegally releases the civil plaintiff from compensating the damages and losses caused, leaving it to their discretion to go to another venue or not, making the appropriate compensation impossible.” </i>(Cfr. <span class=GramE>folios</span> 17057 and 17058). He requests that the challenged judgment be revoked in this extreme and that the civil indemnification action filed against [Nombre018] (R.I.P.) be declared without merit <span class=GramE>and that </span>the Procuraduría General de la República be ordered to pay the damages and losses caused by reason of the preventive attachment ordered. Subsidiarily, that the judgment be annulled in this aspect and the remand of the case be ordered.<span style='mso-spacerun:yes'> </span><b><u>B.</u></b> Subsequently, upon the death of the accused [Nombre018] (R.I.P.), attorney Hugo Santamaría Lamicq, requests that a judgment of definitive dismissal be issued in favor of his represented party (cfr. folios 171948 and 171949, 171980, <st1:metricconverter ProductID=\"173380 a\" w:st=\"on\">173380 to</st1:metricconverter> 173382).<span style='mso-spacerun:yes'> </span>The petitioner explains that the accused [Nombre018] died at 11:20 p.m. on November 17, 2011, as stated in the Death Declaration Certificate number 118392 (which he attaches), therefore, the appropriate course is to issue a judgment of definitive dismissal due to extinction of the criminal action because judgment No. 167-2011 issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, having the cassation appeal filed against it, is not final. The foregoing, in accordance with the provisions of Article 30 subsection a) in relation to 311 subsection d) of the Criminal Procedure Code. Regarding the civil indemnification action, he states that as it cannot survive, in application of the principle of accessoriality, he requests the immediate lifting of the attachments managed by the Procuraduría General de la República, on the property registered in the Public Registry of Property, province of San José, number [Valor052] and the vehicles with plates [Valor053], [Valor054] and [Valor056]. In addition to that, he requests that the cancellation of the mortgage granted by reason of a precautionary measure, unsustainable today, be ordered, and adds: <i>&quot;By resolution of four twenty in the afternoon on November eighth, two thousand four, of the Criminal Court of the Second Judicial Circuit of San José, my defendant was imposed, among other precautionary measures, the posting of a real bond for 200 thousand dollars (United States currency), which was constituted by granting a first-degree mortgage on the Property registered in the Public Registry of Property, Province of San José, number [Valor052], in favor of the Supreme Court of Justice for that amount. Such precautionary measure was lifted in the year two thousand eight, without the respective lien being canceled&quot; </i>(Cfr. folio 171949).<span style='mso-spacerun:yes'> </span>He requests that what has been petitioned be resolved, it being only necessary to corroborate the death of [Nombre018] (R.I.P.).<span style='mso-spacerun:yes'> </span><b><u>THE FILED APPEAL IS RESOLVED. First Section.-</u></b> <b>The request for dismissal due to extinction of the criminal action is granted.-</b><span style='mso-spacerun:yes'> </span>In order to resolve the petition for dismissal, it is necessary to consider the following aspects: <b>(i)</b> The defendant [Nombre018] (R.I.P.) was accused for acts described throughout the accusation formulated by the Public Prosecutor's Office (from folio <st1:metricconverter ProductID=\"422 a\" w:st=\"on\">422 to</st1:metricconverter> 434), admitted by the Criminal Court of the Treasury and Public Function, by resolution of four in the afternoon on October seventh, two thousand eight (cfr. folios <st1:metricconverter ProductID=\"10421 a\" w:st=\"on\">10421 to</st1:metricconverter> 10816). <b>(ii)</b> After the oral and public trial was held, by majority vote, [Nombre018] (R.I.P.) was declared <i>&quot;... a co-perpetrator responsible for a crime of PENALTY OF THE CORRUPTER for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY regarding [Nombre027], and perpetrator responsible for a crime of PENALTY OF THE CORRUPTER for PROPER BRIBERY in relation to [Nombre026], both to the detriment of PROBITY IN PUBLIC FUNCTION, imposing a penalty of FIVE YEARS OF IMPRISONMENT for the first and FIVE YEARS OF IMPRISONMENT for the second, for a total of TEN YEARS OF IMPRISONMENT, sanction that must be served in the place and form determined by the respective penitentiary regulations, once the pre-trial detention that he has served has been deducted.&quot;</i>.<span style='mso-spacerun:yes'> </span><b>(iii)</b> Attorney Hugo Santamaría Lamicq, in his capacity as defense counsel for the accused [Nombre018] (R.I.P.) challenged the referenced judgment. <b>(iv)</b> The defendant [Nombre018] (R.I.P.) died in San José, in the Intensive Care unit of Hospital San Juan de Dios, at 11:20 p.m. on November 17, 2011, due to respiratory failure, COPD exacerbation<span style='mso-spacerun:yes'> </span>COPD IV (Cfr. folios 171950 and 171981). <b>(v)</b> But in addition to the argument presented by the technical defense of the accused, this Chamber observes that an additional cause of extinction of the criminal action has operated, the statute of limitations. According to the parameters established <i>supra</i> in the matter of the statute of limitations for the criminal action, it is established that the initial limitation period for the criminal action of the accused [Nombre018] (R.I.P.) was five years for the crime of penalty of the corrupter for aggravated corruption in the modality of improper bribery (according to the relationship of Articles 31 of the Criminal Procedure Code; as well as 340, 342, and 345 of the Penal Code, since the maximum term of the penalty is five years); whereas regarding the crime of penalty of the corrupter for proper bribery, the limitation period is six years (according to the relationship of Articles 31 of the Criminal Procedure Code; as well as 341 and 345 of the Penal Code). Given the impossibility of applying Article 62 of Law No. 8422, it must be considered that after the initiation of the criminal procedure, these indicated periods (five and six years, respectively) are reduced to half for the purposes of the interruption and suspension of the statute of limitations (that is, two and a half years, and three, respectively). It is evident in the case file that the accused [Nombre018] (R.I.P.), was questioned on the first day of November two thousand four (cfr.

folio 767, Volume II) and the next act interrupting the statute of limitations occurred when the preliminary hearing was convened for the first time (as established in Article 33 of the Code of Criminal Procedure (Código Procesal Penal)), a procedural act that took place on September tenth, two thousand seven (ruling of one thirty p.m. on December tenth, two thousand seven, folios 8452 and 8453, Volume XX); consequently, the extinction of the criminal action was caused, but only with respect to the first of the attributed offenses, that is, for the offense of penalty of the corruptor for aggravated corruption in the modality of improper bribery. In any case, the death of the accused [Name018] (R.I.P.) having been verified, in accordance with the provisions of subsection a) of Article 30 of the Code of Criminal Procedure (Código Procesal Penal), the criminal action filed against him is declared extinguished, and consequently, pursuant to the provisions of Article 311, subsections d) and e) of the same normative text, a definitive dismissal (sobreseimiento definitivo) is ordered in his favor for one offense of PENALTY OF THE CORRUPTOR for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY regarding [Name027], as well as for one offense of PENALTY OF THE CORRUPTOR for PROPER BRIBERY in relation to [Name026], both to the detriment of PUBLIC FUNCTION PROBITY. By virtue of what has been resolved and for procedural economy, a ruling on the grounds of the appeal filed is omitted with respect to the criminal liability of the defendant [Name018] (R.I.P.). **Second Section.- Regarding the civil claims.-** Regarding the civil claims filed, this Chamber has already accepted the objections presented by attorney Cristian Arguedas Arguedas, who challenged the lower 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 (ICE); applying the extensive effect and ordering a remand for a new proceeding on these claims in accordance with the Law. However, as has been resolved on other occasions *(Cf. from the Tribunal de Casación Penal, rulings No. 492-F-1998, of ten hours twenty minutes on July thirteenth, nineteen ninety-eight; No. 437-2006 of nine hours on May twelfth, two thousand six; as well as from the Sala Tercera de la Corte Suprema de Justicia, rulings No. 861-2002, of ten hours on August thirtieth, two thousand two and No. 67-2004, of eleven hours five minutes on February sixth, two thousand four)* the judgment of dismissal or acquittal does not imply an impossibility to rule on the civil action or its automatic rejection; moreover, the Sala Constitucional de la Corte Suprema de Justicia, in ruling No. 3603-93 of fourteen hours and two minutes on July twenty-seventh, nineteen ninety-three, established that upholding a civil action for damages in an acquittal judgment did not constitute a violation of the guarantee of due process, nor of the right of defense: *“THIRD: Regarding the point under analysis, this Chamber considers that there is no violation of the principles of due process in the appealed judgment, since Articles 11 and 398 of the Code of Criminal Procedure (Código de Procedimientos Penales) provide the necessary legal basis to allow the judge to rule on the Civil Action for Damages and uphold it even when the judgment is one of acquittal. FOURTH: In relation to the acquittal judgment, there are several scenarios in which it can be issued, but in all cases of acquittal, what is affirmed is the non-punishability of the accused, without this implying that his innocence is being affirmed, because this is not the case in all acquittal scenarios. Thus, the content of the acquittal no longer implies the non-existence of the crime, but has evolved to become a negative institution whose content translates into the non-punishability of the accused; however, based on the fact that the criminal action and the civil action are different and independent from each other and proceed together only for reasons of procedural economy, the fact that one is acquitted regarding the criminal action does not imply that one must also be acquitted regarding the civil action. Thus, acquittal for purely criminal reasons does not prevent a ruling on the civil action and specifically its acceptance by the criminal authority, in accordance with Article 11 of the Code of Criminal Procedure (Código de Procedimientos Penales), which, in relation to Article 398 of the same normative body, empowers the Judge, even when acquitting, to order the requested restitution, indemnification, or reparation. This being so, the application of such articles by the judge is in compliance with the principle of legality, which is a fundamental guarantee integral to Due Process. Therefore, it is not possible to admit that the Court has failed to comply with Due Process, since its action is fully protected by procedural norms.”* The preceding citation, despite mentioning norms of the Code of Criminal Procedure (Código de Procedimientos Penales), is fully applicable to what is regulated in the current Code of Criminal Procedure (Código Procesal Penal). The third paragraph of Article 40 of that normative body provides on the subject: *“The acquittal judgment shall not prevent the court from ruling on the validly exercised civil action for damages, when appropriate.”* A hypothesis equally applicable in the case of judgments of definitive dismissal (sobreseimiento definitivo), whether due to the statute of limitations of the criminal action (since the causes for civil statutes of limitations are different from those established in criminal matters), or due to the death of the civil defendant, **although in this case the procedure established in the civil jurisdiction must be followed in order to provide representation in the criminal process to the estate of the civil defendant** [Name018] (R.I.P.). A thesis consistent with the provisions of Article 96 of the Criminal Code (Código Penal): *“… The extinction of the criminal action and the penalty shall not produce effects with respect to the obligation to repair the damage caused, nor shall it prevent the seizure of the instruments of the crime.”* For procedural economy, an express ruling on the objections formulated is omitted, as they deal with substantive aspects that must be examined precisely in the remand already ordered regarding the claims of the civil action for damages of interest. **Third Section.- On attachments and others.** Attorney Hugo Santamaría Lamicq requests the lifting of the attachments managed by the Procuraduría General de la República on the property registered in the Public Property Registry (Registro Público de la Propiedad), province of San José, number [Value052] and vehicles with license plates [Value053], [Value054] and [Value056]; he also requests that the cancellation be ordered of the mortgage granted by reason of a precautionary measure (medida cautelar) that is currently unsubsisting, adding: *“By resolution of sixteen hours twenty minutes on November eighth, two thousand four, from the Criminal Court (Juzgado Penal) of the Second Judicial Circuit of San José, my defendant was imposed, among other precautionary measures, the provision of a real bond (caución real) for 200 thousand dollars (United States currency), which was constituted by granting a first-degree mortgage on the Property registered in the Public Property Registry (Registro Público de la Propiedad), Province of San José, number [Value052], in favor of the Corte Suprema de Justicia for that amount. Such precautionary measure was lifted since two thousand eight, without the respective lien being canceled”* (Cf. folio 171949). In the *sub examine*, this Chamber verified that indeed, by resolution of fourteen hours thirty minutes on March eleventh, two thousand five, the Criminal Court (Juzgado Penal) of this judicial circuit accepted the attachment request made by the Procuraduría General de la República and, regarding the accused [Name018] (R.I.P.), the following assets were disposed: 1) vehicle make Volkswagen, model 2001, license plates [Value053]; 2) vehicle make BMW, model 1989, license plates [Value054]; 3) vehicle make Mercedes Benz, model 1985, license plates [Value055]; 4) vehicle make Toyota, model 1976, license plates [Value057]; 5) properties located in Partido de San José, registration numbers [Value058] and [Value052] (cf. folio 84 Docket of civil action for damages). However, in a subsequent resolution (of eleven hours on July twenty-first, two thousand five, folio 311 of the docket of civil action for damages) and at the request of the defense counsel for [Name018] (R.I.P.), it was ordered to lift the previously decreed attachment regarding the property in Partido de San José [Value058] because said property is subject to the family patrimony regime. Nonetheless, in view of the remand ordered for the discussion of the civil claims, the request for cancellation of the attachments carried out is rejected. On the other hand, this Court verifies that by resolution of sixteen hours twenty minutes on November eighth, two thousand four, the Criminal Court (Juzgado Penal) of the Second Judicial Circuit of San José imposed on the defendant [Name018] (R.I.P.), among other precautionary measures, the provision of a real bond (caución real) in the sum of two hundred thousand dollars (cf. folios 445 to 468 of the Docket of Precautionary Measures). The accused, in order to cover the imposed real bond (caución real), constituted a first-degree mortgage on property number [Value052], by means of deed number [Value059] of notary [Name086] (cf. folios 481 to 486 of the Docket of Precautionary Measures). Consequently, the lower Court is ordered to proceed with the return of any bond (caución) provided in favor of [Name018] (R.I.P.) for the concept of a precautionary measure; ordering the cancellation of the first-degree mortgage on the property registered in the Public Property Registry (Registro Público de la Propiedad), Province of San José, number [Value052], in favor of the Corte Suprema de Justicia, granted as a real bond (caución real) in the sum of two hundred thousand dollars.

**XIV.- APPEAL FILED BY THE PUBLIC PROSECUTOR'S OFFICE (MINISTERIO PÚBLICO).** Attorneys Maribel Bustillo Piedra and Criss González Ugalde, representatives of the Public Prosecutor's Office (Ministerio Público), file a cassation appeal by adhesion to the cassation appeals filed by the parties, against resolution No. 167-2011, of 3:00 p.m. on April 27, 2011, issued by the Criminal Treasury Court (Tribunal Penal de Hacienda) of the Second Judicial Circuit of San José. In the sole ground invoked, *“erroneous interpretation of the constitutional norm of Article 24 of the Political Constitution (Constitución Política) and non-application of numeral 7 of the same normative body”* is alleged (Cf. folio 171422). They explain that in this same case, the Criminal Court of the Public Treasury (Tribunal Penal de la Hacienda Pública) of the Second Judicial Circuit of San José, by resolution of eight hours on May fourteenth, two thousand ten, ordered: *“SECOND PART: By unanimity, the protest for defective procedural activity is partially rejected. There is no basis to declare lawful the evidence referred to in points 563, 564, 574 to 581, 584 and 585 and consequently, neither to admit it as evidence for better resolution (...)”*. The foregoing was in response to a protest raised by them, after the judge of the intermediate stage, in the order to open trial, denied the use of the evidentiary material related to various judicial assistance requests made to the Republic of Panama, specifically evidence points 563, 564, 574 to 581, 584 and 585. The base argument for the exclusion of the evidence alluded to the necessity of a request by a Costa Rican judge to collect it, as the lifting of bank secrecy had to be ordered. They recount that it was established regarding the matter of interest: *“-under the protection of the Costa Rican Fundamental Law, the restriction of the right to privacy for the investigation of criminal matters is appropriate provided that: i) there exists an order from a Court of the Republic that so determines, a condition required by the cited constitutional norm insofar as it establishes that it is the ‘Courts of Justice’ that are competent to order the seizure, registration, or examination of private documents, a requirement also stipulated in Articles 2 and 3 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications (Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de las Comunicaciones), No. 7425, and 107 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), among others; and ii) when it is ‘absolutely’ indispensable to ascertain the truth, in accordance with the constitutional provision and the ordinary norms outlined, with Article 2 of the special legislation determining its usefulness as proof of some criminal conduct.(...)Hence, the jurisdictional authorization, far from being a mere formality, legitimizes the ordered intrusion into a person's private sphere, attributing to such body the responsibility of admitting it only when strictly indispensable. (...) In summary, the impartial, independent, and previously constituted judge is the competent body to make the decision to affect the right to privacy of the holder (as the Sala Constitucional has also interpreted, among others, in resolution No. 1427-1996). It is not, then, a function nor a power of the representatives of the Public Prosecutor's Office (Ministerio Público), nor of the Attorney General of the Republic (Fiscal General de la República), to request and access confidential information about persons. As interpreted from the constitutional norm cited above, the system of guarantees in force in Costa Rica determines that the only competent body to weigh and order the interference in the private sphere of individuals is a Court of Justice of the Republic. (...) Lastly, it is important to highlight that although bank secrecy does not have constitutional but rather legal rank (in this sense, for example: resolutions No. 3229-1995 and No. 5507-1994 of the Sala Constitucional of the CSJ), the truth is that insofar as it entails the protection of the privacy of current accounts, it is a guarantee in favor of the account holders that there exists a prior jurisdictional authorization to access its content. (...) Regarding the privacy of other forms of registration of private information, regardless of the place where such data is located, the conditions stated in the constitutional norm and its legal development subsist when its evidentiary effectiveness is sought in a local judicial process. In other words, if for the purposes of a criminal investigation the seizure and analysis of private documents safeguarded in a financial entity located abroad, which does not have a legal domicile in Costa Rican territory, is required, the guarantees and requirements mentioned in the previous section must be complied with. Acting in a contrary manner implies the violation of the described fundamental right and its unlawfulness, as determined by the second paragraph of numeral 181 of the Code of Criminal Procedure (Código Procesal Penal).(...)To conclude, the obtaining of private elements of conviction originating from financial entities located abroad requires the observance of the same guarantees that govern the collection of such information from sources located on national soil. Thus, if jurisdictional authorization is part of the condition for accessing the content of bank accounts, operations, and other financial data contained in local registries, such requirement also governs the obtaining of data of a similar nature from foreign sources. Rather than a mere requirement, said condition determines that, prior to such interference, a jurisdictional authority instituted for that function is the one that proceeds to assess the proportionality of the affectation of such right; that is, the necessity of the action, as well as its suitability to achieve the proposed end and the conformity between the latter and the measure. Only after this exercise has been carried out by whoever has the competence and legitimacy to do so, the intervention in the sphere of protection indicated above occurs justifiably, and the data obtained in national and international territory are clothed with lawfulness. (...)Therefore, if for the limitation of the right to privacy, jurisdictional authorization is constitutionally required, it should have been managed in this manner prior to the request for private information, especially since, in all matters, domestic Costa Rican law is respected for its request and it is required for its processing and execution. (...)It is important to indicate that the so-called jurisdictional order is not addressed to the body of the requested country, in this case to the competent authority of Panama, for it to lift the privacy of the holder of that fundamental right; rather, it has the effect of internally guaranteeing this holder the prior review by the judge invested to perform such function. Thus, such authorization extends insofar as the concurrence of the requirements demanded by national law is considered, under the principle of proportionality and due process. It is not, then, a limitation on Panamanian sovereignty, given that the jurisdictional resolution is not addressed to the indicated State, but is a requirement specific to our domestic law which must be respected. Consequently, a harmonized interpretation of the TALM with the constitutionality block determines the validity of the latter given that the Treaty does not have the virtue of disapplying Article 24 of the Political Constitution (Constitución Política). (...) In sum, the reasoned order of a Court of Justice of the Republic lifting the guarantee of privacy is what vests legitimacy and makes the intrusion of the prosecutorial power into that sphere of individual action reasonable”* (Cf. folios 171423 to 171425). They explain that at the beginning of the investigation, based on various indications, it was considered that the defendants, in order to evade judicial and administrative controls, had established bank accounts in the name of legal entities in the Republic of Panama, seeking to eliminate traces of the crime (with accounts outside Costa Rican territory); for which reason, the Public Prosecutor's Office (Ministerio Público), upon analyzing the regulations, considered it appropriate to use the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (TALM) and request international judicial cooperation, because the basis of that cooperation *“lies in the territorial limitation of the scope of competence of state jurisdictions, in the impossibility of the authorities of the Requesting State to gather evidence outside its jurisdictional territory, 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 must be produced. This cooperation thus aims to overcome borders, ensuring that these are not an obstacle to crime investigations by the competent authorities and that criminals do not find refuges and subterfuges to hide both materially and legally, attending to legal labyrinths”* (Cf. folio 171426). They consider that when the Preamble establishes the desires to strengthen and facilitate cooperation, with full respect for the internal legislation of each State, it means *“that at the time of its subscription, all States Parties, attending to their own legislation, are legitimized with respect to their internal legislation for the subscription of said treaty, since that legal instrument does not contravene the constitutions and legislation of each of the States Parties. Now, Article 2, point 5 of the TALM is what indicates the manner in which it will be processed, specifically determining: ‘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 the actions requested within Central American countries in criminal matters must be executed in accordance with the norms of the executing State, that is, the procedural norm of its own country. They detail the procedure followed to obtain the excluded evidence, pointing out that the requests were made from the Fiscalía General to the Procuraduría General de la República of Costa Rica; which, in its capacity as central authority of the referenced treaty, forwarded the petition to its counterpart in Panama, that is, the Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional; to then transfer the request to the Procuraduría General de la Nación of the Republic of Panama, which sends the requirement to the Fiscalía de Panamá, the judicial authority authorized for the lifting of bank secrecy in Panama. The Fiscalía notifies the Panamanian banking authorities and requests the information on bank accounts. Once the data is collected, it is sent to the Panamanian Fiscalía, sent to the Procuraduría General de la Nación, then to the Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional, a unit that delivers the information to Costa Rica, first to the Procuraduría General de la República of Costa Rica, then to the Fiscalía General. In support of their position, they cite the dissenting opinion of resolution No. 499-2011 of the Sala Tercera de la Corte Suprema de Justicia and argue that according to the accusatory principle inherent in a democratic State, the investigative acts correspond to the prosecutor, hence they qualify as contradictory and illegal that in our legal system it should be the judge who must make the request before the Procuraduría General de la República in its position as central authority, according to the treaty. They criticize the lower Court's use of ruling No. 70-2005 of the Sala Tercera, as they believe it discusses a different scenario. They are opposed to the requirement in our country that a judicial authority orders the lifting of bank secrecy being applied to lift bank secrecy abroad. They consider the scope given to Article 24 of the Political Constitution (Constitución Política) to be extensive, as it affects Panamanian authorities and their territory, when the constitutional norm is circumscribed only to our national territory. They state that in criminal matters the principle of territoriality operates (as a manifestation of State sovereignty); therefore, the law of the state is that applied to all inhabitants of its territory and for acts committed in its nation. When referring to *“Law No. 7425 on Registration, Seizure and Examination of Private Documents and Intervention of Communications (Ley No.7425 de Registro, Secuestro y Examen de documentos privados e intervención de las comunicaciones),”* it is clear that, as derived from the principle of constitutional sovereignty, its competence corresponds to the Courts of Justice of Costa Rica, not to other States, and when it refers to the registration, seizure, or examination of any private document, it refers to documents located in Costa Rica, not in other States. In support of their thesis, they retake the content of Article 2 of Law No. 7425, which alludes to the personal execution of the diligence by the judge, to conclude that, with the documents being abroad, the Costa Rican judge would lack competence due to the principle of sovereignty. They cite ruling No. 1061-2008 of the Sala Tercera, which, in reference to Article 132 CPP, reaffirms the impossibility of a court to constitute itself in a place outside national territory; likewise, they reproduce Articles 1 and 2 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), regarding the attributions granted to the Judicial Branch (Poder Judicial). They add: *“The establishment of an order from the Costa Rican judge in that sense would be, on one hand, an invasion of the competencies and attributions of foreign judicial authorities, and also empty actions, because since the private documents are not in our State, the order per se ceases to have meaning and validity”* (cf. folio 171436). It is insisted that as established by the TALM, the execution in the collection of the diligences requested by the Requesting State must be done in accordance with the norms of the Requested State. They indicate that upon reviewing jurisprudence from other countries, such as the case of Spain, the majority criterion advocates that diligences carried out abroad through a letter rogatory cannot be supervised by Spanish legislation or jurisprudence, but rather in accordance with that of the country where they took place. They cite several pronouncements, among them STS of March 26, 1995, which upheld the validity of telephone interceptions carried out in Italy in accordance with Italian norms, for acting in accordance with what is established in the aforementioned Article 3 of the 1959 Convention on Mutual Assistance in Criminal Matters. Likewise, they mention English precedents (R v Quinn 1990, establishing that English judges cannot expect British procedural requirements to be followed in other jurisdictions) and Brazilian precedents (the Superior Court of Justice of Brazil, No. 2.382 SP(2010/055667-6) issued in Brasilia on October 26, 2010, ordered that what matters in judicial assistance requests is the law of the requested State). Finally, they conclude: *“Consequently, given that Article 24 of our Political Constitution (Constitución Política) is not applicable in Panamanian territory, while the TALM does have authority superior to Costa Rican and Panamanian laws, if the documentary evidence is located in Panamanian territory, and was collected in that territory, respecting the rights and guarantees established in the Constitution of that country, and is remitted to our country in accordance with the procedure established in the TALM, such evidence is legitimate and must be incorporated into the criminal process”* (Cf.

folio 171439). The appellants consider that the elimination of the evidence originating from Panama (evidence Nos. 563, 564, 578, and 579) resulted in the impunity of the facts of counts 334 and 335, as well as the exercise of the punitive claim, and therefore they request that the appeal be granted, that evidence number 588 be kept intact, and that the challenged judgment be partially annulled regarding the part of the accusation related to "[Nombre012] and the government of Taiwan" starting from fact number 323 of the statement of facts, and that a remand for new proceedings be ordered.

XV.- THE APPEAL FILED BY THE PUBLIC PROSECUTOR'S OFFICE IS RESOLVED.- All fundamental rights are born limited because they are exercised within society; however, the degree or magnitude of their affectation is historically and spatially relative; that is, their scope or the establishment of restrictions vary over time and according to each legal system, in accordance with criteria of public order, morality, good customs, and the rights of third parties (HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). In domestic national law, the Political Constitution in Article 28 establishes an unbreakable limit: *Article 28.- No one may be disturbed or persecuted for the expression of their opinions or for any act that does not violate the law. Private actions that do not harm public morality or order, or that do not harm a third party, are beyond the reach of the law.* Consequently, despite fundamental rights being subject to certain restrictions, only those necessary to make the validity of democratic and constitutional values possible are legitimate; it is not enough for it to be useful, reasonable, and timely; there must be a compelling social need, hence it is said that only limitations aimed at satisfying a public interest are justifiable, always opting for those that restrict the protected right to the least extent (Cf. HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). The Public Prosecutor's Office raises its disagreement because evidence provided to the process (Nos. 563, 564, 578, and 579) and essential from its point of view was declared unlawful, but the indifference to the issue of the potential affectation of fundamental rights is striking, because even though the sole ground raised (*"erroneous interpretation of the constitutional norm of Article 24 of the Political Constitution and non-application of numeral 7 of the same normative body"*) contains in its title a reference to the constitutional norm that protects the right to privacy, the content of its argument seeks to legitimize an interpretation on the application of the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (T.A.L.M.), completely alien and opposed to the protection of that right as it has been regulated in our legal system, even though it is clear that the criminal process of interest will take place within the national territory, making it obvious that in that context respect for the principle of legality established in Article 1 of the Code of Criminal Procedure was required: *"No one may be sentenced to a penalty or subjected to a security measure, except by virtue of a process conducted in accordance with this Code and with strict observance of the guarantees, powers, and rights provided for persons. The non-observance of this guarantee rule established in favor of the accused may not be used to their detriment."* And in an action consistent with the provisions of Article 63 ibidem: *"In the exercise of their function, the Public Prosecutor's Office shall adapt their actions to an objective criterion and shall ensure the effective fulfillment of the guarantees recognized by the Constitution, International and Community Law in force in the country, and the law…"* (the bolding does not correspond to the original), because ultimately, applying the T.A.L.M. did not have to be incompatible with respect for due process, the right of defense, and the fundamental rights enshrined in the Magna Carta. This Chamber was able to verify that the Criminal Court for Treasury and Public Function Matters, by means of a **resolution at sixteen hundred hours on October seventh, two thousand eight**, when issuing the order to open trial, granting a defective procedural action filed by the defense of the accused [Nombre012], ordered the rejection of the evidence that is of interest here to the Public Prosecutor's Office. On that occasion, the judge recognized that the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama *"... constitutes an international legal tool precisely to streamline cooperation between the States Party to it, with regard to criminal matters. One of the specific objectives of this regulation is to avoid the processing of this mutual legal assistance through diplomatic channels; such situation determines that the norms of the Bustamante Code or another general provision for international cooperation are not applicable to the case, as a special norm exists... The provision presupposes a more expeditious, informal (in administrative aspects, not in judicial aspects), and agile procedure, for the benefit of the right to swift and complete justice; dispensing with diplomatic channels and the formal rigors established in the Convention on Private International Law."* (Cf. folios 10570 and 10571). But even recognizing the importance or advantages of the instrument, its purposes of international cooperation in the processing of criminal cases, and the desire to avoid impunity for criminal conduct; later it reflects and specifies core points on the subject. It retakes the content of Article 24 of the Political Constitution and establishes: *"As can be seen, the norm guarantees the right to the inviolability of private documents and communications of the inhabitants of the Republic... A first detailed approach to the subject allows evidencing that the provision makes it clear that the documents (the topic that now concerns us) and records that are protected under said constitutional principle are private ones, which generates a direct effect on the case, since the jurisprudential precedents presented by the Prosecutor's Office to justify its action are cases of public documents, which as such do not present any special regulation in our national regulation, except for issues of authenticity which is not the reason for discussion... A clear example of the veracity of what has been said is that the Costa Rican Code of Criminal Procedure, regarding publicly accessible documents, allows direct investigation by the Public Prosecutor's Office without any judicial intervention, because as their name indicates, they are open-access documents without any protection of the right to privacy"* (Cf. folio 10575). After reflecting on the precautions foreseen by the legislator for issuing a regulation limiting the fundamental right to privacy (a law approved by a qualified majority), it mentions Article 201 of the Code of Criminal Procedure which establishes: *"In relation to the interpretation and seizure of communications and correspondence, the provisions of the special law referred to in Article 24 of the Political Constitution shall be observed."* This regulation is precisely the Law on Registration, Seizure, and Examination of Private Documents and Intervention of Communications, which requires the issuance of a duly reasoned jurisdictional resolution to admit any invasion into the sphere of citizens' privacy. The judge highlights that during the preliminary hearing it was pointed out that treaties, as established in constitutional Article 7, have a rank superior to law, but that this superiority does not reach the Political Constitution, whose Article 24 requires the issuance of an express and reasoned resolution. And it adds: *"The prosecutorial representation has maintained that said instrument is superior to the Political Constitution itself, which we must emphatically reject. The Constitutional Chamber has maintained that international instruments on human rights have a validity superior to the Constitution itself insofar as they integrate the constitutional framework (See among others votes 68-98, 1319-97, and 2313-95, all from the Constitutional Chamber), but not all instruments are so, only those that have that specific normative framework, namely the subject of human rights"* (Cf. folio 10576). A character that the judge correctly denies to the T.A.L.M., who adds: *"Furthermore, the content of granting them an efficacy superior to the constitutional framework is not to derogate what has already been established by the internal charter, but to allow for better regulation or an expansion of the spectrum, which is not the scenario here. (...) In the case of private information, which by constitutional provision required a judicial order to access, the logic within the constitutional framework was that the Criminal Court of the Second Judicial Circuit of San José, acting as the Criminal Court for Treasury and Public Function Matters, was the one called upon to order the lifting of the privacy of such information and to request (through the Attorney General's Office of the Republic) that the Panamanian authorities, in application of the referred treaty, send it to the corresponding Judge in that nation so that they could analyze if, in their opinion, it was appropriate (in accordance with their internal legal system) to grant access to the information protected by the right to information"* (Cf. folio 10576). The legality of evidence numbers 563, 564, 574 to 581, 584, and 585, again becomes controversial at the start of the oral and public debate, when the Public Prosecutor's Office tries to revive it and incorporate it into the evidentiary material of the adversarial proceedings. It was argued that the judge of the intermediate stage had been mistaken in classifying as illegal the evidence obtained from financial entities and the Public Registry of the Republic of Panama, related to Inversiones Denisse S.A. and linked to the accused [Nombre012], from Banco Alemán Platina, the company NCR Holding S.A., and UTS Holding S.A. associated with the defendant [Nombre018] (R.I.P.); insisting on the validity of the procedure, carried out in accordance with what the T.A.L.M. established. Nevertheless, the trial court, upon resolving the objection, denied it, through **resolution at eight hundred hours on May fourteenth, two thousand ten**, using as support what is stipulated in Article 24 of the Magna Carta, that is, the right to privacy and the secrecy of communications, explaining that even though the constitutional precept opens the possibility of an exception to that right, it required the enactment of a law (approved by two-thirds of the deputies of the Legislative Assembly) and which we know corresponds to No. 7425, Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications, which requires a duly reasoned order issued by a judge of the Republic, which includes a proportionality assessment (on the need for intrusion into the private sphere to ascertain the truth of the facts) and the verification of an indication of a criminal offense. They state in the cited resolution: *"... the impartial, independent, and previously constituted judge, is the competent body to make the decision to affect the right to privacy of the holder (as the Constitutional Chamber has also interpreted, among others, in resolution No. 1427-1996). It is not, then, the function, nor is it authorized, of the representatives of the Public Prosecutor's Office, nor of the Attorney General of the Republic, to request and take cognizance of confidential information of persons. As interpreted from the constitutional norm cited above, the system of guarantees in force in Costa Rica determines that the only competent body to weigh and order interference in the sphere of persons is a **Court of Justice of the Republic**"* (Cf. folio 13376, Volume XXVII). Later it is stated: *"The national judge cannot ignore the verification of the guarantees in force in Costa Rica, not even when the investigation has been carried out outside the national territory or when, as in the present case, information originating from abroad is requested. In that sense, the Constitutional Chamber, in pronouncement No. 4248-2001, warns about the importance of respecting the mechanism of veracity and authenticity of the content of documents requested from abroad, precisely in function of our constitutional guarantee of due process, asserting that the effects of the chain of custody must be assessed in the specific case in order to establish the legality of the production and introduction of evidence into the process"* (Cf. folio 13377 back, Volume XXVII). In sum, the Trial Court recognizes, in a criterion that this Court fully endorses, that obtaining private evidentiary elements originating from financial entities domiciled abroad requires compliance with the same guarantees foreseen and required to obtain that information, if said sources were located in native, national territory. Consequently, the jurisdictional order being part of the legal conditions imposed to access bank accounts, operations, and any other private financial data, constitutes a mandatory requirement for both national and foreign sources; highlighting that it is not a mere formalism, it is a guarantee of due process that entails an assessment on the proportionality of the assets affected versus the investigation (cf. folios 13378 front and back, Volume XXVII). We see the Public Prosecutor's Office attempting, depending on the stage, various theses, always seeking the protection and legitimization of evidence that it processed in a more than incorrect, illicit manner; a situation that finally generated a state favorable to the interests of the defendants and determined – to a large extent – their acquittal in the criminal aspect (when the reproach was linked to that evidentiary element). Their arguments were rejected one by one; during the intermediate stage: (i) it alluded to jurisprudence referring to public documents, not private ones; absolutely useless to support its position; (ii) it assured a superiority of the Treaty over the Constitution; unacceptable (except in matters of human rights). Later, in the plenary phase, it insisted on the legality of the procedure, executed in accordance with the T.A.L.M. However, and even though this Chamber does not share with the judge of the intermediate stage the need for a Costa Rican criminal judge to send the request *to a Panamanian judge* who would also examine the legal appropriateness of the petition (as it is clear that the procedure is different); there is affinity and coincidence in a core issue of both resolutions: **the legal requirement in our country of an express and duly reasoned resolution by a national guarantees judge, weighing and ordering (or denying) said diligence, to the Public Prosecutor's Office.** In the event that the request of the prosecutorial entity had been resolved affirmatively (the judge granting the lifting of banking secrecy); the Public Prosecutor's Office should then (with the resolution authorizing the invasion of the privacy of the defendants) follow the procedure as provided in the T.A.L.M.; that is, present the request for judicial assistance to the Attorney General's Office of the Republic of Costa Rica (central authority at the local level); that the Attorney General's Office forward the procedure of the Public Prosecutor's Office to the National Director of Treaty Enforcement; from there it would be remitted to the Attorney General's Office of the Nation (central authority in Panama), then passing to the Anti-Corruption Prosecutor's Office, which notifies the Panamanian financial entities to collect the pertinent information. Clarifying that in Panama, as provided in its Political Constitution, the authority competent to lift banking secrecy is the Public Prosecutor's Office, unlike our country. In sum, this Court shares that, as established by the accusatorial principle and as claimed by the Public Prosecutor's Office in its appeal, the acts of investigation correspond to the prosecutor and it is the latter who, after asking the guarantees judge and obtaining from their part the duly reasoned resolution authorizing that investigative diligence, the prosecutor must ask the Attorney General's Office of the Republic to transfer the procedure to the National Director of Treaty Enforcement (in the sub examine, of Panama), and not directly the guarantees judge. But being correct in that point does not validate or make disappear the absolute defect they incurred, by managing the intervention or affectation of a *fundamental right* of an accused person, on their own and directly before the Attorney General's Office of the Republic, completely ignoring the function assigned in the Political Constitution to the guarantees judge within the national territory. As the Trial Court correctly points out when resolving this objection: *"... the reasoned order of a Court of Justice of the Republic lifting the guarantee of privacy is what imbues with legitimacy and makes reasonable the interference of the prosecutorial power in that sphere of action of persons. Far from consisting of a mere mandate, embodied in a simple document, it represents the prohibition of arbitrariness and subjection of public authorities to the Constitution, for it concerns the requirement for an objective weighing that in that specific case the requisites demanded by the legal system for said limitation are present. To act without having the described formal and substantial assessment is to act with one's back to the Fundamental Law and against the convictions and values shared by Costa Rican society"* (cf. folio 13381). As indicated in another considerando, this Chamber does not share the arguments of dissenting vote No. 499-2011 of the Third Chamber of the Supreme Court of Justice, despite recognizing the accusatorial principle, which markedly determines our criminal procedural system; there is no doubt whatsoever about the leading and essential role assigned to the guarantees judge, who is called to intervene to weigh any investigative diligence that affects fundamental rights. In the *sub judice*, despite the validity and application of the T.A.L.M., which this Court fully endorses as a convenient and highly useful tool to combat crime and avoid impunity; it is not a legal instrument capable of depriving our Political Constitution of validity, which in a clear and pristine manner enshrines in Article 24: *"The right to privacy, freedom, and secrecy of communications is guaranteed. **Private documents** and written, oral, or any other type of communications of the inhabitants of the Republic **are inviolable**. **Nevertheless, the law, whose approval and reform shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall establish in which cases the Courts of Justice may order the seizure, registration, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their cognizance.** Similarly, the law shall determine in which cases the Courts of Justice may order the intervention of any type of communication and shall indicate the crimes in whose investigation the use of this exceptional power may be authorized and for how long. Likewise, it shall indicate the responsibilities and sanctions incurred by officials who illegally apply this exception. The **judicial resolutions** covered by this norm **must be reasoned** and may be executed immediately. (...)"* (The bolding does not correspond to the original). From that perspective, there is no excess in applying or interpreting constitutional Article 24; for as has been argued, the intervention of the guarantees judge to assess the suitability, necessity, or proportionality of the measure is only required for the procedure within the national territory, where let us not forget, it is where the process against the accused is being conducted. That is, it is not a mandate that is extended or intended to be imposed on another State, in this case Panama, as we obviously lack the competence for that, besides, its regulations are different from ours and, in them, only the action of the Public Prosecutor's Office is required to obtain the documentation of interest to the prosecutorial entity in our country. In this sense, what is established in 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."* Thus, what corresponded to our country was for the Public Prosecutor's Office to request from the guarantees judge the lifting of banking secrecy, as ordered by the Constitution, and upon obtaining approval, to go to the Attorney General's Office so the request could be processed before the Panamanian State; then, what was incumbent upon Panama was to receive the petition from the Attorney General's Office, so that the Panamanian Public Prosecutor's Office would be in charge of collecting the requested information; that was the only thing legally expected, in compliance with the principle of territoriality and as a manifestation of the sovereignty of States. Of course, the opinion, in our view biased and confused, of the appellants is not shared, when, seeking another argument, they state that derived from the principle of constitutional sovereignty, it is not possible to apply *"Law No. 7425 on Registration, Seizure, and Examination of Private Documents and Intervention of Communications"* to other States. In reality, the Trial Court had absolute clarity on this point; there was never any intention to apply Costa Rican domestic law to Panamanian law. This is evident from the following quote: *"It is important to indicate that the so-called jurisdictional order is not directed to the body of the requested country, in this case to the competent authority of Panama, to lift the privacy of the holder of that fundamental right; but rather it has the effect of guaranteeing this holder, internally, the prior review of the judge invested to perform said function. Thus, such authorization extends insofar as the concurrence of the requirements demanded by the national legal system is considered, under the principle of proportionality and due process. It is not, then, a limitation on Panamanian sovereignty, given that the jurisdictional resolution is not directed to the indicated State, but is a requirement of our own domestic law which must be respected"* (Cf. folio 13380) And it adds: *"... Nevertheless, when that information is managed with respect to a State like Panama, the procedure to follow is that established in the TALM. Hence, the requesting State must channel the request for public documents through the national Central Authority, while the requested State must provide them with the signature of the official in charge of keeping them in custody and certified by the Central Authority, by means of a seal created for that purpose... Once those postulates are fulfilled, no other certification or additional authentication will be required. Documents certified in accordance with the provisions of the Treaty constitute admissible proof of the veracity of the matters set forth in them, as regulated by Article 13 paragraph 3 of the TALM..."* (Cf. folios 13380 back and 13381 front). In sum, it is not established in the judgment, nor does this Court endorse, that a judge of the Republic intends to impose national legislation or jurisprudence abroad; that argument is a distorted interpretation of what was resolved by the Trial Court, and consequently the precedents they cite (jurisprudence from Italian and English cases) would be shared by this Chamber; because it is not projected in any way to apply constitutional Article 24 to the brother State of Panama. Our criminal procedural system opts to accept the principle of freedom of evidence, provided in numeral 182 of the Code of Criminal Procedure: *"Facts and circumstances of interest for the correct solution of the case may be proven by any permitted means of evidence, except express legal prohibition."* By virtue of this, the parties have the right to prove the aspects of interest in the process, with useful and pertinent evidence but with a single and insurmountable limit, its legality, whether in the phase of obtaining and/or incorporation into the process. That is, within our democratic rule-of-law system, all evidence obtained, produced, collected, or introduced into the criminal process outside the legal and previously established canons must be excluded from consideration within the criminal process, both for a private interest of the defense (in protection of their rights and guarantees), and for a superior and public interest, since undoubtedly, the community must be interested in the correct application of the Law. As resolved by the criminal judge (in the intermediate stage) and the full court (in the plenary phase), the evidence identified with numbers 563, 564, 578, and 579, is what is called **unlawful evidence**, that is, *that evidence obtained, incorporated into the process, or valued in violation of fundamental rights, which entails harm to one of the parties of the process.* In the context of criminal procedural law, it concerns the injury to due process (judicial guarantee enshrined in Article 39 of the Political Constitution and in international instruments such as the American Convention on Human Rights, Article 8); but also the violation of other fundamental rights of every citizen such as dignity, health, the privacy of the domicile, correspondence, communications, etc. In Costa Rica, unlawful evidence has no value, as established in Article 181 CPP: *"Evidentiary elements shall only have value if they have been obtained by a lawful means and incorporated into the procedure in accordance with the provisions of this Code. (…)"*. That is, the investigation of the real or material truth does not authorize the use of illegitimate evidentiary means, as has been reiterated by jurisprudence from the Constitutional Chamber (votes No. 1739-1992, 1422-1994, 2334-2000, 9127-2001), the Third Chamber (votes No. 53-F-1992, 47-92-1992, 614-1995), as well as several pronouncements from the Courts of Criminal Cassation (votes No. 66-F-1999, 422-2000, of the Second Judicial Circuit of San José).

In the *sub examine*, as has been reiterated, the Public Prosecutor's Office required, in order to access the evidence of its interest in this claim, a jurisdictional authorization that would weigh its legality, usefulness, and relevance, because consenting to it represented an invasion of a fundamental right (privacy) and this circumstance was fully known to the prosecuting entity, within a criminal procedural system like ours, which is markedly accusatory in nature (where the accusation and investigation are the responsibility of the Public Prosecutor's Office) but where it was also decided to reinforce the role of the judge as controller of fundamental guarantees and rights, to approve or not certain evidentiary acts. The rules on the subject are numerous, highlighting Article 290 of the Criminal Procedure Code which establishes: *“The Public Prosecutor's Office shall carry out the procedures and acts of the preparatory investigation that do not require judicial authorization nor have jurisdictional content…”* And even clearer, numeral 277: *“It shall correspond to the court of the preparatory procedure to carry out jurisdictional advances of evidence, resolve exceptions and other requests typical of this stage, grant authorizations and, in general, control compliance with the principles and guarantees established in the Constitution, the International and Community Law in force in Costa Rica and in this Code… Prosecutors may not perform properly jurisdictional acts and judges, except for the exceptions expressly provided for by this Code, may not perform investigative acts.”* Based on the foregoing, the appeal filed by the Public Prosecutor's Office is declared without merit.

**XVI.-** **APPEAL FILED BY ATTORNEYS GILBERTO CALDERÓN ALVARADO AND MIGUEL HORACIO CORTÉS CHAVES, OF THE OFFICE OF THE ATTORNEY GENERAL OF THE REPUBLIC.-** **A.** Attorneys Gilberth Calderón Alvarado, Attorney of Public Ethics, and Miguel Horacio Cortés Chaves, Deputy Attorney of Public Ethics, in their capacity as representatives of the State, constituted as Civil Actors and based on the provisions of Articles 1, 3 subsections a) and h), 20 and 21 of the Organic Law of the Office of the Attorney General of the Republic; 1, 4, 6, 7, 16, 37, 38, 40, 116, 142, 368, 437, 438, 439, 458, 459 and 460 of the Criminal Procedure Code, 103, 105 and 106 of the Criminal Code, 1045 et seq. of the Civil Code, 11, 41 and 153 of the Political Constitution, 5 of the Organic Law of the Judicial Branch and 7, 113 and 155 of the Civil Procedure Code, filed a cassation appeal (visible in Volume XXXVI, folios 17300 to 17385) against the judgment issued by the Trial Court of the Second Judicial Circuit of San José, at three o'clock in the afternoon on April twenty-seventh, two thousand eleven, and they protest that the ruling omitted a decision on the merits regarding the civil actions filed by the Office of the Attorney General of the Republic 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.. They explain that the Office of the Attorney General of the Republic participated, exercising within this process, a civil action for the Social Damage caused by the investigated acts of corruption, jointly and severally suing all the accused and some companies that somehow participated in the acts; however, they claim that this claim was not resolved by the sentencing court, alleging supposed deficiencies in the civil lawsuits. Likewise, the aforementioned attorneys filed a sentence appeal (visible in Volume XXXVIII, folios 171982 to 172067) against the referred ruling. Given the coincidence of claims in both challenges, the claims are presented, with some verbatim quotes from the second one, corresponding to the sentence appeal. **B.- First ground.-** **“Contradictory reasoning which produces incoherence in the sentence”** (Cf. folio 171985). The petitioners point out that even though the ruling acknowledges a criminal plan to corrupt public officials, it omits resolution on the compensatory civil action filed and regarding the social damage caused, in violation of Article 142 CPP. They cite, in pertinent part, vote No. 334-2004, at 9:58 a.m. on April 2: «*“The claim is admissible: Judges are obligated to ground their resolutions in a clear and precise manner, expressing the reasons of fact and law on which they base their* ruling, *as well as indicating the value given to the means of proof - Article 142 of the Criminal Procedure Code -, which implies that the reasoning of the sentence is subject to controls, to the evidence, and to the imposed procedural limits. When evaluating the elements of conviction, the judge must rely on two essential criteria: its legitimacy and the reasonableness of the analysis, in order to avoid a capricious and arbitrary examination, so that his decision responds to objective criteria, expressing with clarity, precision, and certainty the reasons that allow him to arrive at a legitimate and valid judgment, and that, in case of discrepancy, can be examined by a higher control instance, which determines if the ruling issued has respected or not the fundamental principles and rights of the parties involved in the adversarial proceeding.”* (Our underlining).» (Cf. folio 171986). They assert that in the facts of the civil lawsuits filed (which they reproduce in the brief), a structured criminal plan was established 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 various public officials with the purpose of financially benefiting, of favoring the personal economic interests and those of the company Alcatel CIY, in the contracting of the 400 thousand cellular lines with the Instituto Costarricense de Electricidad. Furthermore, they assure that this is indicated in the proven facts of the sentence, from which the following paragraphs are reproduced: «*“48) Without specifying an exact date, but approximately starting in May 2000, the accused [Nombre015] and [Nombre035] plan or conceive the idea of seeking, offering, and delivering gifts consisting of money to public officials who had interference or decision-making power regarding the contracts of I.C.E and within the political sphere. The foregoing with the purpose of favoring the company Alcatel by opening public bidding processes in the field of GSM cellular telephony and in the awarding of future bids in this matter, as well as to obtain for their favor large sums of money. As part of their strategy, they agreed that the effective delivery of the money they promised to the officials would be made indirectly, through a third person, the accused [Nombre009]...”. “50) Among the indictees, there is a kinship by affinity relationship with [Nombre009], since the wife of [Nombre015] is the sister of [Nombre009]. The bonds of affinity and the relationship of trust, as well as the described link of [Nombre009] with the company Servicios Notariales QC S.A. and the management of his account with Banco Cuscatlán, motivated [Nombre009] to join in the planning and structuring of the mentioned criminal plan; knowing that everyone would personally benefit from part of the money coming from Alcatel CIT.” “51) With the aforementioned purpose, the accused [Nombre015], together with the sentenced [Nombre035], by common agreement with the accused [Nombre009], decided to use the bank account of Servicios Notariales QC S.A. (...) as the recipient of the money delivered by Alcatel CIT, to later distribute it among the corrupt officials and politicians to be indicated.” “52) As part of the previously outlined plan, the sentenced [Nombre035] and the accused [Nombre015] and [Nombre009], with the purpose of concealing the payment of illicit gifts and justifying the million-dollar transfers of money in favor of the public officials, took advantage of the commercial relationship that had been maintained between Servicios Notariales QC S.A. with Alcatel CIT, that in the signing of consulting agreements was represented by the company Alcatel Standard S.A.” “56) According to the plan devised with the accused [Nombre015] and the sentenced [Nombre035] to corrupt public officials, among the tasks to be fulfilled, the indicted [Nombre009] was responsible for receiving the money from the company Alcatel CIT and making the illicit payments to the corrupt officials.” “59) The company Alcatel CIT paid each of the amounts corresponding to the referred contracts and the sentenced [Nombre035] together with the accused [Nombre015] and [Nombre009], obtained the money they used for the payment of gifts to the public officials.” “60) The accused [Nombre009], according to the part of the plan he was responsible for carrying out, proceeded to make the deliveries of money to each of the officials indicated to him by the indictee [Nombre015] and [Nombre035], as will be explained.”»* They add that in the reasoning section of the sentence, this criminal plan is considered established, which evidently entails civil liability, citing various excerpts in support of this assertion. They conclude that the court's reasoning is "absolutely contradictory," on one hand determining that the civil defendants did participate in a common agreement in the criminal plan as corruptors and on the other, omitting cognizance of the civil action filed against them; which constitutes, in their view, a violation of the principle of non-contradiction. They request that the sentence be declared null. **C.- Second ground.-** **“Contradictory reasoning”** (Cf. folio 172006). They allege that the criminal acts of corruption demonstrated at trial caused serious social damage, as established by Article 38 of the Criminal Procedure Code and as stated in the judgment, when on folio 1625 it was established: «*“Contrarily, given his criminal participation from the first Branch of Government, as well as the serious social damage caused and the significant amount received as a gift, under no circumstance is he deemed deserving of its concession.”* (The highlighting is ours)» (Cf. folio 172006). Damage to which the court refers in its arguments on multiple occasions, so much so that it justifies the crime and the imposed penalties; as illustrated in the sentence, among others, when analyzing the reproach against [Nombre012] or [Nombre015]. From the latter, the following quote from the ruling is reproduced: «*“So that, in the production of the social damage and injury to the legal interest, the greatest contribution was that of [Nombre015] since he acts following a scheme previously established for that purpose, he knew how to set it in motion, define the “adequate” amount to make the promise and provoke its acceptance, among other actions revealing that at all times he acted calculatingly, unlike [Nombre026], who was unaware of the noted illicit machination for the generation of the violation of the legal interest and the social impact indicated due to not knowing, as he himself referred, that there were other people involved or the magnitude of the corrupting proposals of [Nombre015]. Hence, the greater reproach regarding the generation of the damage also corresponds to [Nombre015].”* (The underlining is not from the original)» (Cf. folio 172007). The petitioners consider that if the sentence has deemed the existence of social damage as proven and that all the sentenced parties acted under a single purpose (to ensure that the company Alcatel CIT was awarded the 400 thousand cellular lines), it was not possible—without incurring in contradictory reasoning—to fail to resolve the civil lawsuit in this venue. They request that the ground be admitted and that the civil lawsuit presented be resolved. **D.- Third ground.-** **“Violation of substantive law due to non-application of Articles 11, 41 and 153 of the Political Constitution, 5 of the Organic Law of the Judicial Branch, 1, 4, 6, 7 and 40 of the Criminal Procedure Code, 103 subsection 2) of the Criminal Code, 1045 of the Civil Code, 7 and 155 of the Civil Procedure Code”** (Cf. folio 172009). They indicate that when the court established the impossibility of ruling on the merits of the compensatory civil action filed by the Instituto Costarricense de Electricidad, as well as the one initiated by the Office of the Attorney General of the Republic, Costa Rican legislation is violated: Article 3 of the Law of Constitutional Jurisdiction, Articles 11, 41 and 153 of the Political Constitution, because there is an obligation on judges: to resolve each and every one of the questions submitted to their knowledge, without being able to leave the parties who have intervened in a process without a resolution that responds to their petitions. Article 41 establishes that access to justice, effective, prompt, and complete judicial protection, absent in the appealed sentence regarding the civil actions filed by the Representation of the State. Later they invoke the principle of legality to underline the duty of courts to resolve the matters submitted to their knowledge; also the right to reparation of all damage caused, as well as the right to prompt, complete justice, without denial and in strict adherence to the laws. Regarding the principle of legality, they cite vote No. 440:98 at 3:27 p.m. on January 27; they also refer: *“The Principle of Legality in the Rule of Law postulates the special binding of the authorities to the legal system, based on the basic definition in which every authority must act to the extent that it is empowered to do so by the same legal system and by express text, hence the exercise of the jurisdictional function must be guaranteed under formal and material efficacy to the point that violations of mere legality become—by virtue of the principle—violations of due process (set of guarantees that translate into rights and obligations of the judicial process) and the corresponding right to constitutional legality and legitimacy as a means to apply substantive law.”* (Cf. folio 172012). They add to the claim the transcription of Article 5 of the Organic Law of the Judicial Branch, numerals 1, 4, 6, 7 and 40 of the Criminal Procedure Code, 103 of the Criminal Code, 1045 of the Civil Code and Articles 7 and 155 of the Civil Procedure Code. They invoke vote No. 619-2000, at 11:20 a.m. on June 9, of the Third Chamber: *“The Political Constitution in its Article 41 establishes that every person must find reparation for the injuries or damages suffered, in accordance with the law. In addition, it expresses that everyone must be given prompt and complete justice, in strict accordance with the Law. A recognition of the right to reparation is observed in the constitutional order, always under the aegis of the corresponding legal provisions. Note that in matters of civil reparation, one of the legally permitted modalities to carry it out is pecuniary compensation. Likewise, it should be said that Costa Rican Fundamental Law is clear in establishing that the jurisdictional function consists of hearing certain types of cases, resolving definitively on them and executing what is judged (Article 153). Thus, if there is a judge competent to hear certain matters in particular, they must abide by the relevant legislation. This principle is reinforced by what is stated in Article 5 of the Organic Law of the Judicial Branch, in the sense that it corresponds to the judge to exercise their authority and decide matters following the written and unwritten rules of the legal system, according to their position in the hierarchical scale.”* The protest is reiterated for not resolving the merits of the filed actions, as well as the referral to the civil venue to settle their claims, about which they state: «*The doctrine has pronounced that “It is not consistent with the principle of prompt and complete justice to send the victims to a civil process, after they have chosen a venue, authorized by law, to settle their conflicts. That is, one would have to start a new process, generating greater expenses and an evident delay in the decision. If criminal judges must handle civil matters to resolve civil actions, there is no inconvenience in continuing with the process to reach the respective ruling. In any case, difficult problems obtain a solution through the conscientious study of the judges or as Núñez points out (1982, p.26) ‘...once the judge of the crime system is established, through experience, they will specialize 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. Pg. 40). Therefore, when one of the civil parties within the criminal venue files a compensatory civil action, they do so because they are choosing that venue with the purpose that within it, their petition be resolved.»* (Sic. cf. folio 172019). The challengers add: «*It is through Access to Justice materialized through the administration of justice, that persons exercise the right to obtain a response to the violation of some of their guarantees and thus an effective and timely solution to a matter protected by law. In this case, the same thing happened, this Office of the Attorney General, within the criminal process, presented several civil actions against the accused and third parties civilly responsible and from the year 2004 to the date, acts have been carried out tending to promote those actions, such as the filing of the civil actions themselves, clarifications to them, attachment of liens, answering of appeals and finally the attendance of almost a year of trial, where the thesis of the existence and collection of the social damage generated by the investigated acts of corruption was upheld. Hence it is not understood how at the end of the trial, the Court determined by sentence that it is impossible to rule on its merits, without having reason for it, a denial that causes irreparable harm to this Representation, since it becomes a denial of access to justice and that the situations presented be resolved, thus violating all the principles cited above, this apart from 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 Complete Justice, is a clear omission of the Judges of the Trial Court of their obligations, since among them is the duty to resolve all the extremes that have been submitted to their knowledge.»* (Cf. folio 172020). They partially reproduce vote No. 12224-2001, at 2:55 p.m. on November 28, of the Constitutional Chamber: *"... the activity that the parties and the judge develop in the process tends to a common goal, which is to establish the existence of a will of the law over a determined good with respect to the plaintiff and the defendant in the case being processed. The act by which the judge formulates this declaration is the sentence. In it, the jurisdictional function is summarized and through it, the process is justified, because in it and by means of the sentence, the maintenance of the legal order is made effective. The sentence must refer to a specific case, (sic) the judge not being able to issue resolutions in the abstract. Thus, this function—the jurisdictional one—obliges the judge to 'judge,' 'opine,' and 'value' the facts under litigation and adapt them to the current normative framework, for which it contains a positive and precise decision on them; that is, it is an expression of what was considered by the judicial authority. The constitutional and legal mandate to 'definitively resolve the matters submitted to the knowledge of the courts of justice' (resolution number 6494-93)."* (Sic. cf. folio 172021). They question that the sentencing court had the moral damage demonstrated and despite this, declared impossibility to resolve the merits of the civil actions filed. Regarding this they state: *“The only valid and logical conclusion is that the impossibility referred to was to determine the quantum of damages corresponding to each individual, and this clearly does not make it impossible to resolve the merits of the civil actions and, if necessary, to remit this determination of the amount to the sentence execution phase, which is indeed authorized to them by law.”* (Cf. folio 172022). They refer that both jurisprudence of the Third Chamber and of the so-called Courts of Cassation have agreed on the violation of the legislation when a ruling on civil aspects is omitted, a situation aggravated when absolutely nothing is resolved. In support of this, they cite the following resolutions: (a) from the Third Chamber, votes No. 165-F-91, at 9:00 a.m. on April 26, No. 105-2010, at 11:00 a.m. on February 17; (b) from the Criminal Cassation Court, votes No. 186-2001 of February 23, No. 601-F-98, at 9:25 a.m. on August 31; (c) from the Constitutional Chamber, vote 8591-2002, at 2:59 p.m. on September 4. They consider that a violation of all the invoked legislation occurred and request that what was resolved be annulled and that what is provided in the legislation be applied. **V.- Fourth ground.-** **“Erroneous interpretation of numerals 1, 3, 20 and 21 of the Organic Law of the Office of the Attorney General of the Republic, 38 of the Criminal Procedure Code, 1, 190, 191, 196, 197, 199, 201, 203, 205 and 206 of the General Law of Public Administration and 105 of the Criminal Code”** (Cf. folio 172029). They criticize that the instance court considered that the action of the Office of the Attorney General of the Republic, in this process, was not in representation of the State, which is why there was an erroneous formulation of the civil claims, which should have had the State as a civil defendant, according to the rules of responsibility established in the General Law of Public Administration. That is, they consider that the error of the judges was considering that there were more civil defendants besides those established in the civil actions filed. They state: «*This, because the judges perform an analysis of Article 106 of the Criminal Code concordant with Articles 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 be a civil defendant alongside the Instituto Costarricense de Electricidad. Those numerals that the resolution transcribes are erroneously interpreted, first, because it is the Office of the Attorney General of the Republic in representation of the State who exercises the collection of the social damage caused by the illicit conduct in their personal capacity of the accused in this case, so it is not logical to cite the articles in question in the resolution, much less to perform an interpretation for this case. Second, because who must manage the ‘alleged responsibility’ of the State are individuals, not the State against the State itself, since this is a basic instrument of administration (active subject)-administered person (passive subject) relations ‘it translates into the faculty of the administered person to demand from the Public Administration that has inflicted an unlawful injury or breached a pre-existing administrative obligation imposed by the legal system the compensation of their patrimonial or extra-patrimonial sphere. ... This right may be exercised or not by the harmed or injured person, as it is optional for its holder and the way to exercise it is by deducing the claims or suing the obligated public entity.’ For the emergence of the obligation to repair or compensate in a public entity, several conditions must concur which are the following: 1) an action or omission attributable to the Public Administration, 2) an unlawful injury that the administered person or victim has no duty to bear, and 3) a direct and immediate cause-and-effect relationship between the administrative action or omission and the unlawful injury.” (Jinesta Lobo, Ernesto. Tratado de Derecho Administrativo. Tomo II. Responsabilidad Administrativa. San José. 2005. Pgs. 97 and 98). Therefore, under the court's line of reasoning, the following questions should be asked: was the State a civil defendant? Was the State counter-sued civilly? The answers to the previous questions are negative. The State was not sued civilly, the State was not counter-sued. So, why is this analysis done? To determine a responsibility of the State that was not being requested or discussed, a responsibility of the State that was not alleged through the legal means established by procedural law, so there is no explanation from the Court, except to indicate that some of the accused were public officials.»* (Cf. folios 172030 to 172031). The challengers point out that in this process, state responsibility was not ventilated because no individual or administered person filed a civil lawsuit against the State *«...* regarding the "supposed responsibility"<span style='mso-spacerun:yes'> </span>that the Court only finds strange when establishing it as a party within seven of the eight groups of joint and several liability that it subjectively determined, because it does not indicate what parameters it used to group the persons and that the State was among them, or establish the causal link to impute the State's joint and several liability with public officials, because the mere fact of holding that investiture is not enough for the State to be liable; rather, the conditions for its concurrence must be demonstrated, and in this case, the Court does not set forth the evidentiary elements that lead it to conclude that the actions of the accused are attributable to the Public Administration, nor does it establish the direct cause-and-effect relationship between the actions of the convicted persons attributable to the State and the resulting unlawful injury; instead, the Court in its resolution simply limits itself to indicating that;<span style='mso-spacerun:yes'> </span>"The particularity of this process is that not all the accused had participation in all the criminal acts charged; rather, it starts from the intervention of groups of accused in specific acts, a circumstance that obliges determining and specifying each group of accused and third-party civil defendants that could be jointly and severally liable among themselves, in relation also to specific acts and specific damages that those specific acts may have caused, leading to the conclusion that there is no damage for which all the accused and eventual third parties should be jointly and severally liable, which is the assumption under which the civil claims were quantified by the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General (Procuraduría General de la República). What could exist are damages caused by the criminal conduct of specific groups of accused, for which the accused of the group and eventual third parties would be jointly and severally liable, independently of the eventual damages caused (sic) by other groups of accused. From the study of the accusation, and in application of the rules of solidarity already analyzed, the existence of the following groups of accused and civil defendants is determined that could be jointly and severally liable among themselves, for the damages and losses that they eventually could have caused, regarding concrete and specific acts, acts that have no relation among themselves, for the purposes of determining civil liability, even though some of the groups have certain individuals or legal entities as a common denominator. 1.- [Nombre015], [Nombre009], [Nombre004], Alcatel Cit, the State, the Costa Rican Electricity Institute. Servicios Notariales O. <span class=GramE>C.'.,</span> 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 of them in relation to the crimes of penalty of the corruptor attributed to [Nombre015] and [Nombre009] and aggravated corruption attributed to [Nombre004]. 2.- [Nombre015], [Nombre009], [Nombre001], Alcatel Cit, the Costa Rican Electricity Institute, Servicios Notariales Q. C., Selva La Marina S. A., Gambu.sino.s S<span class=GramE>. .</span>9., Finca Salitral S. A., Quántica S. A. and Punto de Negocios L. Q. C. S. A., all of this in relation to the crimes of penalty of the corruptor attributed to [Nombre015] and [Nombre009] and aggravated corruption attributed to [Nombre001]. 3.- [Nombre015], [Nombre009], [Nombre021], [Nombre024], Alcatel Cit, the State, the Costa Rican Electricity Institute, Servicios Notariales Q. C., Selva La Marina S. A., Gambu.sinos S A., Finca Salitral S. A., Quántica S. ,9. <span class=GramE>and</span> Punto de Negocios L. Q. C. S A., all of them in relation to the crime of illicit enrichment attributed (as reclassified) to [Nombre021], and the crimes of illicit enrichment and actual favoritism attributed to [Nombre024]. 4.- [Nombre015], [Nombre009], [Nombre026], [Nombre012], Alcatel Cit, the State, the Costa Rican Electricity Institute. Servicios Notariales Q. C., Selva La Marina S. A<span class=GramE>..</span> Gambusino.s S. A., Finca Salitral S. A., Quántica S. A. and Punto de Negocios L. </i>Q. ('. <i>S. A., all of them in relation to the crimes of penalty of the corruptor attributed to [Nombre015] and [Nombre009] and aggravated corruption attributed to [Nombre026] (criminal action suspended by opportunity criterion) and instigation to aggravated corruption attributed to [Nombre012]. </i><b>5.- </b><i>[Nombre015], [Nombre009], [Nombre007], Alcatel Cit, the Costa Rican Electricity Institute, 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 of them in relation to 3 crimes of illicit enrichment attributed to [Nombre007]. 6.- [Nombre064], [Nombre018], [Nombre027], Alcatel Cit, the State and the Costa Rican Electricity Institute and Intelmar S. A., in relation to the acts of penalty of the corruptor attributed to [Nombre064] (already convicted) and [Nombre018] and aggravated corruption attributed to [Nombre027] (already convicted). 7.- [Nombre018], [Nombre026], the State and the Costa Rican Electricity Institute in relation to the crimes of penalty of the corruptor attributed to the first and aggravated corruption to the second. 8.- [Nombre012] and the State in relation to four crimes of illicit enrichment attributed to [Nombre012]. </i>(The highlighting is not from the original. Folios <st1:metricconverter ProductID="1884 a" w:st="on">1884 to</st1:metricconverter> 1886).<b> Furthermore, on folio 1887 it determines that </b><i>"When the civil plaintiffs (Office of the Attorney General and Costa Rican Electricity Institute), proceeded to quantify claims in the manner they did, they leave the Court unable to rule on the <span class=GramE>merits</span> of the same. To rule validly, the Court would have to disaggregate the different groups of joint and several debtors, determine the specific acts attributable to them, and determine the eventual damage that those acts may have caused to the Costa Rican Electricity Institute and/or to the collective and diffuse interests that the Office of the Attorney General represents. Only from the foregoing could the civil claims be assessed, which would have to be modified in accordance with the mentioned <span class=GramE>factual</span> assumptions, which are their cause. The foregoing is not a task that the Court can perform, because it concerns extremes whose determination falls exclusively to the parties and not to the Court, which in doing so would lose its objectivity and impartiality by supplementing the deficiencies of the parties and would violate the principle of congruence, by resolving beyond what was requested"."</i> (Cf. <span class=GramE>folios</span> <st1:metricconverter ProductID="172032 a" w:st="on">172032 to</st1:metricconverter> 172034). For the plaintiffs, that analysis would be acceptable if the State were being required some type of civil liability, but in this case it is not.<span style='mso-spacerun:yes'> </span>Thereby, they allege a violation of the principle of congruence and of the autonomy of the will of the parties; because new civil defendants were included, to whom liability is assigned, resolving beyond what was requested, surprising everyone, since it was in the judgment (after a process of almost seven years), when the new civil defendants are mentioned. They invoke ruling No. 618-F-SI-2010, of 9:15 a.m. on May 20, on the principle of congruence:<i> "(...) a principle from which the judge, when resolving in a judgment, must conform to what was requested by the parties. If it departs from the material claims of the lawsuit, it could incur different defects. Ultra petita, if it grants beyond what was requested. Extra petita, when it adds extremes never requested nor debated by the litigants. Citra petita, in case of omitting a ruling on points discussed between the parties. Likewise, there could be incongruence due to contradictory provisions in the ruling". </i>A clear precedent, on how the parties' requests are what delimit the matter of the judicial debate. Later it cites the following fragment of the ruling, visible on folio 1892: <i>"The Office of the Attorney General could not ignore, when formulating the civil compensatory action and its claims, that the State and the Costa Rican Electricity Institute were also indicated by law as jointly and severally liable to respond for the damages and losses to the collective or diffuse interests, whose compensation is claimed. The foregoing because in the eventual production of the damages and losses, public officials of the Executive Branch, the Legislative Branch, and the Costa Rican Electricity Institute intervened." </i>Lines further down <i>"just as the Courts of the preparatory and intermediate procedure, the civil defendant parties could also have alleged the defects pointed out to the civil compensatory actions in the previous stages and not wait for the conclusions of the debate, in which case they also had their share of responsibility in that the defects were not overcome and the Court could rule on the merits of the allegations, claims and defenses formulated". </i>From which the appellants criticize, a criterion is issued on a topic never discussed -the supposed state liability and its corresponding solidarity and compensation-, and by which, it is argued, it was impossible to resolve the merits of the matter, but without that being a claim alleged. They consider that even though some defenders, when issuing their conclusions, made mention of the topic of state liability regarding the actions of public officials, it does not constitute a formal pleading capable of being accepted by the court. They insist that the Office of the Attorney General filed civil actions to claim the damage generated (which affected the entire country), by the plan devised by the corruptors and the corrupted, to guarantee the bidding of the 400 thousand lines in exchange for gifts, which it had as proven on folios 1216 and 1217 of the judgment. Therefore, the principle of congruence was broken by omitting a ruling on the civil lawsuits and their claims, specifically, the condemnation for the social damage caused by the illicit acts aired in this case, by all the accused. The principle of autonomy of the will of the parties was violated, because the judges, far from resolving the claims raised by the parties involved (as was their duty), <span class=GramE>attribute</span> liability to the civil plaintiffs (without holding the status of civil defendant), surprising all the duly constituted parties. They add<span class=GramE>: <i><span style='mso-spacerun:yes'> </span>"</i></span><i>The Court argues, in general terms and referring to the civil plaintiffs -ICE and Office of the Attorney General- regarding acts that generate civil liability and in which public officials participate, that by Law they have responsibility, and it may be true, if it were a liability claimed by their administered parties and if they were civil defendants, but this is not the case, because it is the State itself, that is taking action to combat the corruption of its officials. If the Court's criterion were accepted, then the State or any autonomous institution, that wanted to report or pursue the corruption of its officials would be civilly liable<span class=GramE>?</span> Could the State or any autonomous institution not try to clean its house of corruption, without finding itself civilly liable for the same acts it reports<span class=GramE>?</span> The argument is illogical and clearly improper. As indicated supra, the Court mistakes its decision, as it placed itself in a process where the liability is requested by an administered party against the State, but this is not the case, since in this process it is the State itself that requests the liability of its corrupt officials, a liability towards society"</i> (Cf. folio 172039). They highlight that the plaintiffs had chosen the criminal route to formulate their civil claims and the judges were competent to resolve them, therefore, they criticize and qualify as erroneous their decision to refer them to the civil route, based on a misinterpretation of the General Law of Public Administration (Ley General de la Administración Pública), of the Organic Law of the Office of the Attorney General (Ley Orgánica de la Procuraduría General de la República) (numerals 1 and 3) and article 38 of the Code of Criminal Procedure (Código Procesal Penal). <i>"The Court considers, from its mistaken perspective, that since the State has liability, the Office of the Attorney General in representation of the collective and diffuse interests, as established in article 38 of the Code of Criminal Procedure, should have sued that liability against the State and by not doing so incurred a violation of articles 20 and 21 of its Organic Law, which is also mistaken. While it is true the Office of the Attorney General participated in this process exercising a civil compensatory action for affectation of the collective and diffuse interests, pursuant to what is established in numeral 38 of the Code of Criminal Procedure, it is also true, that as a result of this activity, the other functions or representation that the Office of the Attorney General holds, according to its Organic Law... do not disappear"</i> (Cf. folio 172041). Later they add:<span style='mso-spacerun:yes'> </span><i>"In the sense pointed out, it is clear that the attribution of being able to exercise the civil action 'when dealing with punishable acts that affect collective and diffuse interests'; enshrined in article 38 of the Code of Criminal Procedure, is one more power provided by the legislator for the Office of the Attorney General to carry out its work and the fact of executing this power, could in no way give to understand that it ceases to be what it is or to fulfill its other attributions, that is, to consider as the Court does, that this Representation when exercising the power to file a civil action for punishable acts that affect diffuse and collective interests, which for the purposes of the process is a <u>'standing to sue'</u>;<u> </u>would cease to be the legal representative of the State, which is a <u>'legal representation granted by law'</u>;<u> </u>has no legal basis and they are two completely different things. From this point of view, to interpret that in this process there has been a non-observance of our obligations contained in articles 20 and 21 of the Organic Law of the Office of the Attorney General of the Republic, for not having sued the State upon being considered civilly liable -in the Court's logic- understand not suing our 'legally represented', is completely illogical and irrational, from the legal point of view and would be going against our organic law and the mandate contained therein. Hence, the Court's reasoning becomes mistaken and therefore causes the challenged judgment to fall into the defect of erroneous interpretation through poor appreciation of the norms on which it is based, that is, articles 1, 20 and 21 of that normative body."</i> (Cf. folio 172048 and 172049).<span style='mso-spacerun:yes'> </span>Regarding what is provided in article 38 of the Code of Criminal Procedure, they consider it clear that it confers on the Office of the Attorney General one more attribution, but not a representation (which may or may not, be exercised). They affirm an error by the Court in equating procedural standing (to sue) with a legal representation (of the collective or diffuse interests), then, they cite article 1 of the General Law of Public Administration for the purpose of distinguishing both concepts and point out: <i>"Article 38 grants the Office of the Attorney General the necessary standing to sue civilly in cases of punishable acts where collective or diffuse interests are affected to collect social damage, but it is no more than an attribution that legitimizes its participation in the process; if one seeks who holds the legal representation of society or who represents the collective or diffuse interests of a society, we would have to refer to the previous concepts to conclude that it is the State as the greater and primary figure of the Public Administration that represents society and its interests. Therefore, to sustain as the Court does that the Office of the Attorney General represents the diffuse and collective interests pursuant to article 38 of the Code of Criminal Procedure, is not only legally improper, since according to this interpretation one article (article 38 of the C.P.P.) would be disapplying a Law (Organic Law of the Office of the Attorney General) and only for specific cases, but would also fall back into the impossibility, as explained, of the Office of the Attorney General civilly suing its represented party, who, moreover, is the representative of the interests sought to be protected"</i> (Cf. folio 172050 and 172051).<span style='mso-spacerun:yes'> </span>Given the aforementioned error, the petitioners point out, they request the annulment of the judgment and the correct application of the invoked regulations. <b>VI.- Fifth ground.- <i>"Erroneous interpretation of articles 106 of the Penal Code, 1046 of the Civil Code and 113 of the Code of Criminal Procedure"</i></b> (Cf. folio 172051).<span style='mso-spacerun:yes'> </span>They question the analysis carried out in the judgment regarding the joint and several liability of the civil defendants, whom they divide into groups and which from the perspective of the Office of the Attorney General is erroneous, as it deems it feasible to demand that joint and several liability from all the civil defendants. In support of its criterion, it cites ruling 645-2010, of 3:00 p.m. on June 4, 2010, which in pertinent part establishes: "The defining character of the joint and several obligation consists in that <i>"... each debtor is directly committed to the payment of the entire debt... "<span class=GramE> (</span>Brenes Córdoba, Alberto: <u>Tratado de las Obligaciones</u>,<u> </u>7th edition, Juricentro, San José, 2006, pp. 56-57). Further on, the same author specifies: "...What properly constitutes joint and several liability... (is) the circumstance of being directly liable 'for the whole and as debtor of the whole'; which is the sense of the Latin phrase in totum et totaliter that is usually employed to characterize the joint and several commitment<span class=GramE>..</span> . <span class=GramE>" (</span>Op. C i t, p. 58). Precisely the creditor's right of election, or the power "...to demand the performance from one of the debtors, from all of them at once, or successively... "(Op. Cit, p. 59), is the guarantee offered to them with joint and several liability (article 640 of the Civil Code), which comes to naught with the division into quotas carried out by the lower court, starting from an erroneous interpretation of article 135 of the rules in force regarding civil liability, of the Penal Code of 1941, a norm also erroneously invoked by the appellants. The mentioned numeral 135 provides: "...The obligation of the participants in a punishable act is joint and several regarding civil reparation; but among themselves each one shall be liable for the quota assigned by the judge, according to their participation... ': The phrase "-each one shall be liable for the quota assigned by the judge, according to their participation..."<span class=GramE>of</span> course, does not refer to the division of liability or its conversion into a joint obligation. Rather, it refers to the right of recourse that, among themselves, the joint and several debtors possess (numeral 651 of the Civil Code). That is to say, that after the partial or total payment has been made by one of the debtors, they can claim from the others the return of the payment that corresponds to them to compensate, together with the costs and interest accruing from the day of payment, by reason of their share of liability. However, it concerns a right of the joint and several co-debtors, which they may exercise subsequently, and not a power opposable to the creditor, nor a stipulation in favor of division into quotas by the Court because, as stated, that would nullify the guarantee of election, intrinsic to the joint and several obligation. Finally, it is worth indicating that the fact that the civil plaintiffs did not challenge the distribution of the total payment of moral damages into quotas or fractions, which occurred in the challenged judgment, does not imply a tacit waiver of joint and several liability and, by extension, of the right to choose against whom they sue to enforce the obligation existing in their favor. This is so, because the reasons for considering joint and several liability waived, are stipulated in a exhaustive manner, in article 647 of the Civil Code, besides that "... The waiver of joint and several liability is not presumed, because the intention to donate or to make an unmotivated abandonment of a right is never to be presumed... " (Brenes Córdoba, Op. Cit, p. 62).". Under this correct understanding, the Court should have condemned all the defendants to the total payment of the social damage suffered, not the proportionality regarding each group, since all contributed through a specific function to the success of the realization of the general plan of action"</i> (Cf. folios 172054 and 172055).<span style='mso-spacerun:yes'> </span>They reiterate that the joint and several liability of all participants was requested (pursuant to what is provided in articles 106 of the Penal Code and 1046 of the Civil Code), therefore the court should have resolved the merits, because even when it divided the defendants into groups, it always alluded to the joint and several liability of those persons (the petitioners citing ruling of the Third Chamber No. 238-2009, of 9:48 a.m. on March 13, on the subject).<span style='mso-spacerun:yes'> </span>They consider articles 106 of the Penal Code, 1046 of the Civil Code and 113 of the Code of Criminal Procedure violated, highlighting that the last of the precepts provides the possibility for the civil plaintiff to direct its lawsuit against the defendant(s) it deems pertinent (by the principle of autonomy of the parties), citing the text of Dr. Juan Marcos Rivero Sánchez (Responsabilidad Civil, Volume II, second edition, page 347), also Dr. Javier Llobet Rodríguez, in his work Proceso Penal Comentado, fourth edition, page 269, when he comments on related article 113 of the Code and indicates: <i>"Since the exercise of the civil action is of private interest, the person who considers themselves injured can direct the action against one or several of the accused, against one or several of the possible civil defendants, or against all of them. ... Regarding civil liability, it is important to take into account that the Penal Code contemplates joint and several liability of all the participants, which implies that in principle it is not necessary to sue all the accused, but rather the civil plaintiff can choose whom to sue; from this perspective, a necessary passive joinder of parties does not exist". </i>The petitioners mention rulings of this Court on the matter (638-2006, of 3:45 p.m. on June 28). Regarding the argument of the trial Court, that the accused participated in different stages or with different behaviors, they consider that the problem does not concern the determination of the damage, but its quantification in relation to the participation of each defendant, an aspect that did not prevent the judges from resolving the merits of the civil action, so that they could be jointly and severally condemned and then referred to the corresponding route, to determine the quantum of each one. Regarding the opposition between the criterion of solidarity groups among the defendants (maintained in the judgment) and the defense of the joint and several liability of all, they state: <i>"The damage claimed is the social damage caused by the acts of corruption and this damage is focused on compensating the society that is affected by acts of corruption by its public officials; from this point of view, society is affected as a whole and not its individuals in a particular way, therefore the damage suffered is general and is one. Furthermore, from the actions deployed by the accused, it is observed that all are directed at a common goal, in this case that Alcatel would manage to break the monopoly of the cellular offer, that the public bidding would be carried out and that Alcatel would be the awardee, aspects that occurred and were taken as proven in the judgment now challenged. That is, the Court does not analyze the common goal of the behaviors deployed by the accused and how all of these, as acts of corruption, were destined to obtain a common goal, which was achieving the final award of a contract. The construction of groups carried out by the Court is very subjective and starts from the crimes attributed to the accused and according to the concept of public officials used to establish the State's liability, which is wrong, just as seen above. Furthermore, these are acts that are related to each other, since the result pursued and obtained was not achieved by a single person, but by all of them together. To demonstrate the subjectivity of the Court in determining the groups, let us just think that, if on one hand, the groups were determined by the actions undertaken by Alcatel's representatives,<span style='mso-spacerun:yes'> </span>such groups would not exist, since they participate with all the other accused in the present acts"</i> (Cf. folios 172063 and 172064). They request annulling the judgment and correctly applying the invoked regulations. </span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><b><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span>XVII.- <u>THE APPEAL FILED BY THE OFFICE OF THE ATTORNEY GENERAL (PROCURADURÍA GENERAL DE LA REPÚBLICA) IS RESOLVED.-</u></span></b><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span>Regarding the civil aspects formulated by attorneys Gilberth Calderón Alvarado, Attorney for Public Ethics (Procurador de la Ética Pública) and Miguel Horacio Cortés Chaves, Deputy Attorney for Public Ethics (Procurador Adjunto de la Ética Pública), in their capacity as representatives of the State, constituted as Civil Plaintiffs, this Chamber has already upheld the objections presented by attorney Cristian Arguedas Arguedas, who questioned the trial Court's decision to omit a ruling on the civil actions filed by the Office of the Attorney General and the Costa Rican Electricity Institute; applying the extensive effect and ordering the remand for a new proceeding according to Law on said aspects. For procedural economy, an express resolution on the formulated objections is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the aspects of the compensatory civil action of interest. </span><span lang=ES-CR style='color: black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span><b>XVII.-<u> APPEAL FILED BY ATTORNEY MARIO NAVARRO ARIAS.-</u></b> Attorney Mario Navarro Arias, special judicial representative of 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, based on articles 39, 41 of the Political Constitution, 1, 142, 184, 363, 367, 369 subsections b), c), d), 437, 438, 439, 447, 458, 459, 460 of the Code of Criminal Procedure, joins the cassation appeals filed against the judgment number 167-2011 issued by the Criminal Court of the Treasury and the Public Function (Tribunal Penal de Hacienda y la Función Pública), of the Second Judicial Circuit of San José, 3:00 p.m. on April 27, 2011, by the civil defendants [Nombre012] and Alcatel Lucent-France, the Office of the Attorney General and the Costa Rican Electricity Institute (the latter in their capacity as civil plaintiffs).

**First ground.-** It alleges a lack of reasoning in the rejection of the award of costs, in violation of Articles 39 and 41 of the Political Constitution, and 363 and 369 of the Code of Criminal Procedure, because the tribunal confines itself to the fact of having dismissed the civil claims and, to attributing—in part—to the civil defendants responsibility for the consequences of the claims. They qualify that reasoning as generic and reproach the absence of an examination of the procedure followed for the civil action (acción civil) within the process: the filing of the claim, their participation in the preliminary hearing (where they protested the defects of the civil actions (acciones civiles)), as well as in the adversarial stage: "<i>Ergo, this representation NEVER <b>CONTRIBUTED TO NOR ADMITTED THE DEFECTS OF THE CIVIL ACTIONS, AND NOR TO AFFIRM</b> OF THE ICE ACTION, THAT IT MODIFIED ITS CLAIMS IN THE PRELIMINARY HEARING, WHEN IT COULD NOT DO SO AND IN THE CONCLUSIONS STAGE when it was also not permitted to do so. And we, in our capacity as civil defendants, challenged those circumstances, CONSIDERING THE CIVIL ACTIONS RECKLESS. However, as we noted in this section, the release from the payment of costs is for reasons that the tribunal does not adequately substantiate, leaving the judgment devoid of reasoning and causing the ruling in this section to have an unavoidable defect, which must be so declared and a partial remand trial ordered</i>" (Sic. Cf. folio 171415). **Second ground.-** It considers that there is an erroneous application of Articles 267 and 270 CPP and a lack of application of Article 221 CPC in relation to numeral 266 CPP. It explains that from Report No. 202 of the Economic Section of the Judicial Investigation Organization, it is established that the civil defendants Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., La Selva de la Marina S.A., received money from Servicios Notariales QC S.A., originating from Alcatel, that is, the tribunal held it as proven that it involves private money, not from the public treasury. And it adds: "The Tribunal dismisses the actions against all the civilians, but OMITS ALL ARGUMENT ABOUT the representation as third parties thereof, AND THE REMAINING ONES FROM ALCATEL, which were not BUFETE VALERIO CASAFONT Y ASOCIADOS, and two companies THAT BENEFITED WITH MORE THAN ONE Tribunal also does not refer to is that THE CIVIL DEFENDANTS through SERVICIOS to the formulation THE ATTORNEY GENERAL'S OFFICE FAILED TO COMPLY WITH ITS LEGAL DUTY by disrespecting 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 the civil defendants participated in all the acts. And it is evident that THE CIVIL DEFENDANTS that I represent PUNTO DE NEGOCIOS, QUANTICA, FINCA SALITRAL AND LA SELVA DE LA MARINA all corporations have nothing to do with THE ACTIONS OF [Name009], [Name024], [Name026], [Name001], [Name004], [Name018], [Name012], [Name021]" (Literal copy of the original. Cf. folio 171416). It points out that for seven years its represented parties endured the process against them and therefore, the actions filed and declared without merit must have consequences. It states: "The cause for obviating those consequences would be the plausible reason to litigate and we, the representation of Punto de Negocios, La Selva de la Marina, Quántica, and Gambusinos, ask: Where lies the plausible reason to litigate if a <b>CAUSAL NEXUS BETWEEN THOSE DEFENDANTS</b> AND THE ACTS OF THE ACCUSED WHO WERE SENTENCED is not determined? What money BELONGING TO ICE, OR TO THE STATE reached the hands of the civil defendants? And the same questioning applies here regarding the money received by Servicios Notariales QC S.A. and [Name009] in a personal capacity. That the claims were confused, and that joint and several liability (solidaridad) was not adequately determined. The claims were dismissed, and as such, their promoters must have consequences" (Cf. folio 171417). In sum, it requests that the civil plaintiffs (Instituto Costarricense de Electricidad and the State) be ordered to pay the costs of the process, including the cassation appeal. **Third ground.-** It protests an erroneous interpretation of Article 277 CPC, regarding the compensation for damages. It points out that by omitting a ruling on the merits in the judgment, the lifting of the ordered attachments (embargos) is ordered, as well as the rejection of the award for damages. Then, regarding the possibility mentioned in the ruling of resorting to the civil jurisdiction (vía civil), it states: "In the first place, the Tribunal's decision to offer the plaintiffs the possibility of resorting to the ordinary jurisdiction (vía ordinaria), we suppose, in pursuit of their interests, is unfortunate. That decision is admissible as long as the plaintiff party has not endured everything that the civil process within the criminal process entailed. The procedural principle of 'choice of jurisdiction' is ignored by the Trial Tribunal. The plaintiffs decided to choose the jurisdiction of the civil action (acción civil) within the criminal process in pursuit of their interests. So much so, that there are even pending cassation appeals from the civil plaintiffs. That the Tribunal dismissed their claims for defects in the CLAIMS, cannot be the basis to refer the parties to a subsequent civil claim. The plaintiffs exhausted the criminal process jurisdiction for probable compensation; that they did not know how to do it, does not give them the right to remain legitimized to do so in the <b>ordinary civil jurisdiction</b>. That interpretation made by the Tribunal truly does injure numeral 2 of the Code of Criminal Procedure. The Judge knows the law, and under that premise, it is evident that the Tribunal is benefiting one of the parties to the process, erroneously, due to their poor performance. The claim was DEFINITIVELY DISMISSED IN THE JUDGMENT of the Criminal Tribunal, the lifting of the attachments was ordered as a consequence thereof and in that case, the cash money must be consigned in favor of the defendants as compensation, as fixed compensation: that is the content of the norm in question and its spirit. (...) The civil defendants I represent had to endure seven years, of a civil process filed within a criminal process, with attachment included; waiting for the claims to be rejected for reasons of form and substance. The Tribunal in its judgment, after those seven torturous years, decided to reject the claims as defective. It was necessary to wait for the parties' conclusions to know <b>what those claims were</b>, the defendants did their part rejecting what was sought by the plaintiffs. And, we return to the issue noted in preceding grounds: What do the civil defendants, the companies I represent, and [Name009] in a personal capacity, <b>have to do</b> with public money or funds? Nothing, nothing, and nothing. What <b>do the companies I represent have to do with the actions of the sentenced individuals? Where lies the causal nexus between the criminal</b> act and the civil claim? There is no answer to this question, because the Tribunal dismissed the civil claims due to DEFECT IN THE CLAIMS, ESPECIALLY ON THE ISSUE OF JOINT AND SEVERAL LIABILITY" (Cf. folios 171418 and 171419). It cites Ruling No. 115-1995, of October 18, and requests that the appeal be granted, the ruling be revoked insofar as it rejects compensation for damages, and that the case be returned to the Trial Tribunal so that it carries out the "reimbursements" to the civil defendants in the proportion that corresponds according to the claims filed.

**XVIII.- THE APPEAL FILED BY ATTORNEY MARIO NAVARRO ARIAS IS RESOLVED.-** Regarding the civil aspects raised by Attorney Mario Navarro Arias, special judicial representative of 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 [Name009] in their personal capacity, this Chamber has already granted the objections presented by Attorney Cristian Arguedas Arguedas, who questioned the decision of the lower court to omit a pronouncement on the civil actions (acciones civiles) filed by the Procuraduría General de la República and the Instituto Costarricense de Electricidad; applying the extensive effect and ordering the remand for a new substantiation in accordance with Law on said aspects (including costs). For procedural economy, an express resolution on the formulated objections is omitted, since they deal with substantive aspects that must be examined precisely in the remand already ordered regarding the aspects of the civil action for damages of interest.

**XIX.- APPEAL FILED BY ATTORNEY MARIO GONZALO SOTO BALTODANO.-** Attorney Mario Gonzalo Soto Baltodano, president with powers of unlimited general agent of JURISO, S.A., files against judgment No. 167-2011, of 3:00 p.m. on April 27, 2011, issued by the Hacienda Criminal Tribunal of the Second Judicial Circuit of San José; an appeal of the judgment (cf. 172884 to 172915, volume XXXIX); as well as a cassation appeal (cf. folios 17062 to 17082, volume XXXVI). Given the coincidence of claims in both challenges, the claims are set forth, with some literal citations from the second of them, corresponding to the appeal of the judgment. **First ground.-** It explains that the referenced company is the owner of the Suzuki vehicle, license plate [Valor033], whose forfeiture (comiso) was ordered in the challenged judgment, its represented party being an interested third party (tercera interesada) who was never notified of the process, even though it is an owner in good faith. It states: <i>"Said asset was acquired under the protection of the Public Registry free of liens (gravámenes) and notations, for a just cause and for its fiscal value. The sale price was paid through the payment of my fees for the fiscal value of the vehicle, thus the Defense of [Name001] was settled, which I exercised until [Name001] himself replaced me, on August 30, 2006 (proof 1 certification of transfer and substitution [Name001]). That is to say, with the transfer of the car, the fees were considered satisfied. The transfer was carried out by a third person who at that time was the unlimited general agent of the company owning the vehicle and who I had always known as the one representing Venezuelan interests in my client's businesses. That deed was executed when the State only had a mere expectation of right in this trial, there is no judgment, but on the contrary, there are resolutions from the Trial Tribunal itself of the II Judicial Circuit of San José, Goicoechea, that go against said expectation of right. This is how the Criminal Tribunal of the Second Judicial Circuit of San José issued Ruling 246-05, at 4:15 p.m. on May 12, 2005, taking into account that 'the Public Prosecutor's Office requested an extension of the precautionary measures (medidas cautelares) and therefore requests that the challenged resolution be maintained. Having analyzed the case file, it appears that the Public Prosecutor's Office based its initial request arguing that the defendant has concealed facts and performed acts to obstruct the investigation, subsequent to his investigative statement (indagatoria). In its request, the Public Prosecutor's Office points out as an example of these actions the transfer of some vehicles, as recorded on folio 188 and following. However, the transfer deed is dated September two thousand four and [Name069] indicates that indeed it was on those dates that the defendant [Name029], sister of the defendant, asked her to buy several companies to which the vehicles were later transferred. The defendant was questioned on October 8, two thousand four, and said he accepted the facts. If the Public Prosecutor's Office at that date did not have knowledge of those transfer actions, nothing obliged the defendant to self-incriminate on facts that were not being attributed to him. The truth is that those circumstances occurred prior to the investigative statement and we cannot say then that the defendant's situation has changed and that he has executed subsequent acts to obstruct the investigation... As a necessary consequence, the resolution is revoked' "</i> (Cf. folios 172886 and 172887). The appellant states that it involved a liquid and due debt, because attorneys' fees are privileged collection rights, it being the will of the company's agent to sell him the vehicle to pay for his professional work, the vehicle being free of attachments (embargos), notations, and liens (gravámenes). He explains that he acquired the vehicle in the name of the company JURISO S.A., where he places his assets. He considers that his represented party is a third party with a better right, being first in time with respect to the appealed judgment. He adds: <i>"When the resolutions on precautionary measures (medidas cautelares) of which I had knowledge, that is until August 2006, both against the defendant and against the vehicle, had been rejected. That proves why the vehicle is absolutely clean in the Registry, no annotation, attachment, or forfeiture had been declared. Rather, they had rejected the annotation" </i>(Cf. folio 172888). It mentions the resolution of 3:00 p.m. on November 23, 2006, of the Criminal Court of the Second Judicial Circuit of San José, rejecting the precautionary measures against [Name001] and where in fact 85 specific reference is made to the Suzuki, license plates [Valor033]. In sum, upon separating from the defense, all the resolutions issued dismissed a claim over that asset, they were mere expectations, [Name001] had not been convicted of fraud, nor were there precautionary measures, while his right to fees was a prior, due, expired, and valid debt. That is, the transfer in favor of JURISO S.A., was a legitimate act for payment of a prior debt, proven in the same case file by the professional work deployed in the proceedings: precautionary measures, testimonies, negotiations of alternative measures, abbreviated processes, and many hours of study and consultation. It requests that the judgment be quashed and a remand be ordered to resolve in accordance with Law; or, that the forfeiture (comiso) be revoked, since its "represented party" is the legitimate owner. **Second ground.-** It reproaches as a breach of due process, the violation of Articles 39 and 41 of the Political Constitution, mentions Article 45 of the Constitution, as well as numerals 110 of the Penal Code, reproduces the content of Article 2 of the Law of Judicial Notifications and 449 of the Civil Code; then it accuses the lack of notification to its represented party JURISO S.A. (registered owner of vehicle [Valor033]) nor to Dominical Antigua S.A. (former owner), at least of: the civil actions (acciones civiles), the scheduling for trial, and the judgment, generating a grievance by ordering the forfeiture (comiso) of that asset and by annulling in the challenged judgment the deed that placed that asset in the name of Dominical Antigua S.A. (even though the Public Registry shows that this vehicle belonged to JURISO S.A.). Consequently, it protests because the forfeiture (comiso) of an asset was applied to a third party not part of the process. It cites Ruling No. 482-G of the First Civil Tribunal, Second Section of San José, at 8:35 a.m. on March 11, 2004: <i>"III.- The appellant also states that the debtor [Name090] cannot claim due payment because the ownership of a credit passes to the assignee by the mere effect of the assignment, that in this case the debtor expressly waived the notification of the assignment, so that as in lien matters there exists registry publicity, the debtor was obliged to consult the Public Registry and verify the identity of his creditor, before making the payment".</i> It considers that a public authority that is going to seize an asset has the same duty as a notary: to consult the registry, since it is going to constitute, modify, or extinguish people's rights. It points out that in this case, even though only the transfer by Dominical Antigua S.A. was annulled, and not that of its represented party (for which it is fully valid), the forfeiture is ordered, affecting JURISO S.A. as a third party not part of the process. It requests that the judgment be annulled, totally or partially, revoking the forfeiture against its represented party; subsidiarily, it requests that the forfeiture order be revoked, because the owner does not have to be affected. **Third ground.-** Based on Articles 142, 369 subsection d) of the Code of Criminal Procedure and 110 of the Penal Code, it accuses contradictory reasoning and non-observance of the rules of sound critical judgment (sana crítica racional), when examining evidentiary elements of decisive value. It considers there was a breach of the rules of correct human understanding when establishing the authorship of [Name001] as the perpetrator of the crime of aggravated corruption in the form of improper bribery (cohecho impropio), due to a lack of correlation between the proven facts and the admitted evidence, despite the absence of evidentiary elements, so much so that it is impossible to specify the facts of the accusation and the judgment. It reproduces what was held as proven in the judgment about the participation of [Name001] (facts 44, 45, 130, and 131), then the documentary evidence of interest (corresponding to seizure records 383988 and 383889 of July 21, 2005; seizure records 386753 and 386754, visible in volume IX, folios 3600 to 3601, from Banco Cuscatlán) and adds: <i>"That is, that the Tribunal, despite affirming in the proven facts of decisive value such as fact 130 and 131, that: 'It was agreed that the delivery would be conditional on the effective award of the offer that Alcatel would present to ICE'. Omits analyzing the investment certificates from which the direct opposite is deduced, because if the award was on January 18, 2002 and the Comptroller's approval (referendo) was on March 7, 2002, it cannot be affirmed that the delivery would be conditional on the effective award of the offer, as the Sentencing Tribunal does, because [Name001] had $20,000.00 in his possession by December 10, 2001. That is, sums were transferred to him before the conditions stated in the judgment. This contradiction is also noted in the table of DELIVERY OF MONEY TO PUBLIC OFFICIALS, on page 1712 of the Judgment, where it is established: 'Servicios Notariales QC, February 13, 2002, [Name001]'. That is, that also before the date of the Comptroller's approval, other money had been transferred to [Name001], in addition he had traveled abroad frequently, it is thus according to the table of Delivery of Money to Public Officials, on page 1712 and the analysis of the dissenting vote of Judge Camacho..." </i>(cf. folio 172900 and 172901). The appellant considers that a clear, precise, and circumstantial relationship of the facts that constituted those necessary steps, or what was agreed, as stated in the accusation, was never established. He asserts that fact 130 contains a "fallacy of false cause" in violation of Article 142 of the Code of Criminal Procedure, by indicating that the "necessary steps" occur within the scope of his functions as advisor to the Executive Presidency of ICE and as the person in charge of executing the 400,000-line project, to make the contracting effective in favor of Alcatel. The foregoing, the appellant estimates, implies that [Name001] could override the Board of Directors, [Name061] (Deputy Manager for Telecommunications of ICE and signatory of the contract), [Name052] (Executive President) and all the members of the commission appointed for that project and the Contraloría General de la República; which is legally and functionally false. He points out that even though at the express request of the Public Prosecutor's Office, there is on folio 1569 and following (volume V) the detail of the functions of [Name001], neither in the accusation nor in the judgment is it specified which of them was the one carried out in favor of Alcatel's offer, <i>"... much less when only on December 21, 2010, and January 15, 2001, [Name052] was asking the Comptroller's Office for authorization for the direct purchase (the approval of the abbreviated process 01-2001 of bidding did not exist) and [Name001] had already received the money certificates in December 2001. With all due respect, it is absurd to convict [Name001], when at the historical moment in which he received the money, the bidding process did not even exist, nor were they thinking about it. The bidding process was approved until March of the following year, March 7, 2002"</i> (Cf. folio 172904). It states that it is also recorded on folio 1795 (volume V) that the Director of Human Resources, [Name087], certifies that [Name001] worked in the institution only in the Executive Presidency, questioning then, what was the typical, unlawful, and culpable action carried out by [Name001] to favor Alcatel in the awarded bid. It reproaches that the judges did not weigh (according to proof on folios 1569 and 1795) that the accused [Name001] did not have exclusive dedication, nor prohibition, consequently, it is not demonstrated that the money received before the abbreviated process 01-2001 was illicit or related to the process. It is asserted that the judges omitted analyzing that according to the content of the document on folio 1569, the functions of [Name001] were subject and subordinate to the Executive Presidency, consequently, the "necessary actions" could not be those of the defendant as he lacked authority to decide and execute (citing Article 11 of the General Law of Public Administration). It requests that the judgment be quashed and a remand be ordered for its processing in accordance with Law, or, that it be resolved as established in Article 9 of the Code of Criminal Procedure, issuing a judgment of acquittal in favor of the accused [Name001] and consequently, revoking the forfeiture ordered on its represented party's vehicle. **Fourth ground.** It accuses the erroneous application of Article 340 of the Penal Code (improper bribery), because despite knowing the functions performed by the defendant [Name001], the specific act proper to his functions that was carried out is not identified, the pronouncement limiting itself to alluding to "necessary actions". After questioning what that expression could mean, he questions how "necessary actions" were going to be carried out on December 10, 2001, regarding a bid whose contract was not signed until January 18, 2002, and was approved in March 2002. He adds: "<i>On the other hand, he did take trips abroad in the month of December 2001, as already stated. But it is worth noting that his departures from the country are on weekends or vacations, that is, they are not related to his functions. Nor is it demonstrated that the money [Name001] receives comes from his functions, it is not known why money and trips coincide on vacation days or weekends, but that excludes, in principle, that it is a fact in Costa Rica, but above all it excludes that it is a matter that has to do with the abbreviated process 01-2001. That is, that an element of the criminal offense (tipo penal) is breached and there is a lack of criminal classification (tipicidad) in transgression of the Penal Code" </i>(Cf. folio 172908 and 172909). It cites Articles 1 and 4 of the Penal Code, then requests that the conviction judgment of the accused [Name001] be annulled and an acquittal be issued, freeing him from all penalty and responsibility. **Fifth ground.-** It accuses the lack of criminal classification (tipicidad) of fact 187 of the judgment, because it considers that intent (dolo) was not demonstrated to configure the fraud of simulation (fraude de simulación). It states: <i>"1. It was never proven that the defendant knew of the publications in the media against Servicios Notariales QC, to demonstrate that he knew the origin of the money, just as it has been proven in the preceding grievances the reasons why he received those sums, are not those indicated by the judgment. 2. Nor was the whereabouts of the vehicles demonstrated to prove that the act was simulated and that it was not true, that is, it cannot be affirmed that the defendant remained in possession of the motor vehicles benefiting thereby. 3. Nor were registry studies carried out on the company that acquired the vehicles from fact 187, to verify if that company was always controlled by the defendant or if it ended up in third-party hands. 4. Nor was it demonstrated that the defendant always remained in possession of the share package. 5. The evidence collected from CUSCATLÁN INTERNACIONAL was brought into the process illegally and we request that it be so declared, because as stated in the same banking documents, this institution has its seat in the Bahamas and not in Costa Rica. 6. The transfers of the vehicles occurred prior to the investigative statement on the fraud of simulation, therefore the defendant did not have the obligation to self-incriminate for facts that were not being attributed to him"</i> (Cf. folio 172910). In the opinion of the appellant, the undue benefit was not demonstrated and among other aspects indicated above, in definitively, a simulated act, contract, step, or judicial filing was also not proven, with the purpose of obtaining an undue benefit, causing harm to another person. It requests that the conviction judgment be annulled and an acquittal be issued in favor of the accused [Name001], annulling the conviction and the declaration of falsehood.

**XX.- THE APPEAL FILED BY ATTORNEY MARIO GONZALO SOTO BALTODANO IS RESOLVED.-** The judgment records that the Trial Tribunal, at the request of the Public Prosecutor's Office and the Procuraduría General de la República, ordered the forfeiture (comiso) of the vehicle with license plate No. [Valor033], registered in the name of Dominical Antigua S.A., following a declaration of instrumental falsehood of public deed No. [Valor060] by Notary [Name028], ordering the corresponding registry rectifications. Regardless of the arguments made by the appellant, questioning the criminal reproach of the accused [Name001] for the crime of fraud of simulation, with respect to the mentioned motor vehicle and transferred by deed No. [Valor060] (a situation already addressed by this Chamber confirming the conviction); the truth is that a violation of due process is indeed verified with respect to Attorney Mario Gonzalo Soto Baltodano and as president with powers of unlimited general agent of JURISO, S.A., because he could be a third party of good faith affected by the forfeiture (comiso) ordered in the judgment.

Upon examination of the record, the following data are relevant: There is a photocopy of the vehicle registration certificate for license plate No. [Valor033], where the registered owner is the appellant's represented entity, JURISO, S.A., and when describing the owner's qualities, it can be read that the document was filed on July 3, 2009. The record does not show that, at the time the oral and public trial took place (starting April 14, 2010, cf. folio 14082, Volume XXIX), the representative of JURISO, S.A. had participation in the criminal proceeding before us; therefore, ordering forfeiture (comiso) under such circumstances causes a violation of due process that warrants ordering its annulment and ordering a remand for a new proceeding in accordance with law. Consequently, the appeal (recurso) filed by attorney Mario Gonzalo Soto Baltodano, president with powers of a general proxy without limit of sum of JURISO, S.A., is granted. The forfeiture (comiso) of the Suzuki Jimmy vehicle, plate [Valor033] is annulled and a remand is ordered regarding that specific point for a proceeding in accordance with law, and the appellant here must be summoned so that he has the opportunity to exercise the rights that correspond to him by law. By virtue of what has been resolved, a ruling on the other proposals made by the appellant is omitted, since the majority of them allude to substantive aspects that must be elucidated in the remand ordered here.

**XXI.- APPEAL (RECURSO) FILED BY ATTORNEY JUAN LUIS VARGAS VARGAS.-** Attorney Juan Luis Vargas Vargas, special judicial proxy of [Nombre002], president, with general powers without limit of sum of the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, filed an appeal against the judgment (apelación de sentencia) against judgment No. 167-2011, issued at 3:00 p.m. on April 27, 2011, by the Criminal Treasury Tribunal of the Second Judicial Circuit of San José (cf. 172273 to 172291); as well as a cassation appeal (recurso de casación) (cf. folios 17649 to 17674). When referring to his standing (legitimación) to appeal, he explains that both doctrine and jurisprudence (Votos No. 138-91, No. 1080-98-98, No. 583-2003, 712-2006, and 125-2010 of the Third Chamber, No. 5447-95, No. 4121-96, and No. 5464-96 of the Constitutional Chamber) recognize that right in those who, even though they have not been a party to the criminal proceeding, are *"interested affected third parties" (terceros afectados interesados)*, when the judgment has ordered the forfeiture (comiso) of property belonging to them, as is his case. Given the coincidence of claims in both challenges, the claims are set forth, with some verbatim citations from the second one, corresponding to the appeal against the judgment. **Single ground.- "Violation of due process due to infringement of the right of defense because the forfeiture (comiso) of real property belonging to a corporation was ordered"** (Cf. folio 172279). In breach of Articles 39 and 41 of the Political Constitution, 8 subsection 1) of the American Convention on Human Rights, and 369 subsection j) of the Code of Criminal Procedure, as well as numerals 103 and 110 of the Penal Code, the right to due process, defense, and to be heard, of the company owning a real property over which forfeiture (comiso) was ordered in the judgment, was violated. Citing doctrine and pronouncements of the Inter-American Court of Human Rights, of the Costa Rican Third Chamber and Constitutional Chamber on due process, he explains that the trial court in the challenged judgment ordered the forfeiture (comiso) of the property [Valor061] (as recorded on folio 1543 of the ruling), belonging to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, legal identification number 3-101-272513, without guaranteeing its participation in the proceeding. He asserts that the rationale expressed by the court for ordering the forfeiture (comiso) is not valid, since in his opinion they constitute *"mere general affirmations without a specific reference to the case and above all to the intervention of the company from which the repeatedly cited property is seized; the defect reported in this ground prevented the judge from issuing any pronouncement on the forfeiture (comiso), since the minimum adversarial premises that would guarantee having heard the defense of the aggrieved company had not been established in the proceeding. In this sense, the decision made on the forfeiture (comiso) is not based on a prior discussion between the parties, which is what is appropriate in an accusatorial system, and even more so on a matter that involves the loss of ownership of property. For this reason, the decision to order the forfeiture (comiso) in the judgment is surprising because during the processing of this case, no transfer whatsoever was given to said company, thus not providing any opportunity to present its reasons opposing such a possibility of losing the mentioned property in favor of the State"* (Cf. folio 172286). That is, the judges ordered the forfeiture (comiso) of real property without giving the owning company an opportunity to defend itself, causing it irreparable harm. He criticizes that in prior rulings, when faced with defects such as the one reported, what was resolved is partially annulled and a remand is ordered for a new proceeding (for example, Voto No. 96-2009 Third Chamber), because: (i) It would give an undue advantage to the civil plaintiff parties, who did not take action in a timely and proper manner. They state: *"This implies a breach of the defective procedural activity rule that establishes that under the pretext of repeating an act, the criminal proceeding cannot be rolled back to precluded stages"* (Cf. folio 172289). (ii) *"Due to the large dimensions of the reported procedural defect, which have implied an absolute exclusion of the affected company, which was never heard, the partial reversal of the trial and the judgment is not the adequate mechanism to restore the enjoyment of the company's intervention rights. And this is so because if a partial annulment is ordered, it would imply curtailing the opportunity to offer evidence and rebut the evidence and arguments of the plaintiffs in an intermediate stage already precluded"* (Cf. folios 172289 and 172290). He requests that the appeal be granted, partially annulling the judgment, only insofar as it ordered the forfeiture (comiso) of the property registered under sequence number [Valor061], of the Guanacaste Registry which belongs to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima.

**XXII.- THE APPEAL (RECURSO) FILED BY ATTORNEY JUAN LUIS VARGAS VARGAS IS RESOLVED.-** The judgment states that the Trial Tribunal (in a majority vote), at the request of the Public Prosecutor's Office (Ministerio Público) and the Office of the Attorney General (Procuraduría General de la República), ordered the forfeiture (comiso) of the property registered under sequence number [Valor061], of the Guanacaste Registry which belongs to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima. The Trial Tribunal in its majority vote, using as a basis Article 110 of the Penal Code which establishes: *"The crime produces the loss in favor of the State of the instruments with which it was committed and of the things or values arising from its realization, or that constitute for the agent a profit derived from the same crime, except for the right that the victim or third parties may have over them"*; ordered the forfeiture (comiso) of the mentioned real property. On folio 1897 of the judgment, the forfeiture (comiso) is ordered of the property of the [...] Registry, No. [Valor061] *"... in the name of Multiservicios Públicos Privados y Afines de Guanacaste MUPAGUA S.A., a company acquired by the companies MCS Moriah Consultores S.A. represented by [Nombre029] and which was acquired with money arising from the crime. As analyzed in Considerando IX, said companies were controlled by the accused [Nombre001] and were used by him to conceal the nature of the illicit money he was receiving."* And in effect, in the substantive recital (considerando) after establishing the criminal reproach against [Nombre001] as the responsible perpetrator of the crime of aggravated corruption in the modality of improper bribery to the detriment of the duties of public function, the judges indicate: *"The forfeiture (comiso) of the Suzuki Jimmy vehicle, plate No. [Valor033], is ordered, which was acquired with part of the illicit money received by the accused [Nombre001]. Under the same circumstances, the forfeiture (comiso) is ordered of the properties registered in the Public Registry of Property, Guanacaste Registry under the Real Folio System, Registration No. [Valor021], Sub-registration [Valor018]; Guanacaste Registry, Real Folio System Registration [Valor022], Sub-registration [Valor018]"* (folio 1543 of the judgment). However, in this specific case, the forfeiture (comiso) being a civil consequence of the punishable act, and in view of the fact that this Chamber (as detailed supra) has dismissed due to the extinguishment of the criminal action (statute of limitations (prescripción)) the accused [Nombre001] for the crime of aggravated corruption in the modality of improper bribery to the detriment of the Duties of the Public Function, the appropriate action is to grant the appeal filed by the petitioner and revoke the decision of the majority of the Trial Tribunal regarding the forfeiture (comiso) ordered on the property registered in the Public Registry of Property, Guanacaste Registry, Real Folio System Registration [Valor022], Sub-registration [Valor018]; since, as is inferred from the transcriptions made, the scant intellectual reasoning of the pronouncement links the decision to forfeit (comisar) that real property to the commission of the crime of aggravated corruption in the modality of improper bribery to the detriment of the Duties of the Public Function; not to the crime of simulation fraud (fraude de simulación) which persists and which directly involved another of the forfeited properties (the Suzuki Jimmy vehicle, plate No. [Valor033], a matter on which remand was ordered). Consequently, the forfeiture (comiso) ordered on the property registered in the Public Registry of Property, Guanacaste Registry, Real Folio System Registration [Valor022], Sub-registration [Valor018] is revoked.

**XXIII.- MATERIAL ERROR IS CORRECTED.-** In accordance with Article 146 of the Code of Criminal Procedure, a material error of the operative part communicated to the parties on December 21, 2012, is hereby corrected, specifically, in section C, so that where it says "[Nombre001]" it shall read "[Nombre004]"; so that said section would read as follows: *"**C)** The appeal filed by attorney Yamura Valenciano on behalf of the defendant [Nombre004] is granted. The case is declared time-barred (prescrita) for the crime of improper bribery in its modality of aggravated corruption that was being attributed to the defendant [Nombre004], and he is acquitted of all penalty and responsibility for this crime"*.

**POR TANTO:** In accordance with Articles 7, 24, 33, 34, 39, and 41 of the Political Constitution; 1, 2, 11, 30, and 45 of the 1973 Penal Code; Current rules on civil liability of the 1941 Penal Code; 1, 2, 9, 30 subsection e), 142, 175, 178, 180 to 184, 458, 459, and 465 of the Code of Criminal Procedure:

**A)** The appeal filed by defendant [Nombre012] is granted; the criminal action is declared extinguished due to the statute of limitations (prescripción) having taken effect; the nullity of documentary evidence No. 588 and all evidentiary elements directly dependent on it is declared; the nullity of the criminal conviction judgment issued against [Nombre012] is declared and in its place he is directly acquitted of all penalty and responsibility. The challenged judgment remains unchanged insofar as it acquitted him of four crimes of Illicit Enrichment. Due to the manner in which it has been resolved, it is unnecessary to rule on the other claims raised by appellants [Nombre012] and [Nombre088] regarding the criminal action in their appeal briefs, since their corresponding claims have been addressed. The appeal filed by attorney Cristian Arguedas is granted, and by application of the extensive effect, his appeal benefits all the civil co-defendants; the judgment is annulled in its civil aspect, insofar as it ordered to omit a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Office of the Attorney General (Procuraduría General de la República) against the civil defendants, as well as what was resolved regarding costs (costas), and the remand of the proceeding to the competent court is ordered for the new processing of these points, on the basis that the act attributed by the civil and criminal plaintiffs to the defendants and civil co-defendants was not proven at trial.

**B)** The appeal filed by attorney Yamura Valenciano on behalf of defendant [Nombre001] is granted.

**B-1)** The case is declared time-barred (prescrita) for the crime of improper bribery in its modality of aggravated corruption that was being attributed to the defendant [Nombre001], and he is acquitted of all penalty and responsibility for this crime.

**B-2)** The judgment is partially annulled only insofar as [Nombre001] is sentenced to ten years in prison for the crime of Simulation Fraud (Fraude de Simulación) and regarding the determination of the amount defrauded in accordance with the relationship between Articles 218 and 216 of the Penal Code, for the purpose of establishing the punitive parameters within which the quantum of the penalty will be set. The remand of the case is ordered so that these two points are discussed: the amount defrauded is established according to procedural rules and according to this amount, the minimum and maximum extent of the penalty to be imposed is established, and a reasoned justification of the penalty is made in accordance with constitutional requirements and Article 71 of the Penal Code.

**B-3)** The judgment on the Simulation Fraud (Fraude de Simulación) remains unchanged in all other aspects, especially regarding the acquittal issued in favor of [Nombre001] for one crime of Simulation Fraud (Fraude de Simulación) in relation to the transfer of the property registered with Registration No. [Valor017], Sub-registration [Valor018], by means of deed No. [Valor019] executed before Notary Public [Nombre025] to the detriment of the Instituto Costarricense de Electricidad and of Collective and Diffuse Interests.

**C)** The appeal filed by attorney Yamura Valenciano on behalf of defendant [Nombre004] is granted. The case is declared time-barred (prescrita) for the crime of improper bribery in its modality of aggravated corruption that was being attributed to the defendant [Nombre004], and he is acquitted of all penalty and responsibility for this crime.

**D)** The appeals filed by attorneys Nazira Merayo and Wilson Flores on behalf of defendant [Nombre007] are granted.

**D-1)** The criminal action is declared extinguished due to the statute of limitations (prescripción) having taken effect; by virtue of the nullity of documentary evidence No. 588, the nullity of the criminal conviction judgment issued against [Nombre007] is also declared and in its place he is directly acquitted of all penalty and responsibility. The challenged judgment remains unchanged insofar as it acquitted him of two crimes of Illicit Enrichment.

**D-2)** Regarding the forfeiture (comiso) of the Suzuki Grand Vitara XL vehicle, plate No. [Valor032], a consequence of the punishable act, it is appropriate to grant the ground of challenge, order the annulment of the forfeiture (comiso), and the return of the vehicle to the person from whom it was seized.

**D-3)** Regarding the matter of personal legal costs (costas personales) in the sum of 10 million colones to which the defendant [Nombre007] was sentenced, to pay for the legal representation carried out by the public defenders, this is declared null and a remand is ordered for its correct determination in this regard.

**D-4)** Due to the manner in which the appeals filed have been resolved, it is unnecessary to rule on the other claims raised by appellants Merayo and Flores regarding the criminal action in their appeal briefs, since their corresponding claims have been addressed.

**E)** The appeal filed by attorney Mario Navarro on behalf of the co-defendant [Nombre009] is granted.

**E-1)** By virtue of the nullity of documentary evidence No. 588, the nullity of the criminal conviction judgment issued against [Nombre009] is also declared and in its place he is directly acquitted of all penalty and responsibility.

**E-2)** Regarding the forfeiture (comiso) of the properties of the Heredia Registry registered under the Real Folio System, Registration No. [Valor025], Sub-registration [Valor018] in the name of the company Punto de Negocios LQC Sociedad Anónima, a company belonging to the defendant [Nombre009]; as well as the shares of [Nombre009] in the company La Selva de La Marina S.A., owner, among others, of the properties registered in the Public Registry under the Real Folio System Registration No. [Valor030], Sub-registration [Valor018], and Registration No. [Valor031], Sub-registration [Valor018]. In this regard, it is appropriate to order the competent court to return the forfeited properties and shares.

**E-3)** Due to the manner in which the appeals filed have been resolved, it is unnecessary to rule on the other claims raised by attorney Navarro regarding the criminal action in his appeal briefs, since his corresponding claims have been addressed.

**E-4)** By the extensive effect of the ruling granting attorney Christian Arguedas's appeal, and because his challenges do not have a personal character, the decision favors all the civil co-defendants; the judgment is annulled in its civil aspect, insofar as it ordered to omit a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Office of the Attorney General (Procuraduría General de la República) against the civil defendants, as well as what was resolved regarding costs (costas), and the remand of the proceeding to the competent court is ordered for the new processing of these points.

**F)** The appeals filed by attorneys Federico Morales and Erick Ramos on behalf of defendant [Nombre015] are granted; the criminal action is declared extinguished due to the statute of limitations (prescripción) having taken effect; by virtue of the nullity of documentary evidence No.

588, the nullity is also declared of the criminal conviction judgment issued against [Nombre015] and in its place he is directly acquitted of all punishment and liability.

**F-1)** Given the manner in which the appeals filed have been resolved, it is unnecessary to rule on the other claims raised by appellants Ramos and Morales regarding the criminal action in their appeals, since their corresponding petitions have been addressed.

**G)** The appeal filed by [Nombre021] in his material defense is granted, the cause against him is declared prescribed, and in its place he is acquitted of all punishment and liability for the offense charged.

**G-1)** By virtue of the nullity of documentary evidence No. 588, the nullity is also declared of the criminal conviction judgment issued against [Nombre021] and in its place he is directly acquitted of all punishment and liability.

**G-3)** Regarding the ordered forfeiture (comiso) of CERTIFICATE NUMBER [Valor026] RENEWED ON [Valor027]. It is appropriate in this regard to annul the judgment and order the immediate return of the document to its legitimate owner.

**G-4)** Given the manner in which the appeals filed have been resolved, it is unnecessary to rule on the other claims raised by the accused regarding the criminal action in his appeals, since his corresponding petitions have been addressed.

**G-5)** Due to the extensive effect of the granting of the appeal by attorney Christian Arguedas, and because his challenges do not have a personal sense, the decision benefits all civil co-defendants; the judgment is annulled in its civil aspect, in that it ordered omission of a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as well as the decision regarding costs, and the remand of the process is ordered to the competent court for the new substantiation of those points.

**H)** Given that the criminal action against the accused [Nombre018] (R.I.P.) has been extinguished, pursuant to articles 30 subsection a) and 311 subsections d) and e) of the Código Procesal Penal, [Nombre018] (R.I.P.) is dismissed (sobresee) for a crime of PENALTY FOR THE CORRUPTER for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY (COHECHO IMPROPIO) regarding [Nombre027], as well as for a crime of PENALTY FOR THE CORRUPTER for PROPER BRIBERY (COHECHO PROPIO) in relation to [Nombre026], both to the detriment of PUBLIC PROBITY. By virtue of what has been resolved and for procedural economy, a ruling on the grounds of the appeal filed regarding the criminal liability of the accused [Nombre018] is omitted.

**H-1)** By extensive effect, the decision on the civil action for damages is annulled and remand is ordered for a new substantiation in accordance with the law. For procedural economy, an express ruling on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the points of the civil action for damages of interest.

**H-2)** The Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José is ordered to proceed with the cancellation of the first-degree mortgage on the property registered in the Registro Público de la Propiedad, Province of San José, number [Valor052], in favor of the Corte Suprema de Justicia, granted as a real bond (caución real) in favor of [Nombre018] (R.I.P.), for the sum of two hundred thousand dollars.

**I)** The appeal against the judgment filed by the Ministerio Público is denied.

**J)** The appeal filed by attorney Mario Gonzalo Soto Baltodano, president with faculties of generalísimo agent without limit of sum of JURISO, S.A., is granted. The forfeiture (comiso) of the vehicle make Suzuki Jimmy, license plate [Valor033] is annulled and remand is ordered on that point for a substantiation in accordance with the law, with the challenger here having to be summoned, so that he may have the opportunity to exercise the rights that correspond to him by law. By virtue of what has been resolved, a ruling on the other proposals made by the appellant is omitted, since the majority of them allude to substantive aspects that must be elucidated in the remand ordered here.

**K)** By extensive effect, 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; ordering remand for a new substantiation in accordance with the law regarding the civil action for damages filed on behalf of the Procuraduría General de la República. For procedural economy, an express ruling on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the points of the civil action for damages of interest.

**L)** By extensive effect, the appeal filed by attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, in their capacity as special judicial agents of the civil defendant Alcatel-Lucent France (formerly Alcatel Cit), is granted, ordering remand for a new substantiation in accordance with the Law on the civil action for damages and its costs. For procedural economy, an express ruling on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the points of the civil action for damages of interest.

**M)** By extensive effect, the appeal filed by attorney Mario Navarro Arias, special judicial agent of 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, is granted, ordering remand for a new substantiation in accordance with the Law on the civil action for damages and its costs. For procedural economy, an express ruling on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the remand already ordered regarding the points of the civil action for damages of interest.

**N)** The appeal filed by attorney Juan Luis Vargas Vargas, special judicial agent of [Nombre002], president, with generalísimo faculties without limit of sum of the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, is granted.

The ordered forfeiture (comiso) on the property registered in the Public Registry of Property, Guanacaste Section, under the Real Folio system, Matrícula [Valor022], Submatrícula [Valor018], is revoked.

**Ñ)** The immediate release of the accused [Nombre015], [Nombre009], and [Nombre001] is ordered, if no other cause prevents it. In the case of [Nombre001], by virtue of what has been resolved in this judgment, the conviction for the crime of Simulated Fraud (Fraude de Simulación) remains intact, and a remand (reenvío) has been ordered for a new substantiation regarding the matter of the value of the assets subject to said illicit act and the determination of the sentence. His release is ordered so that he remains in such condition pending the remand (reenvío) where these aspects will be discussed, given that the conditions of family, domiciliary, and employment ties allow for an assessment that he will remain attentive to the process awaiting the definition of the annulled aspects.

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Pública||art_id::63||art_num::62||bdt::1||norm_fecha::06 Oct 2004||tipo_norma::Ley||norm_ver::90841||norm_detalle::||norm_obser::||art_subnum::0" ], "html": "<html><head><meta http-equiv=\"Content-Type\" content=\"text/html; charset=utf-8\" /><meta http-equiv=\"Content-Style-Type\" content=\"text/css\" /><meta name=\"generator\" content=\"Aspose.Words for .NET 23.6.0\" /><title></title></head><body style=\"font-family:'Times New Roman'; font-size:12pt\"><div><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">“</span><span style=\"font-family:Arial; font-weight:bold\">II.- </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">SE RESUELVE EL RECURSO DEL DR. [Nombre1]</span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">.-</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> 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. [Nombre2] </span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">, 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 explicó a esta cámara durante la audiencia oral realizada entre los días 5 a 7 de noviembre de 2012 (cfr. registro audiovisual en DVD, archivos c000012110515000.vgz y c0000121105160000.vgz, desde 15:47:00 hasta 16:47:29).</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Durante este proceso, don [Nombre3]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">rechazó todos los cargos que se le hicieron, sostuvo que no son ciertos los hechos que le imputa el Ministerio Público.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> En el ejercicio de su derecho de defensa material –que a todo ser humano se debe reconocer y garantizar con igualdad–, don [Nombre3]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">explicó que el dinero que recibió de [Nombre4]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0;&#xa0;&#xa0; </span><span style=\"font-family:Arial; color:#010101\">tenía relación con un simple préstamo que aquel le hizo y que él ya le canceló mediante depósitos judiciales. </span><span style=\"font-family:Arial\">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. [Nombre5]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial\">hubiera realizado la conducta que le atribuyó en la acusación, ni tampoco que fuera falsa la defensa que él dio para justificar su conducta.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> 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.</span><span style=\"font-family:Arial; color:#010101\"> 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).</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> De conformidad con las leyes de la República, al no haberse demostrado la culpabilidad del Dr. [Nombre5] , 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</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> 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 [Nombre6], 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. </span><span style=\"font-family:Arial\">Aparte de alegar su inocencia don [Nombre3] </span><span style=\"font-family:Arial; color:#010101\">, 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. [Nombre5]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">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).</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Estos defectos que por sí solos implican la nulidad de todo lo resuelto se refieren,</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> 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. </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">A) Defectos en el proceso de determinación del hecho tenido por acreditado:</span><span style=\"font-family:Arial; font-weight:bold\"> </span><span style=\"font-family:Arial; color:#010101\">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.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold\">A.1.- Prueba espuria.</span><span style=\"font-family:Arial; font-weight:bold; color:#ff0000\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#ff0000\"> </span><span style=\"font-family:Arial\">La prueba que ha sido ilícitamente </span><span style=\"font-family:Arial; font-style:italic\">obtenida</span><span style=\"font-family:Arial\"> 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: “</span><span style=\"font-family:Arial; font-style:italic\">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</span><span style=\"font-family:Arial\">”.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> Según el artículo 180 de ese mismo texto legal, “</span><span style=\"font-family:Arial; font-style:italic\">El Ministerio Público y los tribunales tienen el deber de procurar por sí la averiguación de la verdad mediante los medios de prueba permitidos...</span><span style=\"font-family:Arial\">”, 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:</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial\">«</span><span style=\"font-family:Arial; font-style:italic\">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</span><span style=\"font-family:Arial\">»</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">Nuestra Sala Constitucional desarrolló con amplitud el derecho general a la legalidad, indicando que:</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial\">«</span><span style=\"font-family:Arial; font-style:italic\">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</span><span style=\"font-family:Arial\">.»</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial\">«</span><span style=\"font-family:Arial; font-style:italic\">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.</span><span style=\"font-family:Arial\">»</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial\">«</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">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</span><span style=\"font-family:Arial; font-style:italic\">, 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 </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">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</span><span style=\"font-family:Arial; font-style:italic\">.</span><span style=\"font-family:Arial\">» (el subrayado es suplido, Sala Constitucional, N° 1739-92 de las 11:45 horas del 1 de julio de 1992).</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">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).</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> Por otra parte, los hechos también se derivaron del testimonio del imputado [Nombre4]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial\">, pero este fue erróneamente analizado y valorado por el tribunal de juicio.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> 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.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">a.-</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\"> La ilicitud de la “prueba 588” que dio origen al caso denominado «Caja-Fischel» y al presente asunto.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> 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.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> 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)</span><span style=\"font-family:Arial; color:#008080\">.</span><span style=\"font-family:Arial; color:#008080\">&#xa0;</span><span style=\"font-family:Arial; color:#008080\"> </span><span style=\"font-family:Arial\">La prueba N° 588 es </span><span style=\"font-family:Arial; font-style:italic\">esencial</span><span style=\"font-family:Arial\"> en este asunto porque fue la que le permitió al Ministerio Público enterarse de la existencia de Servicios Notariales</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> 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.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">A partir de esa información y otras diligencias, el Ministerio Público y el Organismo de</span></p></div></body></html>", "htmlOrg": "<html><head><meta http-equiv=\"Content-Type\" content=\"text/html; charset=utf-8\" /><meta http-equiv=\"Content-Style-Type\" content=\"text/css\" /><meta name=\"generator\" content=\"Aspose.Words for .NET 23.6.0\" /><title></title></head><body style=\"font-family:'Times New Roman'; font-size:12pt\"><div><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">“</span><span style=\"font-family:Arial; font-weight:bold\">II.- </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">SE RESUELVE EL RECURSO DEL DR. [Nombre1]</span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">.-</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> 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. [Nombre2] </span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">, 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 explicó a esta cámara durante la audiencia oral realizada entre los días 5 a 7 de noviembre de 2012 (cfr. registro audiovisual en DVD, archivos c000012110515000.vgz y c0000121105160000.vgz, desde 15:47:00 hasta 16:47:29).</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Durante este proceso, don [Nombre3]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">rechazó todos los cargos que se le hicieron, sostuvo que no son ciertos los hechos que le imputa el Ministerio Público.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> En el ejercicio de su derecho de defensa material –que a todo ser humano se debe reconocer y garantizar con igualdad–, don [Nombre3]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">explicó que el dinero que recibió de [Nombre4]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0;&#xa0;&#xa0; </span><span style=\"font-family:Arial; color:#010101\">tenía relación con un simple préstamo que aquel le hizo y que él ya le canceló mediante depósitos judiciales. </span><span style=\"font-family:Arial\">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. [Nombre5]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial\">hubiera realizado la conducta que le atribuyó en la acusación, ni tampoco que fuera falsa la defensa que él dio para justificar su conducta.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> 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.</span><span style=\"font-family:Arial; color:#010101\"> 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).</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> De conformidad con las leyes de la República, al no haberse demostrado la culpabilidad del Dr. [Nombre5] , 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</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> 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 [Nombre6], 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. </span><span style=\"font-family:Arial\">Aparte de alegar su inocencia don [Nombre3] </span><span style=\"font-family:Arial; color:#010101\">, 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. [Nombre5]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">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).</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Estos defectos que por sí solos implican la nulidad de todo lo resuelto se refieren,</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> 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. </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline\">A) Defectos en el proceso de determinación del hecho tenido por acreditado:</span><span style=\"font-family:Arial; font-weight:bold\"> </span><span style=\"font-family:Arial; color:#010101\">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.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold\">A.1.- Prueba espuria.</span><span style=\"font-family:Arial; font-weight:bold; color:#ff0000\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#ff0000\"> </span><span style=\"font-family:Arial\">La prueba que ha sido ilícitamente </span><span style=\"font-family:Arial; font-style:italic\">obtenida</span><span style=\"font-family:Arial\"> 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: “</span><span style=\"font-family:Arial; font-style:italic\">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</span><span style=\"font-family:Arial\">”.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> Según el artículo 180 de ese mismo texto legal, “</span><span style=\"font-family:Arial; font-style:italic\">El Ministerio Público y los tribunales tienen el deber de procurar por sí la averiguación de la verdad mediante los medios de prueba permitidos...</span><span style=\"font-family:Arial\">”, 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:</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial\">«</span><span style=\"font-family:Arial; font-style:italic\">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</span><span style=\"font-family:Arial\">»</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">Nuestra Sala Constitucional desarrolló con amplitud el derecho general a la legalidad, indicando que:</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial\">«</span><span style=\"font-family:Arial; font-style:italic\">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</span><span style=\"font-family:Arial\">.»</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial\">«</span><span style=\"font-family:Arial; font-style:italic\">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.</span><span style=\"font-family:Arial\">»</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial\">«</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">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</span><span style=\"font-family:Arial; font-style:italic\">, 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 </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">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</span><span style=\"font-family:Arial; font-style:italic\">.</span><span style=\"font-family:Arial\">» (el subrayado es suplido, Sala Constitucional, N° 1739-92 de las 11:45 horas del 1 de julio de 1992).</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">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).</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> Por otra parte, los hechos también se derivaron del testimonio del imputado [Nombre4]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial\">, pero este fue erróneamente analizado y valorado por el tribunal de juicio.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> 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.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">a.-</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\"> La ilicitud de la “prueba 588” que dio origen al caso denominado «Caja-Fischel» y al presente asunto.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> 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.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> 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)</span><span style=\"font-family:Arial; color:#008080\">.</span><span style=\"font-family:Arial; color:#008080\">&#xa0;</span><span style=\"font-family:Arial; color:#008080\"> </span><span style=\"font-family:Arial\">La prueba N° 588 es </span><span style=\"font-family:Arial; font-style:italic\">esencial</span><span style=\"font-family:Arial\"> en este asunto porque fue la que le permitió al Ministerio Público enterarse de la existencia de Servicios Notariales</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> 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.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">A partir de esa información y otras diligencias, el Ministerio Público y el Organismo de</span></p></div></body></html>" }, "II.- THE APPEAL OF DR. [Nombre1] IS RESOLVED.- On October 15, 2004, while serving as Secretary General of the Organization of American States and enjoying the prerogatives inherent to that high office, Dr. [Nombre2], of his own free will, returned to our country to submit himself to the “natural judge” (juez natural), to face the facts of this criminal case for which he was being investigated, to collaborate with the inquiry into the real truth and thereby seek to make it clear that he is innocent, as he himself explained to this chamber during the oral hearing (audiencia oral) held from November 5 to 7, 2012 (cf. audiovisual record on DVD, files c000012110515000.vgz and c0000121105160000.vgz, from 15:47:00 to 16:47:29). During this proceeding, Mr. [Nombre3] rejected all the charges brought against him, maintaining that the facts alleged by the Public Prosecutor's Office (Ministerio Público) are not true. In the exercise of his right to a material defense (defensa material) –which must be recognized and guaranteed to every human being equally–, Mr. [Nombre3] explained that the money he received from [Nombre4] was related to a simple loan that the latter made to him and which he has already repaid through judicial deposits. After having comprehensively examined the conviction (sentencia condenatoria) handed down against him, it is clear to the judges signing this vote that the Public Prosecutor's Office was unable to demonstrate that Dr. [Nombre5] had carried out the conduct attributed to him in the accusation (acusación), nor that the defense he presented to justify his conduct was false. The conviction issued by the majority of the trial court (tribunal de juicio) is unsustainable from both a formal and substantive standpoint, due to its notorious lack of legal basis (fundamento) and criminal action (acción penal). Our current Constitución Política, in force since 1949, guarantees that no one shall be made to suffer a criminal penalty except through the necessary demonstration of their guilt (Article 39 of the Constitución Política). In accordance with the laws of the Republic, since the guilt of Dr. [Nombre5] has not been demonstrated, and his material defense has not been rebutted, the presumption of innocence (presunción de inocencia) remains intact, as guaranteed to every person accused of a crime by our Constitución Política and international human rights instruments, particularly Articles 11(1) of the Universal Declaration of Human Rights (UN General Assembly, December 10, 1948); 26, first paragraph, of the American Declaration of the Rights and Duties of Man (Ninth International American Conference, May 5, 1948); 14(1) of the International Covenant on Civil and Political Rights (approved by Ley N° 4229 of December 11, 1968); and 8(2) of the American Convention on Human Rights (known as the Pact of San [Nombre6], approved by Ley N° 4534 of February 23, 1970), which are norms of immediate and direct application to this matter and even have authority superior to that of laws, pursuant to Article 7 of our Constitución Política. Apart from pleading his innocence, Mr. [Nombre3], also in the legitimate exercise of his material defense, personally filed the appeals against the conviction described in the preceding Considering (Considerando) (I) of this resolution, in which he has denounced a great number of procedural and substantive errors (errores de forma y de fondo), some relating to the judgment (sentencia) and others to earlier stages of the proceeding. From the entire set of issues raised by Dr. [Nombre5] for the comprehensive review of the conviction issued by the majority of the trial court, it is evident that there are indeed some defects that render that majority decision null and void (nulidad) (whether these defects are considered independently or jointly). These defects, which by themselves imply the absolute nullity (nulidad) of everything decided, relate to the determination of the facts deemed proven (A); and that the criminal action (acción penal) has been extinguished because the statute of limitations (prescripción) has run (B), as explained below.

• A)Defects in the process of determining the facts deemed proven: First, procedural errors (errores de forma) are observed in the process followed for determining the facts deemed proven, because these were essentially derived from illegitimate evidence (prueba ilegítima) and because the analysis and assessment of the evidence violated the rules of sound criticism (sana crítica), rendering the judgment devoid of a legal basis that could reasonably justify it, a defect that violates Article 39 of the Constitución Política, according to which every criminal conviction is conditional upon a necessary demonstration of guilt.

A.1.- Spurious evidence (Prueba espuria). Evidence that has been illicitly obtained cannot be lawfully incorporated into the proceeding, according to the rule set forth in the first paragraph of Article 181 of the Código Procesal Penal, which clearly states: “Elements of proof shall only have value if they have been obtained by a lawful means and incorporated into the proceeding in accordance with the provisions of this Code.” According to Article 180 of that same legal text, “The Public Prosecutor's Office and the courts have the duty to seek, by themselves, the inquiry into the truth through the permitted means of proof...”, which must be understood in light of the general principle stated in Article 175 of that same legal body regarding defective procedural activity:

«Acts performed in disregard of the forms and conditions provided for in the Constitution, in International or Community Law in force in Costa Rica, and in this Code may not be assessed to support a judicial decision nor used as prerequisites for it, unless the defect has been cured, in accordance with the rules governing the correction of judicial actions.» Our Constitutional Chamber (Sala Constitucional) has extensively developed the general right to legality (legalidad), indicating that:

«Although the principle of legality (principio de legalidad) and the corresponding right of all persons to legality –and, of course, above all, to constitutional legality and legitimacy– seem to refer more to substantive than procedural issues, they nonetheless have important repercussions on due process (debido proceso), even in its strictly procedural sense.» «In the most general terms, the principle of legality in the rule of law postulates a special form of binding public authorities and institutions to the legal system, based on its basic definition according to which every public authority or institution is such and may only act insofar as it is empowered to do so by that same legal system, and normally by express provision –for public authorities and institutions, only what is constitutionally and legally authorized in an express manner is permitted, and everything not authorized is forbidden–; as well as its two most important corollaries, still within a general order: the principle of minimum regulation (principio de regulación mínima), which has special requirements in procedural matters, and the reservation of law (reserva de ley), which in this field is almost absolute. In our Constitución Política, the general principle of legality is enshrined in Article 11, and it also results from the context of this with Article 28, which embodies the general principle of freedom –for private persons– and guarantees the reservation of law to regulate it, and with Article 121, especially insofar as it grants the Legislative Assembly exclusive powers to legislate (subsections 1, 4, and 17), to create courts of justice and other public bodies (subsections 19 and 20), and to dispose of the collection, destination, and use of public funds (subsections 11, 13, and 15); powers that cannot be delegated nor, therefore, shared with any other power, organ, or entity (Article 9), and which generate even more explicit consequences such as those contained in the Ley General de la Administración Pública, mainly in its Articles 5 and 7 –which define the normative hierarchies–, 11 –which enshrines the principle of legality and its corollary of minimum regulation–, 19 and 59.1 –which reaffirm the principle of the reservation of law for the regime of fundamental rights and for the creation of public powers with external effect–. It must also be borne in mind that in Costa Rica such reservation of law is confined to the formal law emanating from the legislative body, because any delegation among public powers is constitutionally prohibited (Art. 9), thus making acts with the force of law unthinkable, at least in normal situations.» «It is by virtue of the presence of all these elements of the principle of legality that practically all procedural matter is reserved to formal law, that is, to norms emanating from the legislative body and through the procedures for the formation of laws, with the total exclusion of autonomous regulations and the almost total exclusion of executive regulations of the laws themselves; as well as that procedural law must be sufficient to discipline the exercise of the jurisdictional function and the activity of the parties before it, in such a way that no significant gaps remain to be filled by regulation or subjectively; and, finally, that the requirements of procedural law must have guaranteed efficacy, material and formal, to the point that in this matter, violations of mere legality automatically become, by virtue of the principle, violations of due process, and therefore of constitutional rank.» (emphasis supplied, Constitutional Chamber, No. 1739-92 at 11:45 a.m. on July 1, 1992).

However, the facts that the majority of the trial court deemed proven were essentially derived from two unsuitable sources: on the one hand, they were derived from illegitimate evidence (prueba ilegítima) –evidence that was illicitly obtained–, specifically the so-called “prueba 588” (documentary).

through Banco Cuscatlán de Costa Rica, of Cuscatlán International Bank or of the Cuscatlán Group, and in general all evidentiary activity originating in the constitutional violation related to Exhibit No. 588. The defense of the accused agrees that there is no independent source prior to the constitutional violation from which the evidence could have been obtained, and that it also could not have been inevitably discovered, meaning there is no possibility of excepting the exclusionary rule for illicit evidence. In contrast, the Public Prosecutor's Office considers that Exhibit No. 588 is lawful based on the consent of [Nombre7] for its use. The majority of the trial court considered that Exhibit 588 is lawful and dedicates a large part of Recital II of the judgment to justifying that criterion (in the section titled “Objections to Exhibit No. 588 and all banking documentation obtained from the ‘Caja-Fischel’ case brought to this proceeding and derived from said exhibit”), noting that in any case the same data derives from the statement of [Nombre7] (whom it considers the sole holder of the right to privacy of that banking information, who has consented to its use), this based on jurisprudential criteria from the Supreme Court of the United States of America (cf. judgment, pages 889 to 952). On the contrary, the dissenting vote of Judge [Nombre8] begins precisely with the analysis and assessment of Exhibit 588, which he considers was obtained illicitly and cannot be used to support the judgment, because it was obtained without a reasoned order from a judge (cf. judgment, dissenting vote, pages 1903 to 1943). He explains that the consent of the rights holder must be prior to the act, according to the doctrine of Professor [Nombre9] and the case law of the Criminal Cassation Chamber (votes No. 111 of 8:40 a.m. on March 26, 1993, and No. 604-2008 of 12:10 p.m. on May 23, 2008) and of the Criminal Appeals Tribunal (No. 308 of 5:00 p.m. on April 7, 2008), and warns that although one vote from the same Chamber appears to contradict this thesis and that the Public Prosecutor's Office invokes it in its favor, it is not a case that faithfully reflects the dominant criterion (specifically vote No. 232 of 5:00 p.m. on March 11, 2011, which was issued by substitute judges). He also clarifies that it is not possible to cure that defect through the subsequent consent of [Nombre10]:

“In the present matter it is evident that the consent of [Nombre7] is subsequent, and not prior to the infringement of the constitutional right to privacy, since approximately six years after the evidence was obtained illicitly, for lack of a judge’s order, as resolved by this Tribunal in a resolution at 8:00 a.m. on March 14, 2010, the Public Prosecutor's Office, knowing the criterion of this Tribunal, went before the alleged legal representative of the offended company (Marchwood Holding), Mr. [Nombre7], and asked him to consent that the evidence obtained illegally in Panama, concerning his represented company, could be used in this proceeding and to validate with his consent the manner in which it was obtained and the use given to it in procedural stages prior to the trial, to which Mr. [Nombre10] agreed, signing the document incorporated as documentary evidence No. 759, dated May 17, 2010, three days after the aforementioned resolution of this Tribunal. Said consent does not meet the minimum requirements to operate as a justification and eliminate the criminal character of the Public Prosecutor’s Office’s intervention. If said evidence were admitted, the State would be allowed to take advantage of actions by its officials—which could be criminal—to judge and criminally convict citizens, thereby losing all ethical legitimacy to impose a sanction.” (Judgment, page 1923).

Judge [Nombre8] links this issue with the case law of the Constitutional Chamber on the principles of breadth of evidence and legitimacy of evidence:

“a) The principle of breadth of evidence: Assuming that the purpose of the procedure is above all the real ascertainment of the facts, both the Public Prosecutor's Office and the judge have the duty to investigate that objective truth diligently, without disdaining any legitimate means of proof, especially if offered by the defense it is not manifestly impertinent, and even ordering for better provision whatever is necessary, even if offered irregularly or extemporaneously. In criminal matters, everything can be proven and by any legitimate means, which implies, of course, the absolute prohibition of using illegitimate evidentiary means and of giving them, if they exist in fact, any significance, formal or material.” “b) The principle of legitimacy of evidence: The latter raises, certainly, a difficult issue, which appears at the core of the case prompting this inquiry, namely, illegitimate evidence, its formal treatment and its assessment, an issue on which criminal and constitutional doctrine and case law have not yet reached a consensus. However, this Chamber has been adopting a position, if not unanimous, at least constant, based on the hypothetical suppression of spurious evidence, in the sense that, besides denying it all probative value in itself—on which there appears to be no discussion—it is to be suppressed from the proceeding, that is, it is to be supposed that it never existed and, therefore, other evidence that is not illegitimate per se is also invalidated insofar as it was obtained through its means. The differences between the majority and the minority of the Chamber have been more a matter of nuance and degree attributed to said principle of hypothetical suppression, so it can be said that this is the criterion supported by the erga omnes binding value of the precedents and case law of the Constitutional Jurisdiction, ordered by Article 13 of its Law—in this sense, see, among all, for example 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, among many others—.” (the underlining is not from the original, Constitutional Chamber, No. 1739-92 of 11:45 a.m. on July 1, 1992).

“This Chamber in its rulings has also indicated that inculpatory evidence cannot be assigned that sole purpose [to demonstrate with certainty the guilt of the accused], but also that of being a guarantee for the realization of a fair process, eliminating judicial arbitrariness, since the fundamental right of presumption of innocence requires, to be refuted, evidentiary activity obtained while respecting fundamental rights.” (Constitutional Chamber, No. [Telf1] of 2:38 p.m. on September 12, 2001).

“Within the different interpretations of the lawfulness or not of evidence, we have the theory of spurious evidence. The theory of spurious evidence or the theory of the fruits of the poisonous tree (fruit of the poisonous tree doctrine), which supposes that whenever an evidentiary means originating from a constitutional violation contributes elements of guilt for the accused, the act producing the evidence is null and void, as is any evidentiary means derived from it. In that same line of thought, we find the relative position, called the ‘independent source,’ according to which, if the evidence derives from an act violating constitutional guarantees, but also originated in another autonomous element gathered during the investigation and prior to the constitutional violation, the evidence remains valid, because that evidence stemmed from another element, and not necessarily from the act violating the Constitution. This Chamber, in vote 701-91, already expressed: ‘...the majority thesis of the Chamber regarding the validity of evidence related to illegitimate evidence can be synthesized by saying that the former preserves its validity as long as it does not have the illegitimate evidence as its origin,’ understanding then that the causal chain producing the evidence must be studied, being spurious and null that which comes exclusively from a violation of the Constitution.” (the underlining is not from the original, Constitutional Chamber, No. 02529-94, cited in No. 2005-04707 of 3:03 p.m. on April 27, 2005).

And it is in this manner that Judge [Nombre8] concludes that not only is Exhibit No. 588 null and void, but also all the other evidence that originates or derives exclusively from it, and that, applying the method of hypothetical suppression of the illicit evidence, the accused act must be considered unproven, since there are no other independent or autonomous elements of proof prior to the violation of the Political Constitution. Judge [Nombre8] explains that the very accusation of the Public Prosecutor’s Office corroborates that it is the evidence obtained in Panama, regarding Marchwood Holding, that enables the discovery of Servicios Notariales Q.C.S.A. (cf. accused act No. 190 on page 45), and adds:

“In the preceding act [No. 190, page 45] it is clear, and the Public Prosecutor’s Office itself so affirms, that it was the evidence obtained in Panama that led to the discovery of Servicios Notariales Q.C.S.A. and that said evidence was the basis for the news published by the media regarding Servicios Notariales Q.C.S.A., evidence which is precisely that declared illicit in this majority vote, further evidencing that there was a transfer of information from the Public Prosecutor’s Office to the media in flagrant violation of the duty of privacy provided for in numeral 295 of the Code of Criminal Procedure and Article 22, subsection 3, of the Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications [Law No. 7425], conduct which could constitute the crime of disclosure provided for in numeral 24 of the same Law.” (Judgment, page 1939).

Judge [Nombre8] also points out that from the statement of [Nombre7] it can be clearly established that on his part, regarding his alleged represented company Marchwood Holding, there was never a prior and express consent for obtaining documentary evidence No. 588, but rather that said authorization occurred several years after the evidence was obtained in Panama (cf. Judgment, pages 1939 to 1940). He then concludes that:

“…it is not possible to consider any act of the accusation as proven, because all the evidence gathered in the proceeding is illicit evidence, as the entirety of the investigation derives from one, or rather, from several constitutional violations in obtaining the evidence that guided the investigation from its genesis, and there being no possibility of excluding the application of the doctrine of the fruits of the poisonous tree, such as the independent source of the evidence or the inevitable discovery thereof, nor any other exception that precludes the application of the exclusionary rule for illicit evidence, according to which, evidence obtained directly from a constitutional violation must be excluded from the proceeding, as well as all that which derives indirectly from the illicit evidence, which in this proceeding is the entirety.” “The foregoing is sufficient reason to absolve all the accused of all penalty and responsibility, given the impossibility of establishing, with lawful evidence, any connection of the monies which, according to the accusation, they received with Servicios Notariales Q.C. and with Alcatel Cit.” The contested judgment was handed down on April 27, 2011, and a few days later the Criminal Cassation Chamber of the Supreme Court of Justice issued the judgment that resolved the cassation appeals that had been filed in the case known as “Caja-Fischel” (judicial file No. 04-005356-0042-PE). By a majority decision, Judges [Nombre11], [Nombre12] and [Nombre13] declared the nullity of all the evidence gathered in Panama through the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama (M.L.A.T.), as well as all evidentiary elements that depend directly on it (cf. Criminal Cassation Chamber, No. 499 of 11:45 a.m. on May 11, 2011, pages 14004 to 14014, 14042 to 14043 and 14541 of file No. 04-005356-0042-PE, there is a dissenting vote by Judges [Nombre14] and [Nombre15]), which in our understanding definitively resolves the discussion on the legitimacy of this documentary evidence, in the same sense as expressed by Judge [Nombre8] and in the same manner as considered by this Court of Appeal. The Criminal Cassation Chamber states:

“Regarding the argument against the validity of the evidence from Panama: By a majority composed of Judges [Nombre16], [Nombre17] and [Nombre18], this part of the claim, also formulated through the second ground of appeal, is granted, decreeing the nullity of the evidence gathered in Panama through the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama (M.L.A.T.) and all the evidentiary elements that depend directly on it. To analyze the claim of the appellants, we must, first of all, go back to the origins of the reform of the Code of Criminal Procedure of 1996, which is inspired by respect for human rights, whether of the accused or the victim. Regarding the accused, which is the point under discussion, the principle of Innocence is established as a foundation, from which derives, among others, the need for a prior trial and that the process be that which the Code regulates, as also determined 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, treaties which, as they all refer to the fundamental rights of man, are and must be analyzed with primacy over any mutual legal assistance treaty between countries, thus Article 2 of the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Panama. Returning to the background of the Code of Criminal Procedure that governs us today, one of the fundamental aspects it takes up again is respect for Due Process and places special emphasis on the Inviolability of the Defense (Article 39 of the Political Constitution), for which reason we have affirmed, with great correctness, that the reform in question is nothing more than the constitutionalization of Criminal Procedural Law. Under this conception, the legislator considered that the investigation of criminal cases should be directed by the Public Prosecutor's Office, precisely for greater control over how evidence is brought into the process, in strict compliance with the Constitution and the law; in other words, the Public Prosecutor's Office, which is in charge of investigating crime, must direct the actions of investigative officers to bring into the process, through all lawful means at its disposal, the evidentiary elements; the foregoing implies the absolute prohibition of availing oneself of illegitimate means of proof to which, consequently, the Judge may not grant any formal or material significance, because the procedural system, under no circumstance, tolerates the sacrifice of constitutional guarantees that protect the citizen in favor of the search for truth in the criminal process (in this sense, the Judicial Investigation Agency, the Public Prosecutor's Office and the Judge must strictly adhere to the Constitution, International Human Rights Treaties, and the Law), because the legitimacy of the acts and their lawfulness become the only valid criterion to be taken into consideration by the judge in resolving a specific case; the contrary implies the obligation of the hierarchical superior to declare, even ex officio, the ineffectiveness of the procedural act. In the specific case, the evidentiary elements obtained in the Republic of Panama, although it is true, according to the internal laws of that country, in which, due to the constitutional status of the Public Prosecutor’s Office prior to the reform of the Code of Criminal Procedure of Panama in the year two thousand eight, it was granted the power to lift bank secrecy without jurisdictional authorization in the course of an investigation in that country, and therefore, as the appealed ruling indicates, in the procedure conducted in that country, there is no violation of internal Panamanian law, such that for that legal system, the evidence is obtained legally; there is a serious procedural defect from the outset, which occurs in Costa Rica, regarding the application of the Code of Criminal Procedure which requires the Public Prosecutor's Office to make the request for lifting bank secrecy to the Guarantee Judge, in order to request the Central Authority (pursuant to the Mutual Legal Assistance Treaty) for assistance to bring from that country evidence that implies violating the scope of privacy of accounts and private correspondence; this absolute procedural defect, in our view, has been overlooked by all the intervening authorities in case number 04-005356-042-PE, arguing that, since in Panama the Public Prosecutor's Office is empowered to perform the act, in our country the Public Prosecutor's Office may arrogate to itself the right to directly request the Central Authority (Office of the Attorney General of the Republic) to carry out the procedure, without the assessment of the Guarantee Judge being necessary; an interpretation that, in our view, can in no way be endorsed by those of us who have been appointed as the last instance to which the parties can resort in satisfaction and protection of the fundamental rights of their clients. It cannot be valid in our Democratic Rule of Law State that, for the sake of the swift completion of the prosecution of persons accused of the alleged commission of criminal acts, regardless of the person involved, the rights held by persons accused of committing a crime, from the very moment they are considered suspects of committing that criminal act, are arbitrarily and illegitimately trampled (by those who at that specific moment had the functional direction of the process in the Public Prosecutor's Office), with an erroneous interpretation of unlimited powers. It is clear that our democratic system, in its Legal System, has opted for the wise decision to leave it in the hands of the competent jurisdictional body to ensure the protection of fundamental rights (among which are the right to privacy, the secrecy of communications, and the inviolability of private documents), for this reason it authorizes, under exceptional and previously established circumstances, the cases in which they may be restricted, specifically for the knowledge of matters submitted to the Courts of Justice, in which the judge may order the lifting of that secrecy. In the present case, that jurisdictional assessment was required to request the Central Authority, pursuant to the cited treaty, to give the corresponding processing to the assistance request required by the Public Prosecutor's Office, to bring documentary evidence from Panamanian banks into the investigation; this is so because it must be the judge who weighs the necessity, utility, relevance and proportionality of the request made by the body in charge of the investigation. Here it is important to note that the interpretation given in this process by the Public Prosecutor's Office is erroneous, a body which, in our understanding, is the first that should be clear about its function and its investigative powers, to the extent conferred upon it by the Constitution and current Law, so as not to carry out an action that it should have known left aside the limits that the legal system imposes on it when it directly requested the Office of the Attorney General of the Republic to give the corresponding processing to the execution of a request for assistance to Panama, which should have been previously authorized by the Guarantee Judge, since it entailed violating fundamental rights of persons subject to process in our country and, as is known to each and every justice operator in Costa Rica, ordinary legislation requires that: a) the order be duly reasoned. b) If possible, the documents on which the decision is to be executed, the name of whoever holds them, and the place where they are located should be specified. c) It must be based on criminal activity, with a verified indication regarding its commission. All these aspects require prior weighing of the necessity, suitability and proportionality of the request that the Public Prosecutor's Office should have brought to the knowledge of the jurisdictional authority; it would be a gross error to conclude, as the lower court does and the minority criterion of this Chamber endorses, that this implies giving an order to the Panamanian authorities; quite the contrary, it constitutes the endorsement of the jurisdictional authority of Costa Rica so that the Central Authority of our country, pursuant to the repeatedly cited treaty, could proceed as stipulated before the competent authority of Panama. The foregoing is not a mere formality; it constitutes the procedural act that legitimizes, according to the internal legal order, the intrusion ordered into the private sphere of a person, because it is not the role, nor the power of the Attorney General, nor of the representatives of the Public Prosecutor’s Office, to request and obtain confidential information about persons without prior authorization from the Judge who guarantees respect for the fundamental rights of citizens subjected to process. This is concluded from the provisions of Articles 24 of the Political Constitution, 12 of the Universal Declaration of Human Rights, 11, subsections 2 and 3 of the American Convention on Human Rights, and 17 of the International Covenant on Civil and Political Rights, all embodied in Articles 2 and 3 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications, No. 7425 (a law that even criminally sanctions its non-compliance) and 107 of the Organic Law of the Judicial Branch.

The power granted to the Public Prosecutor's Office by the Criminal Procedure Code, in its Articles 226 and 290, final paragraph, to request reports from private individuals or public entities, in accordance with the stipulations, is valid only insofar as it does not involve private information, protected by Article 24 of the Political Constitution; otherwise, according to the second paragraph of Article 181 of the CPP, it implies a violation of Due Process, due to the infringement of the fundamental right to privacy of private documents. The Mutual Legal Assistance Treaty aims to strengthen and facilitate cooperation among the justice administration bodies of the region, through an instrument that allows assistance in criminal matters, but it is clear that this must be done with full respect for the internal legislation of each member State; what it replaces is the cumbersome consular procedure to streamline communication channels. In no way can its content have repercussions on the system of guarantees applicable in the country, so much so that, in its preamble, it expressly establishes that such assistance is provided with full respect for the internal legislation of each State. As mentioned at the beginning of this vote, the possibility of streamlining procedures cannot become an open invitation to arbitrariness, arrogance, and disrespect for constitutional guarantees and the current internal order. It is not legitimate that, as happened in this case, representatives of the Public Prosecutor's Office even travel to another country to be present during the collection of evidence, yet do not take the minimum time to correctly file the request before the corresponding jurisdictional authority, thereby sacrificing essential evidence for the resolution of the case brought before the Costa Rican courts, as the act carried out in violation of Due Process must be declared ineffective; an act that also entails time and money that all Costa Ricans must also pay. On previous occasions, this Chamber has declared the ineffectiveness of procedural acts in similar cases where the Public Prosecutor's Office, in carrying them out, has acted contrary to the law, with very unfortunate consequences for the correct administration of justice, and in this regard, as noted at the outset, regardless of the person subject to the proceedings, the law is equal for all and consequently, it is not about achieving a conviction at all costs, but rather one that results from the correct introduction of evidence into the process, 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 criticism. In this way, the accusing body must be the first party interested in presenting a case to the jurisdictional body, not only with the possibility of making its thesis prevail in the adversarial debate because it possesses sufficient evidence, but also ensuring that this evidence is effective because its collection has respected the constitutional guarantees that protect the person subject to proceedings. On this subject, doctrine has held: “…</span><span style="font-family:Arial; font-style:italic">In our environment, the constitutional structuring of procedural rules has always been under discussion. Thus, for example, information obtained in violation of constitutional guarantees cannot be used; therefore, Article 96 of the NCPP conditions the validity of the act on respect for the fundamental rights of the person, except “if it favors the accused” (Art 181 NCPP). The doctrinal current is maintained, which orders that this type of irregularity is not susceptible to convalidation in accordance with Article 178 NCPP and must be declared ex officio by the Judge, provided they imply non-observance of rights and guarantees not only in the Constitution but also in current International or Community Law</span><span style="font-family:Arial">.” (ARMIJO SANCHO, Gilberth, Garantías Constitucionales, Prueba Ilícita y Transición al Nuevo Código Procesal Penal. Annual Award. [Nombre19]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, page 127). Consistent with this position, national jurisprudence has leaned towards the doctrine of “</span><span style="font-family:Arial; font-style:italic">the fruits of the poisonous tree</span><span style="font-family:Arial">,” meaning that evidence obtained as a result of an illicit one has no probative value. It is important to reaffirm that, despite the supra-legal rank held by the TALM, it does not place it above the Political Constitution, given that this condition is only achieved by Human Rights treaties (Article 48 of the Political Constitution). In conclusion, the collection of the evidentiary elements that were brought into the criminal process against, [Nombre7]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, [Nombre20]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, [Nombre21]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">[Nombre22], [Nombre23]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">, [Nombre24]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0;&#xa0; </span><span style="font-family:Arial">known as [Nombre25]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">and [Nombre26]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, through the letters rogatory to Panama and their amplifications, without observing the constitutional and legal guarantees that must govern their collection in accordance with the internal order of Costa Rica, constitute spurious evidentiary elements, illegitimately incorporated into the process. Through a defective procedural act of an absolute nature, their ineffectiveness is declared, as well as that of the other evidentiary elements derived directly from them, specifically: the documentary evidence obtained through the Letters Rogatory to Panama and their amplifications, the investigative statement of [Nombre7]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, insofar as it is based on the evidence from Panama; the testimonies of [Nombre27] .</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, Panamanian Prosecutor, [Nombre28]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">, Panamanian Prosecutor's Office assistant, [Nombre29]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">, Director of the Office of Execution of the Legal Assistance Treaty, all witnesses who refer to the evidence whose ineffectiveness is declared regarding the content and method of collection; the OIJ Report, No. 200- DEF-495-04-06, insofar as it refers to the evidence from Panama; the statement of the experts from the Judicial Investigation Agency, [Nombre30]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">and [Nombre31]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">in what corresponds to the reference evidence. Finally, it is appropriate to analyze the </span><span style="font-family:Arial; font-weight:bold">convalidation that the lower court carried out on all the evidence based on the letters rogatory to Panama and their amplifications, in hearing number 156 of the trial, with the Court basing its decision on the “authorization” given by the accused [Nombre7]</span><span style="font-family:Arial; font-weight:bold; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; font-weight:bold">when rendering his investigative statement</span><span style="font-family:Arial">; which is absolutely illegal. Firstly, because since there are several accused persons who raise the Defective Procedural Activity claim, as their fundamental rights have been affected because the procedural act through which the evidence was obtained did not observe Due Process, the fact that Mr. [Nombre10] himself withdraws his claim for Defective Procedural Activity, an action also carried out by his technical defense, cannot convalidate an act that affects other co-defendants in the case, whose fundamental right to privacy of their documents has been violated. The citation made in the minority vote of jurisprudence from this Chamber in no way corresponds to the issue raised here, because in that case, there was no injury to the fundamental rights of other implicated parties, and the evidence was only important for accrediting a fact between the person authorizing it and the victim. Added to the foregoing, the authorization that relieves the necessary intervention of the Judge is only valid insofar as it is given prior to the execution of the procedural act; in this sense, see the provisions in the first paragraph of Article 29 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications, No. 7425, a provision that must be harmonized with the provisions of Article 24 of the Political Constitution and Article 1 of the Criminal Procedure Code. In a second and extremely important aspect, Article 29 of the cited special Law expressly provides that authorization to examine banking documentation, when there are several account holders, must be given by all holders. It is accredited in the case file that the holders of account No. 104003074 of BAC INTERNATIONAL. BANK DE PANAMA ARE [Nombre7]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial">AND [Nombre32]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">; this constitutes the main account, as it is the one opened in Panama with the purpose of receiving, according to the appealed ruling, the monies paid by the company Instrumentarium Corp. Medko Medical, monies that are then transferred to their personal accounts Marchwood Holding, Harcourt Holding, Walka, and to the personal account of the co-defendant [Nombre20]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">, according to the evidence whose ineffectiveness is declared in the majority vote. The foregoing means that, although [Nombre33] had the representation, with the possibility of acting individually, this cannot be validly interpreted in contravention of the law, as the lower court does in the appealed resolution, because Article 29 of Law No. 7425 of August 9, 1994, expressly requires the authorization of all holders, and this is so precisely because that authorization implies intrusion into the sphere of intimacy of individuals and the privacy of documents, protected by the Political Constitution; hence, the provision made by one of its holders cannot infringe that right over the others. Consequently, the Court's decision to convalidate the defective procedural activity affecting the letters rogatory to Panama and their amplifications is an act that does not conform to the provisions of the law; therefore, it does not have the effect of convalidating the flawed act and in no way affects what has been stated about the declaration of ineffectiveness of all the evidence from Panama. The magistrates [Nombre34]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">and [Nombre35]</span><span style="font-family:Arial; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial">dissent.</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">If, according to the Chamber's precedent, that documentary evidence and its direct derivatives are null for that matter, they must necessarily also be null for the present case, which is derived from that one. It is worth adding that disregarding this Chamber precedent would lead to a contradiction that could eventually constitute grounds for cassation (Article 468, subsection a, of the Criminal Procedure Code). Thus, evidence 588 and all the evidentiary elements that directly depend on it are null. Once this documentary evidence is suppressed, only the statement of the cooperating accused [Nombre36] remains.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">b.- On the existence of a parallel and independent line of journalistic investigation.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> During the oral hearing, the Prosecutor's Office stated that it would take the opportunity to give "</span><span style="font-family:Arial; font-style:italic; color:#010101">complementary arguments to those raised in the judgment to uphold the legality of this evidence</span><span style="font-family:Arial; color:#010101">" (cfr. audiovisual record c0002121107132843.vgz, from 13:42:10 to 13:42:30) and insisted that not only is evidence item No. 588 lawful, but also that there is an uninterrupted, parallel, and independent line of journalistic investigation, which can also serve as a source of independent evidence to prove the fact that constitutes the object of this judicial process, according to the jurisprudence or doctrines of the Supreme Court of the United States of America.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> It refutes the opinion expressed by our Third Chamber in judgment No. 2011-499 (Caja-Fischel case) to maintain that Mr. [Nombre7]</span><span style="font-family:Arial; color:#010101; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial; color:#010101">is indeed entitled to authorize the use of evidence 588.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> This Chamber does not share the Prosecutor's Office's criterion.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> As stated in the previous section – to which we refer to avoid unnecessary reiteration –, evidence item No. 588 is unlawful, as are all the evidentiary elements deriving directly from it, according to the Political Constitution and the Costa Rican laws, which allow the matter to be resolved directly, as the Third Chamber of our Supreme Court of Justice did.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> Nor is the thesis acceptable that the judgment's reasoning can be "complemented" through this remedy or that the fact under proceedings can be independently derived from the journalistic investigation, for the following reasons.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> Firstly, because it is the trial court judges, not the prosecutors, who have the power to support the conviction. The Prosecutor's Office cannot complement or integrate reasons to supply the lack of reasoning of a judicial resolution that is being challenged (the judgment must be self-sufficient in terms of its reasoning).</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> Secondly, because in principle, one cannot presume that the manner in which the media obtains information protected by Article 24 of the Political Constitution is lawful, whether they have obtained it from a supposed "confidential source" or through means different from those prescribed by the Political Constitution and the laws of the Republic.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> Information in such a situation may perhaps be reported in their news stories or give rise to new lines of journalistic investigation (even as a legitimate exercise of the right to information) and thus foster valuable debates of public interest, but it definitively cannot be incorporated into criminal proceedings to support a conviction, because there is an insuperable limit imposed by Article 181 of the Criminal Procedure Code:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic; text-decoration:underline">Evidentiary elements shall only have value if they have been </span><span style="font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline">obtained</span><span style="font-family:Arial; font-style:italic; text-decoration:underline"> by a lawful means</span><span style="font-family:Arial; font-style:italic"> and incorporated into the procedure in accordance with the provisions of this Code.</span><span style="font-family:Arial">»</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">Unless it favors the accused,</span><span style="font-family:Arial; font-style:italic; text-decoration:underline"> information obtained through</span><span style="font-family:Arial; font-style:italic"> torture, mistreatment, coercion, threat, deceit, </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">undue intrusion into the privacy of the home, correspondence, communications, papers, and private archives, nor information obtained by any other means that impairs the will or violates the fundamental rights of individuals</span><span style="font-family:Arial">, shall not be used» (underlining supplied).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">Article 24 of the Political Constitution guarantees the right to privacy, freedom, and secrecy of communications, which includes bank secrecy.</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> In this regard, our Constitutional Chamber states that:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">In general, all banking activity involving contracts, applications, and any other type of relationship with private individuals - as clients - is, by its nature, protected by bank secrecy</span><span style="font-family:Arial">.-»</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">The operations carried out by private individuals with banks - as subjects of private law - constitute, both in their obtainment and in the form and manner of their constitution and service, private documents that are covered by the protection established in Article 24 of the Constitution - unless by their nature they must be recorded in public documents or public registries, from which, and without the bank's intervention, the information they contain could be obtained - and thus the bank cannot supply it except in the cases and in the manner provided for in that article</span><span style="font-family:Arial">.» (Constitutional Chamber, No. 578-92 of 10:45 a.m. on February 28, 1992).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">Article 615 of the Commercial Code provides that:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">Bank current accounts are inviolable and banks may only provide information about them upon request or with the written authorization of the owner, or by order of a competent judicial authority.</span><span style="font-family:Arial; font-style:italic">&#xa0;</span><span style="font-family:Arial; font-style:italic"> Excepted is the intervention that, in fulfillment of its duties determined by law, is carried out by the General Superintendency of Financial Entities, or the General Directorate of Taxation duly authorized for that purpose.</span><span style="font-family:Arial">»</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">The "Law on Registration, Seizure and Examination of Private Documents and Intervention of Communications" (Law No. 7425 of August 9, 1994) is the special legislation that – in compliance with Article 24 of the Political Constitution – establishes in which cases the Courts of Justice may order the seizure, registration, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their knowledge.</span><span style="font-family:Arial; color:#010101"> From a constitutional and legal standpoint, when it is absolutely indispensable to lift bank secrecy in order to clarify a matter submitted to the knowledge of a Criminal Court, that information </span><span style="font-family:Arial; font-style:italic; color:#010101">can only</span><span style="font-family:Arial; color:#010101"> be obtained by the Courts of Justice and necessarily in the manner prescribed by the law governing this matter. In any case, the alleged line of journalistic investigation is not even prior to and independent of the judicial assistance act from Panama that tainted evidence item No. 588, since all the news reports are subsequent to or expressly refer to the Prosecutor's Office investigation as a source of information.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold">A.2.- The statement of the accused [Nombre4]</span><span style="font-family:Arial; font-weight:bold; -aw-import:spaces">&#xa0;&#xa0; </span><span style="font-family:Arial; font-weight:bold">.</span><span style="font-family:Arial; font-weight:bold">&#xa0;</span><span style="font-family:Arial"> The participation attributed to Mr. [Nombre1] </span><span style="font-family:Arial; color:#010101; -aw-import:spaces">&#xa0; </span><span style="font-family:Arial; color:#010101">is derived by the court from the testimony of [Nombre36] .</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101">a.- General considerations on the assessment</span><span style="font-family:Arial; font-weight:bold; color:#010101">&#xa0;</span><span style="font-family:Arial; font-weight:bold; color:#010101"> of the statement made by a “cooperating accused”</span><span style="font-family:Arial; color:#010101">.</span><span style="font-family:Arial; color:#008080">&#xa0;</span><span style="font-family:Arial; color:#008080"> </span><span style="font-family:Arial">The principle of opportunity is an exception to the principle of legality, according to which it is the duty of the Public Prosecutor's Office to exercise the </span><span style="font-family:Arial; font-style:italic">public criminal action</span><span style="font-family:Arial"> in all cases where it is appropriate, in accordance with the provisions of the law.</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> In this sense, the principle of legality seeks to guarantee legal certainty and equality in the application of the law.</span><span style="font-family:Arial; color:#010101"> However, Article 22 CPP regulates a list of exceptions to this rule, which it calls "criteria of opportunity."</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> These are very specific cases in which, with the prior authorization of the hierarchical superior, the representative of the Public Prosecutor's Office may request that criminal prosecution be waived, totally or partially, that it be limited to one or several offenses or to some of the persons who participated in the act.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> Of these cases, we are interested in the one provided for in subsection b) of Article 22 CPP, which reads as follows:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">When it concerns matters of organized crime, violent criminality, serious crimes, or complex prosecution, and the accused collaborates effectively with the investigation, provides essential information to prevent the continuation of the crime or the perpetration of others, helps clarify the act under investigation or other connected acts, or provides useful information to prove the participation of other accused, provided that the collaborator's conduct is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents</span><span style="font-family:Arial">»</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span>&#xa0;</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">This hypothesis is called by some the "Crown Witness" for historical reasons (related to the origin and development of the institution in the Anglo-Saxon system, meaning the King's or Queen's witness); others refer to it in a more than imprecise, pejorative way, as a "repentant" witness, "informer," or "snitch."</span><span style="font-family:Arial">&#xa0;</span><span style="font-family:Arial"> Because Costa Rica is a Republic, where the dignity of individuals is respected (Articles 1 and 33 of the Political Constitution), we choose to refer to this subject as a "cooperating accused," which are the terms in which Article 22 CPP describes it.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> For the application of this exception to the principle of legality to be reasonably justified, the results indicated in the rule must be obtained (increasing the effectiveness of the investigation of the acts, preventing the continuation of the crime or the perpetration of others, obtaining useful information to prove the participation of other accused), while respecting a value judgment, namely, that obtaining these results regarding the punishable acts whose prosecution it facilitates (or whose continuation it prevents) is more valuable than the reproach that can be made to the collaborator for their conduct.</span><span style="font-family:Arial; color:#010101">&#xa0;</span><span style="font-family:Arial; color:#010101"> In other words, it must be more convenient to partially or totally waive the criminal prosecution against the cooperating accused if, through their collaboration, these benefits are achieved.</span> The figure itself has been heavily criticized because it breaks fundamental principles of a Rule-of-Law State (in this regard, LLOBET RODRÍGUEZ, Javier: *Proceso Penal Comentado*, 4th ed., San [Nombre6], Editorial Jurídica Continental, 2009, pages 110 to 113 and 119 to 124), to the point that it has been said that:

«...granting the Public Prosecutor's Office a discretionary power (pure opportunity or regulated opportunity) so that it may: 1) Either not bring criminal proceedings, even though it is aware of the existence of a fact with the appearance of a crime, meaning the proceeding never even begins, 2) Either request that a different or lesser penalty than that legally prescribed be imposed on the accused, despite being aware that the penalty established in the Penal Code is different or higher, and 3) Either conclude the proceeding without a conviction ever being handed down, and always despite the existence of a fact that is at least apparently constitutive of a crime, all of this must necessarily entail the perversion of the entire substantive criminal system.» «The most serious aspect of the matter is that all the effort of the criminal legislator, the political decisions adopted when criminalizing conduct and setting a penalty, can be rendered meaningless by virtue of a non-criminal norm that authorizes the Public Prosecutor's Office to dispose of the application of that criminal law in specific cases. If the norm establishing the principle of opportunity were to be classified as procedural, we would reach the contradiction that the entire Penal Code would be subject in its application to a criminal procedural norm, a single norm, by which all substantive criminal norms could be said to be emptied of content» (MONTERO [Nombre37], : *Principios del proceso penal*, Valencia, Tirant lo blanch, 1997, pages 78 to 79).

«The introduction of this figure, in Argentine criminal law, was not, nor is it, free from controversy. Important voices have risen against it, openly rejecting the possibility of the State entering into negotiations with those who perpetrate an unlawful act, whether for moral and constitutional reasons, or because of the delegitimization of the purposes of the State penalty that the agreement causes» (SCHIAVO, [Nombre38]: *La figura del ‘arrepentido’ en la Ley 23.737*, in http://new.pensamientopenal.com.ar/16102007/doctrina03.pdf).

In the case of the collaborating accused, it is less a matter of opportunity (understood as convenience) than of opportunism, in the second meaning of this word, “...which consists of taking maximum advantage of circumstances to obtain the greatest possible benefit, without regard for principles or convictions” (REAL ACADEMIA ESPAÑOLA: Diccionario de la Lengua Española, Madrid, 21st edition, 1992, page 1049), as it is in this area to make exceptions to the mandatory nature of exercising criminal proceedings.

«...The crown witness, called 'pentito' or repentant in Italian procedural legislation, is a dishonorable, dangerous, and immoral instrument, resorted to by the state in its fight against crime. The holder of the right of prosecution, which in our system is the Public Prosecutor's Office, does not realize that fighting against lawlessness using morally questionable resources becomes, in a certain way, legitimizing the conduct of those who place themselves outside the law. Evidently, it is an effective and powerful resource [...] However, this does not detract from the immoral character of the resource employed. The so-called criterion of opportunity is not such; it is an opportunistic criterion, not one of opportunity. The parties have no way of knowing whether the legal interests being negotiated are of a higher or lower rank than those being violated. The Public Prosecutor's Office wields this dangerous instrument at its whim and renders accounts of it only up to the trial itself. Is this not defenselessness? A few years ago, taking advantage of the presence of [Nombre39] in Costa Rica, I spoke with him in the company of the distinguished colleague Lic. [Nombre40]. Seizing the moment, I asked the illustrious Argentine academic and magistrate his opinion about this resource, which was just emerging as a possibility on the Costa Rican procedural horizon. [Nombre41] answered me what I had always thought: that a Rule-of-Law State cannot fight crime using the same resources it uses, that is, those that violate basic principles such as loyalty. The informer is odious everywhere, even if the result of their informing is axiologically acceptable...» (CASTELLON [Nombre42]., [Nombre43]: *El testigo de la corona*, in the newspaper La Prensa Libre, Thursday, April 29, 2010).

It is also an exception to the regime of prohibitions referring to the accused's statement, specifically in Article 96 of the Criminal Procedure Code, since there is no doubt that negotiating the application of this criterion of opportunity can be a way of inducing or determining the accused to “voluntarily” declare what interests the Public Prosecutor's Office. The third paragraph of Article 96 CPP (“The promise of an advantage shall only be admitted when it is specifically provided for in the law”) allows what the rest of the norm prohibits. An advantage not provided for in the law would be prohibited, because offering advantages to an accused in exchange for their confession or an informing is clearly irregular, since obtaining the benefit would be a factor that could condition or determine them to say “freely” what the Public Prosecutor's Office wants to hear them say in exchange for the advantage that, from an evident position of superiority, it offers them. This is the law, but it entails a normative dissonance. Even if the accused is made an offer authorized by Article 22 subsection b) CPP, the trial court cannot overlook that the accused has been truly tempted or manipulated by the advantage offered by the prosecuting party, that if they declare, they do not do so with a will as free and spontaneous as it seems, but rather conditioned by obtaining an advantage for themselves, in the face of the rigor of the penal system, such that the mere authorization of the law to agree on a criterion of opportunity does not exempt the court from the duty to be particularly careful when establishing the probative value of the statement given by the “collaborating witness” (as warned by judge [Nombre8] in his dissenting vote for the resolution at 1:30 p.m. on September 2, 2012, cf. Volume XXVIII, folios 13713 verso to 13714 verso). But if our legislator adopted this institute, it can be assumed that their purpose was to strengthen the *efficiency* of the system (cf. [Nombre44], : *El principio de oportunidad en el ejercicio de la acción penal*, in *Ciencias Penales*, Revista de la Asociación de Ciencias Penales de Costa Rica, San [Nombre6], Year 5, No. 7, July 1993, pages 63 to 69), not to favor impunity:

«In all these cases, it is a requirement that the fact whose prosecution is being waived be considerably less serious than those that the accused helps to investigate or to stop their continuation; the opposite would foster impunity for serious crimes, with which the application of the principle of opportunity would lose all meaning» ([Nombre45], [Nombre6] María: *Principio de Oportunidad*, in A.A.V.V.: Reflexiones sobre el nuevo proceso penal, San [Nombre6], Imprenta y Litografía Mundo Gráfico S.A., 1996, page 98).

The head of the Public Prosecutor's Office who authorizes the request is the one competent to assess the “opportunity,” convenience, and necessity of applying this criterion (Art. 22 CPP). In relation to the jurisdictional control of the application of criteria of opportunity, the Constitutional Chamber has ruled in the sense that:

«...the function of accusing in crimes of public prosecution is a function assigned by law to the Public Prosecutor's Office. Consequently, it is up to the Prosecutor to decide regarding the convenience of applying or not a criterion of opportunity [...] The judge's authorization excludes the performance of an analysis of the convenience or opportunity of the measure, given that they cannot substitute the decision of the prosecutor, who is in charge of bringing criminal proceedings...» (Constitutional Chamber, No. 2001-02662 at 3:30 p.m. on April 4, 2001).

But it is clear that the trial court is the one responsible for analyzing and assessing the evidence produced through this particular criterion of opportunity. The Third Chamber has indicated that because the criminal proceedings against the collaborating accused “...is suspended, contingent upon the outcome of the trial, the statement given by the 'crown' witness in trial against the other accused must be given in the capacity of accused and with respect for the guarantees that this entails” (Third Chamber, No. 476 at 10:02 a.m. on March 16, 2012).

The Constitutional Chamber has also established some criteria to be followed regarding the collaborating accused, and has done so precisely in relation to this specific case, in ruling No. 2009-12090 at 2:40 p.m. on July 31, 2009, which refers to an action of unconstitutionality brought by Mr. [Nombre2] against Articles 24, 297 subsection d) and 299 second paragraph of the Criminal Procedure Code:

«...the fact that there is no right to appeal the resolution approving the application of a criterion of opportunity for those appearing as accused in the same cause does not injure due process or the right of defense, given that the testimony given by the person to whom a criterion of opportunity has been applied will be assessed by the court, which must justify the credibility it grants or does not grant it, in relation to the rest of the evidence, and furthermore, it may be broadly challenged by the parties in trial. Likewise, the accused has the right to challenge the ruling if they believe that defects have occurred in the reasoning of the verdict or in the incorporation or assessment of evidence...» «...the possibility of waiving the bringing of criminal proceedings is provided for [...] provided that their conduct is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents. This evaluation of reprehensibility refers to culpability, in such a way that whoever collaborates must merit a judgment of reproach or of lesser culpability than the principal author against whom the collaboration is provided...» «...It is important to mention as a reference that the European Court of Human Rights, in a judgment of September 6, 1978, admitted the legitimacy of the crown witness or repentant. Subsequently, the same jurisdictional body determined, according to decisions of September 27, 1990, and November 20, 1989, that its admissibility should only be as a source of circumstantial evidence, that is, that the data or information it provides requires the backing of other means of evidence. It becomes a means of investigation subject to confirmation, direct or indirect, of the data or circumstances it has provided about the facts under investigation. These requirements do not detract from the legitimacy of the collaborator, according to the jurisprudence of the European Court of Human Rights» «...from a reading of the challenged Article 22 subsection b), it is clearly inferred that the criterion of opportunity for collaboration is applied to those participants whose actions are considered less reprehensible [...] it is also required that the accused collaborate efficiently with the investigation, provide essential information to prevent the continuation of the crime or the perpetration of others, help to clarify the fact under investigation or other related ones, or provide useful information to prove the participation of other accused persons; all this collaboration requires, as provided by the norm, that the collaborator's conduct be less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents. Reprehensibility has to do with the degree of culpability with which one acted, which cannot be determined a priori, but must necessarily be evaluated in each specific case...» It is important to note that in this ruling of the Constitutional Chamber, magistrates Calzada and [Nombre46] dissented, warning that:

«In our opinion, the 'criteria of opportunity' produce the unlawful effect of the total or partial renunciation of the ius puniendi regarding some infractions or certain persons who have participated in a fact that is presumably criminal. The inalienable nature of a first-order public power is irreconcilable with any criterion of opportunity or discretion – ultimately relative and subjective – in its exercise. Moreover, the fundamental charter presupposes a fundamental ethical and moral order, so much so that Article 28 of the Constitution prescribes that the principle of autonomy of will has morality as one of its limits. In our opinion, 'criteria of opportunity' can be, eventually, reprehensible from a universal moral point of view and from a minimum ethical-constitutional substratum, because they enable the criminal prosecution body to dispense with public criminal proceedings against certain persons or for certain facts. In another order of ideas, the principle of legality in criminal matters presupposes that the People, in whom the original power to legislate resides, delegate it to the Assembly by means of suffrage (Article 105 of the Constitution), so that it may classify certain conduct as unlawful and culpable, with the result that the criminal prosecution body, which lacks any democratic legitimacy, is not in a position to dispose, discretionally or conveniently, which conduct and which persons it pursues, even though the legislator, by delegation of the people, has previously deemed that they must be pursued. In sum, an organ that lacks mediate or immediate democratic legitimacy is not in a position to weigh what the public or general interest estimates should or should not be pursued. It must be taken into consideration that the basic or fundamental directives and policies of investigation, prosecution, and bringing criminal proceedings are established, primarily and above all, by the repressive legislation dictated by the Legislative Assembly by virtue of the power delegated to it by the people. This contradicts another fundamental principle of the constitutionality parameter enshrined in Article 129 of the Constitution, which precepts that 'Laws are binding' and that 'The law is not abrogated nor repealed except by a later one,' given that, despite the rule and binding nature of the law and the impossibility of repealing a law for a specific case, with the criteria of opportunity the law can be set aside for one or more facts and for specific persons. The foregoing argument demonstrates that the criteria of opportunity are incompatible with a correct and proper understanding of a Constitutional Rule-of-Law State, despite the multiple arguments of a doctrinal, sociological, or criminological nature that may support their establishment (e.g.

that the criminal justice system lacks the capacity to punish all conduct, the economy of resources in prosecution, the existence of insignificant conduct – petty offenses (delitos bagatela) – that should not be prosecuted, or that criminal prosecution has traditionally focused on conventional crime, bypassing [sic] non-conventional crimes, etc.). All of these doctrinal or meta-juridical arguments supporting prosecutorial discretion (criterios de oportunidad) cannot prevail—since they lack constitutional foundation—over the stated constitutional precepts, values, and principles. The partial or relative derogation of the principle of legality—inherent to the Constitutional State governed by the Rule of Law—through prosecutorial discretion, is of such magnitude that it inexorably requires a constitutional amendment to permit it, an extreme that our Constitution does not contemplate. Thus, by way of illustration, according to a systematic hermeneutic and keeping the case proportions, Article 180, paragraph 3, of the 1949 Constitution permits, in national Public Law, the derogation or displacement of the substantive and budgetary principle of legality by that of necessity, under qualified circumstances 'to satisfy urgent or unforeseen needs in cases of war, internal commotion, or public calamity.' Finally, it is necessary to point out that the legislative body, in the exercise of its legitimate sovereign power, has other political alternatives or options for achieving the goals sought by prosecutorial discretion, such as decriminalization or de-criminalization, increasing administrative offenses by rigorously demarcating the terrain of Criminal Law and Administrative Sanctioning Law, introducing suitable and expeditious tools to combat non-conventional crime, etc." **b.- Considerations on the analysis and assessment of the statement given by [Nombre36].** If [Nombre36] was granted prosecutorial discretion for utilitarian purposes, then that decision of the Public Prosecutor's Office (Ministerio Público) must be judged by its results or consequences. From this perspective, the following questions regarding the accused [Nombre36] must be asked: Did he collaborate effectively with the investigation of the act attributed to him?

Did he collaborate effectively in clarifying other crimes related to the one in whose case the prosecutorial discretion is being applied to him?

Did he provide essential information to prevent the crime from continuing or others from being perpetrated?

Did he help to clarify other connected acts?

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

Was the conduct of [Nombre36] less reprehensible than the acts whose prosecution he supposedly facilitated or whose continuation he prevents?

This Chamber considers that the answer to all of these questions is "No," since it is patently obvious that [Nombre36] did not even provide a reliable statement and that the majority of the court did not analyze or critically assess it, as was required for such a particular and supposedly essential deposition. Let us remember that [Nombre36] is the sole eyewitness to the alleged participation he attributes to [Nombre5], which entailed the need to have been cautious when analyzing and assessing his statement, as advised by scholars of this discipline who have reflected on this institution since the Enlightenment: "Some tribunals grant impunity (impunidad) to the accomplice of a serious crime who reveals the others. This expedient has its inconveniences [...] The inconveniences are that the Nation authorizes treason, detestable even among scoundrels; because crimes of valor are always less fatal to a society than those of baseness, since the former is infrequent, and with only a benevolent force directing it, it will conspire to the public good; but the latter is more common and contagious, and always concentrates on itself. Moreover, the tribunal makes visible its own uncertainty and the weakness of the law, which implores the aid of one who offends it..." (BECCARIA, [Nombre47]: *Of Crimes and Punishments*, Madrid, Alianza Editorial, 1997, pages 108 to 109).

In classical literature, one also finds well-founded objections regarding testimony about another's act given by an accused who confesses in whole or in part in exchange for an advantage, for example: "We repeat that whenever accusation in the generic sense of the accomplice is presented as a defense by the accused who accuses, the suspicion regarding the veracity of the latter is legitimate. From this it follows that this suspicion becomes excessive when impunity has been promised on condition that the accomplice's name is revealed, for the impulse to lie is so great that logic refuses to take into account a revelation of participants such as this, which has as its price the impunity of the one who makes it. But fortunately, this hypothesis of impunity as the price of revelation has lost much importance, since it has been proven to cause grave harm. The promise of impunity, instead of constituting a brake on crime through the distrust it creates among accomplices, is an incitement to crime, due to the security it gives each one of always having an open path to escape criminal justice. The promise of impunity, which is an immoral pact between the law and the delinquent, besides being a legal error, is a probative error, because, on the one hand, it incites crime and corrupts and disturbs society with the spectacle of the release of an unpunished delinquent, who is almost always not only the most guilty, but also the most perverse; and on the other, it subverts all probative criteria and produces in the accused's conscience, and by operation of law, a very powerful impulse toward false revelations" (FRAMARINO [Nombre48], Nicola: *Logic of Evidence in Criminal Matters*, Volume II, Editorial Temis, S.A., 2002, page 260).

At present, it is worth bringing up the observations of [Nombre49] and [Nombre50] on the figure of the collaborating witness. The former has warned that, as in the garantista (guarantee-based) model, the idea that the end of truth justifies any means is inverted, so that only the nature of the means guarantees the achievement of the end; from this derives the prohibition of any promise or direct or indirect pressure on the accused to induce them to repentance or collaboration with the accusation; and he cautions us that: "All criminal and procedural guarantees [...] are effectively altered by the negotiation between the parties or, worse still, between judge and accused having probation and punishment as its object: the retributive nexus between punishment and crime, since the punishment and its measure are made to depend on the accused's procedural conduct rather than on the gravity of the crime; the principle of strict legality, due to *the completely indeterminate and debatable character of the degree of reliability and relevance of the collaboration provided* and, therefore, of the prerequisites for the penalty reduction; the principle of materiality, given the eminently subjective character of the collaborationist attitude or, even worse, of the 'repentance' or 'dissociation' required of the accused, upon whom the accusatory burden of proof is also shifted; the principle of adversarial proceedings, due to the confusion of roles between the parties and the monologue character imposed on all procedural activity; the guarantees of defense and publicity, because the collaboration of the accused with the accusation requires a tête-à-tête between investigator and investigated that does not tolerate the presence of outside third parties and which, on the contrary, due to the unequal character of the relationship between the contractors, degrades into murky transfers of trust of the 'servant and master' type; finally, the principle of penal equality, given that only the guilty can collaborate, negotiate, and profit, and all the more so if they are seriously guilty, while the innocent or those with marginal responsibilities could not do the same and, knowing nothing of the crime and contributing no accusatory assistance, end up doubly penalized. Legality, jurisdictionality, non-derogability of the action and the trial, and unavailability of penal situations all vanish definitively in this unequal negotiation, leaving space for an entirely discretionary power that inevitably leads to arbitrariness" (underlining not in original, [Nombre51]: *Law and Reason: Theory of Penal Garantismo*, Editorial Trotta, Madrid, 1995, pages 608 to 609).

For his part, [Nombre52] warns with great clarity and precision of the risk that the figure of the collaborating witness entails for the ascertainment of truth: "...perhaps this is one of the points that, with the greatest force, reveals the presence of the *political* over the *legal*. So much so, that clear examples can be observed in European legislations that have been—albeit with diverse legislative techniques—'legalizing' the special, benevolent, and rewarding treatment of the figure of informants/repentant individuals/collaborators with justice, etc." "And, truly, I believe it can be affirmed, without fear of error or exaggeration, that it has been the *regulations* on 'repentant individuals' that would ultimately and most forcefully profoundly change the character of criminal legislation and its inspiring principles. Indeed, this was the legislative trend that upended the foundations of a criminal law *of the act*, *of the fact*, toward those of a criminal law *of the author*. Why is such a judgment made? Let us look at certain points, indispensable for threading together the process I am trying to describe." "In the first place, it must be pointed out that the *repentance* of the subject to be rewarded is not by any means the *spontaneous* repentance that has always existed in ordinary criminal legislations. Quite the contrary, it is a *calculated* repentance. And such a calculation is verified based on measuring the benefits—procedural, penological, or penitentiary—that the *repentant individual* believes they can obtain." "Put much more plainly: the goal is to achieve the *switch of sides* of the offender in exchange for a *judicial reward* or one negotiated judicially." "Likewise, and increasingly, the distortion of the law becomes more evident; the aim is then to *instrumentalize* the accused to later be able to use their confession—as privileged evidence—against their betrayed former associates." "It must also be said, in close relation to the foregoing, that the *repentant individual* tends—according to the degree of *repentance/informing/betrayal* they reach—to cease being an accused and pass into the category of *witness*." Of course, this is not an impartial witness, but one who is deeply interested.» «From this point on, it is evident that it will no longer be possible to know when he is telling the truth and when he is beginning to exaggerate, lie, or simply invent in order to obtain the benefits. And this is because his benefits become inversely proportional to the harm caused to the persons denounced; the rule is simple: the more harm he manages to inflict on his former colleagues, the more personal benefit he will achieve.» «One of the most outstanding consequences of this entire system is thus reached: the person who ends up serving a lesser sentence is not the one who commits fewer crimes, but the one who denounces more.» «It does not seem necessary to argue too much, after the commented notes, to conclude by affirming that a criminal system—substantive and procedural—inspired by the principles that have been described, constitutes a true weapon of political struggle that has ended up subverting the principles of a Criminal Law born in the liberal-enlightened tradition.» «A concrete and current example of everything being mentioned is a norm of the Spanish Criminal Code, when it provides that: "[...] the Judges and Tribunals, reasoning it in the judgment, may impose a penalty lower by one or two degrees than that indicated by law for the crime in question, when the subject has voluntarily abandoned his criminal activities and presents himself to the authorities confessing the acts in which he participated, and in addition, actively collaborates with them to prevent the commission of the crime or effectively assists in obtaining decisive evidence for the identification or capture of other responsible persons or to prevent the activity or development of armed bands, organizations, or terrorist groups to which he belonged or with which he collaborated» (the underlining is supplied, [Nombre53] , : Recorridos y posibles formas de la penalidad, Anthropos Editorial, 2005, pages 117 to 119).

Among the criticisms made by our academy of the "collaborating defendant (imputado colaborador)," is precisely the lack of reliability of his results:

«The main criticisms address the scarce credibility that the crown witness may have...» «The practice of the 1996 Code has been unclear; in the first place, 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 [Nombre6], Editorial Jurídica Continental, 2009, pages 122 and 123).

«...it has been said that the evidence obtained through this means deserves very little credit, as the case can easily arise of the subject who wants to involve others to safeguard his own situation, trying to be freed from his criminal liability. In the end, the legal benefit that the collaborator can obtain depends on the effectiveness of his contributions, so that these can be seriously conditioned by his own interests, not only procedural, but also economic and even publicity-related. But not only that, it is also feasible that the alleged collaborator seeks rather to confuse the authorities in charge of the investigation, supplying false data. Consider, for example, the manipulation that several defendants could do, simply by agreeing to offer a distorted collaboration, falsifying, for example, their information» «For some, when a defendant denounces others, affirming that they committed the act together with him or that they intend to commit more crimes, the authorities are obligated to act with the greatest prudence and caution, without despising that information, but granting it only the value that corresponds to a notitia criminis. If a defendant decides to reveal secrets that another would zealously guard, how many reasons can motivate that conduct? For this reason, it has been said, with all reason, that the system should establish all necessary guarantees to ensure the veracity of the data, confirming the information by other means.» «However, in many cases the collaborator's revelations are easily accepted as authentic indications of criminal responsibility, without the personality of the informant, the little credibility he deserves, or the preceding contradictory statements he may have made mattering. Although sometimes the collaborating defendant does not say everything he knows or does not assume all the responsibility that corresponds to him, it can happen that, due to an accommodating attitude, his revelations deserve much more credit than any exculpatory version offered by those who are denounced. In certain cases, this can lead to a lack of depth in police investigations and, in close relation to this, to a stagnation of investigative techniques.» «In these circumstances, procedural guarantees, the presumption of innocence, and the classic parameters of judicial investigation can be destroyed by the simple word of the collaborating defendant.» «...It must be taken into account, moreover, that the prosecution negotiates with subjects who could eventually continue to be part of the criminal organization or continue to associate with it, so it is feasible that they supply false information, whether with the aim of diverting the investigation, delaying it, or leading it to failure, possibly even giving rise to an unjust conviction, handed down against an innocent person» (the underlining is not from the original, [Nombre54] , [Nombre55]: Testigo de la Corona, in AAVV, Derecho Procesal Penal Costarricense, San [Nombre6], Asociación de Ciencias Penales de Costa Rica, 2007, pages 594 to 595 and 601).

In the same sense, regarding the "procedural frauds" that the collaborating defendant can foster and the problem of his evidentiary value, it is warned that:

«To the list of reproaches is added the risk that the Administration of Justice may be used by 'false repentant criminals', who with the aim of misleading the investigations, may compromise the dignity and security of persons who have no connection whatsoever with the crimes.» «It seems to be beyond any doubt that a criminal judgment can be validly sustained on the version supplied by a single witness, when the examination of his testimony in the specific case withstands the analysis of the rules of correct human understanding. If that is so, and the statement of a co-defendant against another has been admitted as a valid element of proof, it is worth questioning what the specific reproach is that is made to the figure regarding its evidentiary value. The basic objection consists of underlining that it is a declaration highly interested in harming the other accused persons, and obtaining in that way an advantage in the process brought against him» (the underlining is not from the original, [Nombre56] , [Nombre57]: 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 [Nombre6], Departamento de Publicaciones e Impresos del Poder Judicial, 2000, pages 299 and 301 to 302).

It is worth mentioning that Judge [Nombre8], in his dissenting vote, also explained that in the processing and granting of the opportunity criterion (criterio de oportunidad) to [Nombre4] there were violations of due process, he even warned of this previously, with abundant reasons, from when the ruling of 1:30 p.m. on September 2, 2010, was issued interlocutorily (cf. "Se rechazan las protestas por la actividad procesal defectuosa formuladas ante la comparecencia de [Nombre4] al debate sobre la base del criterio de oportunidad”, Volume XXVIII, folios 13676 to 13736), a ruling in which he also drafted a dissenting vote (emphasizing the need to guarantee jurisdictional control over the application of that institution to the co-defendants who did not benefit from that opportunity criterion) to which he refers and quotes literally in the present (cf. pages 1944 to 1988), adding to what he had said on that occasion that it is clear that necessary information was hidden from the criminal judge to resolve the request for application of the opportunity criterion. Judge [Nombre8] informs us that:

«The Public Prosecutor's Office made a request to the Criminal Judge hiding determining information to establish the lesser reprehensibility and the necessary proportionality analysis in the application of the opportunity criterion. The request for the opportunity criterion did not mention other conducts that could be criminal and that were confessed by [Nombre36] and that emerge from expert report 297-DEF, documentary evidence No. 598, such as "royalties" for $110,207.00 and $29,833.95 received from Cibertec S. A. and Empaques Asépticos S. A. (folio 38). In addition, money that [Nombre36] confessed to having received from the hands of [Nombre58] through check No. 121-6 from account No. 4723 of Banco de San [Nombre6], belonging to [Nombre58], related to the La Joya power generation project, supposedly receiving a total of $56,000.00. This last fact is recorded in the complaint provided by the Technical Defense of [Nombre2] as evidence when raising defective procedural activity against the opportunity criterion, interlocutorily, a complaint that gave rise to case No. 08-000032-615-PE. In said documentation, there is a request for dismissal of the case in which the prosecution lists all the facts denounced against [Nombre36] by co-defendant [Nombre2], admitting that they have been the subject of investigation, but requests the dismissal of the complaint, under the argument that the exercise of criminal action was suspended for [Nombre36] due to the application of an opportunity criterion and therefore the Attorney General has not incurred the crime of breach of duties. Based on said request, the complaint was dismissed. However, if the opportunity criterion file is analyzed, it will be easily determined that in the respective requests directed to the Criminal Judge and in the unfounded ruling that agrees to the opportunity criterion, none of the facts mentioned supra form part of said opportunity criterion, so the suspension of the criminal action that occurs as an effect of the application of numeral 22 subsection b) of the Criminal Procedure Code, could not reach those facts, which were not presented to the Criminal Judge so that he could assess, in an integral manner, the situation of [Nombre36], and determine if the application of the opportunity criterion being requested was proportional, and above all, the lesser reprehensibility of [Nombre36] in view of all the crimes for which the Public Prosecutor's Office had in mind to grant impunity to said co-defendant, but which it omitted to make known to the Criminal Judge in the respective request, with the result that the Criminal Judge applied the opportunity criterion solely and exclusively in relation to the facts included in the request, as he expressly indicated in the ruling, by pointing out in the "Por Tanto" that “(…) the exercise of the public criminal action is suspended in relation to the facts described in the first recital of this ruling” (ruling from folios 41 to 89 of the opportunity criterion file. The highlighting is supplied), so that the other facts to which reference has been made, for not having been described in the request for application of the opportunity criterion and therefore not forming part of the first recital of the ruling either, are and have always been outside the opportunity criterion and regarding them impunity has been granted to [Nombre36], allowing the criminal action to be extinguished by the statute of limitations, a situation that is evidently illegal and that the Public Prosecutor's Office has refused to correct, despite having been pointed out by co-defendant [Nombre5] in the mentioned complaint and by his Technical Defense at the trial, at the time of interposing defective procedural activity against the opportunity criterion. With the proceeding of the Public Prosecutor's Office, impunity has been granted to [Nombre36] by means of an opportunity criterion of fact and not of law, evading the necessary jurisdictional control that should mediate in this regard.» (Judgment, pages 1989 to 1990).

Judge [Nombre8] also informs us that in the negotiation of the opportunity criterion, possession by [Nombre36] of millionaire sums in dollars of supposedly illicit origin was legitimized, for having been supposedly received as gratuities (dádivas), disapplying and disregarding the legal provisions that establish that the destination of the proceeds of crime is and must be subject to confiscation, thus operating a legitimization of capital that allowed [Nombre36] to keep in his possession an important part of the money and goods acquired as a product of the gratuities, an economic benefit that Judge [Nombre8] estimates to be around two million four hundred thousand dollars ($ 2,400,000.oo) (cf. judgment, pages 1990 to 1991). In this way, Judge [Nombre8] indicates, the declaration of [Nombre36] was determined:

«The fundamental rights of [Nombre36] were also violated and particularly his condition as a person and the dignity associated with it were disregarded. By negotiating with him an opportunity criterion through illegal offers (economic benefit and absence of legal prerequisites for the granting of the opportunity criterion), he has been instrumentalized, he has been degraded to the condition of an object, and he has been used by the requesting organ of the State to achieve its unacceptable purposes, in a democratic judgment system, of achieving a conviction by resorting to means proscribed by law, the Political Constitution, and International Human Rights Law. The statement given by [Nombre36] and the formation of his will to do so, was determined in an openly illicit manner (art. 96 of the Criminal Procedure Code), so he has been used by the Public Prosecutor's Office to achieve its ends, without considering that at the end of this process, if legality prevails (minority criterion), [Nombre36] could always be subjected to trial, so a false expectation has been created for him and the principle of swift and complete justice has been violated against him.» «This being the case, the statement of [Nombre36] is illicit evidence and cannot and must not be assessed to base any ruling (art. 181 of the Criminal Procedure Code)...» The facts that are said to be accredited in relation to Mr. [Nombre2] are described in Recital III of the judgment, facts No. 84 to No. 114 (cf. Judgment, pages 995 to 1007). Facts No. 84 to No. 94 describe the supposed conversation that [Nombre36] and [Nombre5] had on the morning of December 4, 2000, at the latter's house, in which it is said that [Nombre36] told [Nombre5] about the proposal of a gratuity (dádiva) that [Nombre59] and [Nombre60] had made to him the day before at the "La Casona" restaurant, in exchange for taking the necessary actions as director of the ICE to promote the migration of TDMA technology to GSM technology, preventing the bidding process for the four hundred thousand lines from being aborted, and voting in favor of awarding said bid to the company Alcatel. It says there that [Nombre5] approved [Nombre36] accepting the proposal from the Alcatel officials and determined how the gratuity would be distributed between the two of them. These facts, according to the majority of the Tribunal as duly accredited, are those that are said to be constitutive of the crime attributed to [Nombre5], but the only direct evidence of that fact is the testimony of [Nombre36] (there is no independent element that corroborates the veracity of his statement). It is important to bring up what Judge [Nombre8] indicates to us in this regard:

«The specific configuration of the referred facts is sustained exclusively on the statement of [Nombre36], which, as already stated, is illicit evidence and if it were not, it would be insufficient in itself to demonstrate such facts, as constitutional and cassation jurisprudence have resolved.

In judgment 12090 of 2009, at 14:40 hours on July 31, 2009, the Constitutional Chamber, referring to the legitimacy of the crown witness, cites resolutions of the European Court of Human Rights in which it indicates that the admissibility of the crown witness must be as an indiciary source of evidence, such that the data or information provided requires the support of other means of proof. The Constitutional Chamber expressly stated: "It is important to mention as a reference that the European Court of Human Rights, in a judgment of September 6, 1978, admitted the legitimacy of the crown witness or repentant witness. Subsequently, the same jurisdictional instance determined, according to decisions of September 27, 1990, and November 20, 1989, that its admissibility must be only as an indiciary source of proof, that is, the data or information provided require the support of other means of proof. It becomes a means of investigation subject to confirmation, direct or indirect, of the data and circumstances it has provided about the facts under investigation. These requirements do not detract from the collaborator's legitimacy, according to the jurisprudence of the European Court of Human Rights." (The emphasis was supplied). This is exactly the position taken by the Third Chamber of the Supreme Court of Justice in judgment 136-2003, when referring to the statement of an accused who testified as a crown witness, denying it value by itself to accredit the narrated facts, expressly indicating the need to have evidence that corroborates his version. In this regard, the Third Chamber stated: "The only element considered by the judge is the statement of the co-accused [Name61], who gave the names of two other people as participants in the thefts, and describes the contribution of each one and the places where they negotiated the stolen objects. However, this version was not corroborated with other elements, except as it refers to the participation of the 'repentant witness,' since objects suitable for the commission of this type of crime, as well as stolen goods, were seized from him in the car. The only thing linking [Name62] to the accused acts is the statement of the co-accused, which is insufficient. [Name63] depends on the result of this case for a dismissal to be issued in his own."» «Since, as already indicated, the statement of [Name36] is illicit evidence, but furthermore it is the only evidence with which the Public Ministry intends to accredit the criminal acts attributed to [Name2], and even if it were licit evidence, it would not be sufficient to prove them, given the status of crown witness and the benefit he expects to obtain with his statement, requiring additional evidence to prove such facts, which is not available, for all of which reasons, the facts under comment were not demonstrated with any valid evidence.» (Judgment, pages 1993 to 1995).

Judge [Name8] adds that for these same reasons, the sole testimony of [Name36] also turns out to be insufficient to demonstrate the conduct attributed to the co-accused [Name64], [Name65], [Name66], [Name67], [Name68], [Name60] and [Name69] (cf. Judgment, pages 1996 to 1997). For this Chamber, it is criticizable that the MP chose to apply the opportunity criterion to [Name36], as it seems not to have achieved an accurate prognosis of the blameworthiness that could reasonably have been anticipated regarding each of the alleged agents before going to trial. It has been said that this lack of discrimination can lead to unacceptable situations such as, for example, that the perpetrator of a Homicide is favored with impunity in exchange for betraying the accomplices with his confession (the example is from LLOBET RODRÍGUEZ, Javier: Proceso Penal Comentado, 4th ed., San [Name6], Editorial Jurídica Continental, 2009, page 124). In this regard, the Third Chamber has indicated that:

«It is a requirement for the application of this criterion that the criminal action being waived be considerably less serious than the punishable acts whose prosecution it facilitates. This is so because, as previously indicated, the aim is not impunity [sic] with the application of the institute, but rather greater efficiency of the system. If negotiation were allowed for a person with greater participation or who has committed a more serious crime than the one intended to be pursued, there would be no proportion between the punishment imposed and the event left unsanctioned. If the acts are of the same gravity or participation, chance or arbitrariness would determine who would be tried and who would not. That is why the application of the criterion was established only for those cases in which the participation of the "repentant witness" is less than that of the person to be caught, in the case of the same act, or the crime less serious when it is a different one. In the present matter, the opportunity criterion should not have been applied, since both accused had identical participation, in the same act. According to the relation of proven facts, there were three people committing the thefts, dividing the functions in such a way that [V.Z.] and [M.A.] entered the houses and took the objects, while [E.Q.] drove the car in which they moved, waited for them outside the chosen homes, and then they left the place in that car. According to the evidence, they also traveled in the vehicle driven by [E.Q.] to sell the stolen objects, and they shared the profits among all of them. It is evident that the three accused are co-perpetrators in the illicit acts. The selection of one accused to be taken to trial, and of another to apply an opportunity criterion, was capricious and leads to arbitrariness and insecurity. The presupposition that the participation of the "repentant witness" be considerably lighter than that of the one intended to be pursued was not fulfilled» (the underlining is not from the original, Third Chamber, No. 2003-00136, 9:20 a.m., February 28, 2003).

The accused [Name36] did not maintain a coherent version throughout the process, so much so that the inquiry made to Dr. [Name5] was based on the first version that [Name36] maintained (according to which he incurred in the receipt of gifts without prior promise for an act fulfilled, with no other action by [Name5] than the receipt of gifts related to the money received by [Name36] from Alcatel), while the accusation and the debate were based on a different version and on which the accused was not questioned (according to which he received a corrupt proposal that he accepted and for that reason favored Alcatel in exchange for a subsequent gift, with prior participation by [Name5]). It is thus how Don [Name3] was not even notified or questioned about the supposed meeting in his house, in which he supposedly determined [Name36] to commit a crime, so that –as Mr. [Name70] reproaches– he was never notified of the conduct said to constitute the crime of instigation. The judgment affirms that [Name5] instigated [Name71], and that was not a known fact in the expediente at the time [Name1] declared, but rather eight months later, when [Name36] gives his second version of the facts. [Name36] himself recognizes that he changed his initial version in his trial statement, and tries to justify it:

«That night at the Public Ministry, I assumed my responsibility and said that the offer had been after the award, it was like self-justifying, I was so confused and disoriented, but it was obvious that this statement would not sustain itself on its own; that because the Prosecutor's Office said it couldn't be that way, that I should justify it, and that was when I clarified things, I said that the offer was not after the award but before» (Judgment, page 520).

«Yes, I said in that statement that I received the money or prize from Alcatel after the award by the board of directors, I think I gave that version on September 30, 2004, I don't remember if I consulted it with my lawyer. What I have is a legal veneer, but I have already explained here that the truth is different, I had already indicated that here, what I said here is the truth. I did not lie, but rather I simply tried to cover myself or self-protect at that moment, but later I clarified things. Alcatel offered me 1.5% or 2% [...] In that statement of September 30, I admitted my responsibility and gave a detailed description of them, in an eagerness to self-justify I indicated that the offering would materialize later, but then I was clarifying the point...» (Judgment, pages 543 to 544).

Then he changes his version to confess a supposed Aggravated Corruption by Improper Bribery, a statement that precisely would allow him to obtain an abbreviated procedure in May 2005. It is obvious that what he actually did was not "clarify the point" but substantially modify his version, for the benefit that an abbreviated procedure meant, which ultimately was not even materialized because, through the opportunity criterion, he was granted impunity in exchange for declaring his new version of the facts. As the two indicated versions cannot be true at the same time, at least one of them must have been false, so that we can affirm with certainty that he lied at some point to benefit himself, that in this way he hindered the investigation of the truth, for which reason the trial court should have been more suspicious when analyzing and evaluating his testimony. However, the majority overlooked this reality and trustingly estimated that [Name36] declared disinterestedly to collaborate with the Administration of Justice. The majority vote, on the one hand, avoids the problem concerning the inquiry of Don [Name3] by saying that the accused had to request to expand his first statement, to refer to these "other" facts, as if it were a burden of the accused to seek to be duly questioned. To pretend that the accused has the obligation to ascertain the fact he is accused of and know the evidence against him is [Name72]. The notification is part of due process (S-IV, No. 1739-92), the variation of the facts for which he is investigated compromises the right of defense of the accused, it is the duty of the Public Ministry to re-interrogate the accused by notifying him of the new facts attributed to him. On the other hand, the majority ignores the lack of coherence of the accused [Name36], avoids the difficulty arising from his evident inconsistency, and rather gives it the character of full proof, assigns him full credibility, a matter of great incidence for what the majority resolved, if it is considered that with respect to the greater part of the proven facts, there is no other element of proof that corroborates the sole word of [Name36]. There are reasons to reasonably suspect that [Name36] was varying his version throughout the process to obtain different procedural benefits (house arrest instead of pretrial detention, the possibility of agreeing to an abbreviated procedure, finally obtaining an opportunity principle). It is reasonable to suspect that he sought his impunity at all costs, even declaring against third parties (especially against [Name5]). His was an interested statement, for which reason the court necessarily had to be more suspicious and rigorously examine if there were other independent evidence that confirmed or corroborated the word of [Name36] on the matters of fact of criminal relevance.

[Name36] did not have to swear to tell the truth, he declared as an accused assisted by a defender, abstaining from declaring or answering the questions put to him, and his defender –seated at his side– even whispered in his ear before answering, as can be seen in the audiovisual record of the corresponding hearings of the debate. The majority itself records in its resolution that [Name36] abstained from answering questions formulated by the lawyers of the defendants [Name5], [Name73] and [Name74], but the judges say that this does not detract from the credibility of his account, either because they questioned him about self-incriminating facts (cf. Judgment, pages 1642 to 1643), a criterion that this Chamber does not accept as valid, because if the criminal actor has totally dispensed with the criminal prosecution against him, it is supposed to have been precisely so that he collaborates with the investigation of the real truth. On the other hand, even though [Name36] incurs in contradictions (which he attributes to "confusions") that the defense points out to demonstrate he is not reliable, the majority of the court chose to excuse him, as for example on page 1723:

«[Name36] refers that these were dates of emotional confusion for him and that is why he incurred the error of pointing out that the delivery was in cash, when the truth is that it was as he declared in the debate, that is, resorting to investment certificates of money belonging to his mother due to the blocking of funds from Alcatel deposited in the Saint Georges Bank. For this integration, the cited explanations are valid under the rules of logic and common experience due to the various bank movements made by [Name36] to proceed with the respective deliveries of money to [Name5], added to the fact that it has been corroborated, according to his oral statement and documentary proof, that the described amount was not delivered in cash but through 7 bearer certificates...» (Judgment, pages 1723 to 1724).

Finally, regarding the substance of his statement, regarding what [Name36] says happened, his statement is also not reliable, since he says he did not accept the offer until [Name5] gave his approval, this being so, he explains, because when they made the proposal to him he answered that he could not do it alone, what they asked for in exchange for the offered "prize," that he could not "direct the opinion of six colleagues on the board of directors" because it was "something very big [...] and that required a superior instance to my capabilities." He says that he assumed that he would have to have the promise of [Name75], that if Don [Name3] had said no, he would "abort the situation" (cf.

judgment, page 502), it later turns out that neither he nor [Name5] had to do *anything* to direct other members of the board of directors, according to what [Name36] himself says:

«*The award in favor of Alcatel was unanimous; if there was any member of the board of directors with a dissenting position, they did not make it public. No one presented an objection. My action to award the tender to Alcatel was to cast the vote; I was no more important than the rest of the directors, and therefore, if there was dissent, the interference of the President of the Republic was important, in the eventuality that the rest of the directors had a different course. I do not know if that eventuality occurred because that is up to the President*» (judgment, pages 539 to 540).

«*I don't know if he* [[Name75] [Name76]] *did something or didn't do something*» (sic, judgment, folio 548).

It is highly suspicious that he says he required the approval of [Name5] to achieve a result that ultimately occurred without requiring any "course direction" from him. There is no element of proof indicating that [Name5] helped in any way so that [Name36] could fulfill what the corruptors asked of him. All of this allows reasonable doubt as to whether the supposed participation that [Name36] attributes to [Name5] was real, since it is plausible to suppose that it could well be a false accusation, arranged to simulate the existence of a more reprehensible accused than himself, and thus be able to obtain the benefits derived from the opportunity criterion as an accused collaborator. One could even suppose that at the moment when [Name36] attempts to introduce the supposed participation of [Name5], the influence of the latter was already unnecessary. **c.- Conclusion.-** As we said before, the accused [Name4] is the sole eyewitness to the supposed form of participation that he attributes to [Name5] (having instigated or determined him to commit the crime of Aggravated Corruption in the modality of Improper Bribery) and his statement is the only direct proof of that supposed fact, which constitutes no less than the *core* of the accusation, a circumstance that underscores the need to have been cautious when analyzing and evaluating the credibility of his declaration, which – being a collaborating witness – needed to be confirmed or corroborated by independent elements of proof, not in secondary circumstances, but regarding the essential elements of his statement, a condition prescribed by constitutional jurisprudence itself that was not fulfilled in this matter. The sole circumstance that the supposed protagonists of the event – [Name77], [Name73], [Name36], and [Name5] – were in Costa Rica on December 3, 2000 (according to the study of their migratory movements, expense reports, and travel itineraries, performed by the majority of the trial court in the judgment, cf. pages 1685 to 1690, a section titled "*Corroboration of the statements of [Name36] regarding the meeting at La Casona and at the house of the accused [Name5]*"), which was the day that [Name36] says he spoke alone with [Name5] at his house, is not proof that corroborates that [Name5] "approved" that [Name36] accept the proposal of the Alcatel officials; it is an indication so ambiguous or equivocal that, by itself, it could simply be a coincidence. Nor could the supposed fact that circumstances made it urgent for [Name36] to carry out what his corruptors asked of him (cf. Judgment, pages 1691 to 1693) be considered an indication that [Name36] told the truth when attributing participation to [Name5]. Finally, the existence of documents that corroborate that [Name36] transferred money to [Name5] does not necessarily confirm that [Name71] told the truth, because they would also allow the defense of [Name5] to be corroborated, who explains that his cause is a personal loan that [Name36] made to him and that he accepted because he considered the fortune of the former to be legitimate. The absence of objective elements corroborating the statement of [Name36], regarding the approval and indications he says he received from [Name5], is evident. The majority of the trial court minimized the fact that the temptation to obtain impunity for one or more of his own acts could have driven the accused [Name36] to falsely accuse other people as participants, that his interest could have been strong enough to motivate him to deceive the Public Prosecutor's Office and the judges with lies, even slandering an innocent person by falsely pointing to them as a co-perpetrator or participant (accomplice or instigator) if that way he could minimize or evade his personal responsibility. The suspicion of mendacity of the collaborating accused regarding the act of another, the reason for his discredit, is a common theme in doctrine, and all the citations included in this section are to illustrate to the reader why it is considered that the collaborating accused is not a suitable witness (due to lacking the will to tell the truth and rather having the will to deceive). The very nature of the crimes attributed to [Name36] is an objective factor that allows reasonable suspicion of him, since if it is precisely affirmed that he deliberately breached the duties of the public office entrusted to him, debasing it as a means to act corruptly and enrich himself, one can assume he lacks the moral sense that a sincere repentance implies, especially when other objective factors concur, such as the high prison sentences that could be imposed on him, the magnitude of the economic damage caused, which together can motivate him to seek to denounce or even slander third parties if by doing so he mitigates the rigors of the penal system or obtains a procedural advantage as appreciable as impunity; plus the possibility of retaining through this avenue a large part of the money and assets acquired through the bribes received. And if to the above it is added that [Name36] has incurred in contradictions, that he has substantially and conveniently modified his version of the facts (which regarding the substance is also unreliable), one will understand why this chamber considers him unworthy of the credibility granted to him by the majority of the trial court. [Name36] did not act or declare sincerely and disinterestedly, nor did he do so "... *so that situations like his would serve as social reflection*" (Judgment, pages 1632 to 1633). The majority of the trial court considered that "*his statements are completely credible and disinterested*" (Judgment, page 1642), this assumption of the judges is not based on any objective element. On the contrary, the process of change evidenced in his version of the facts is an objective factor that allows one to reasonably suppose that he acted in a biased or selfish manner, motivated by his own interest or convenience.

**B) Extinction of the criminal action (statute of limitations).** In this matter, there was an erroneous application of the rules that refer to the regime of the statute of limitations for the criminal action. The statute of limitations is one of the causes of extinction of the criminal action (article 30, subsection e) of the CPP) and it is worth remembering that the Constitutional Chamber has referred to the nature of the institute of the statute of limitations in the following terms:

«*This Chamber has indicated on multiple occasions that the statute of limitations for the criminal action constitutes a procedural sanction for the inaction of the Administration of Justice, whose immediate objective is to guarantee legal certainty, both for the subjects involved in the case and for the community in general*» (Constitutional Chamber, No. 856-2001 of 3:18 p.m. on January 31, 2001).

Article 62 of the "Ley contra la corrupción y el enriquecimiento ilícito en la Función Pública" (Law No. 8422 of October 6, 2004, effective from its publication in La Gaceta No. 212 of October 29, 2004), reformed the regime of the statute of limitations for the criminal action for crimes against the duties of the public function, in the following terms:

«*Article 62.—* ***Statute of limitations for criminal liability*** *. The criminal action for crimes against the duties of the public function and those provided for in this Law shall prescribe in the manner established by applicable legislation; however, the following rules shall apply:* » «*a) Once the statute of limitations is interrupted, the time limits set forth in Article 31 of the Code of Criminal Procedure shall 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 criminal action may be interrupted by a declaration of illegality of the administrative function, whether active or omissive, or by the annulment of the administrative acts and contracts related to the corresponding crime, whether the ruling is made in judicial or administrative channels* .» It is obvious that subsection a) of Article 62 of Law No. 8422 introduced a significant exception to what is provided in the first paragraph of Article 33 of the Code of Criminal Procedure (reformed by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2001) as the legal effect of the interruption of the statute of limitations period:

«*Once the procedure has begun, the time limits provided in the prior article shall be reduced by half for their calculation, for the purpose of suspending or interrupting the statute of limitations*…» It has been discussed throughout the process whether subsection a) of Article 62 of Law No. 8422 is applicable to this matter, specifically whether once the statute of limitations is interrupted, the time limit set forth in Article 31 of the CPP runs again for a new period, *with or without any reduction*. This is a problem of application of the law over time, which is resolved by the direct application of two norms of our Political Constitution, namely, Articles 34 and 129, which read as follows:

«*Article 34.- No law shall have retroactive effect to the detriment of any person, or their acquired patrimonial rights or consolidated legal situations.* » «*Article 129.- Laws are binding and take effect from the day they designate; in the absence of this requirement, ten days after their publication in the Official Gazette.* » «*No one may plead ignorance of the law except in the cases that the law itself authorizes.* » «*The waiver of laws in general, and specifically those of public interest, has no efficacy.* » «*Acts and agreements against prohibitive laws shall be null, if the same laws do not provide otherwise.* » «*A law is not repealed or abolished except by a later one; disuse, custom, or practice to the contrary cannot be alleged against its observance. By way of referendum, the people may abolish or repeal it, in accordance with Article 105 of this Constitution.* » (This last paragraph thus reformed by Article 1, subsection d) of Law 8281 of May 28, 2002, published in La Gaceta No. 118 of June 20, 2002).

In accordance with these norms, Article 62 of Law No. 8422 cannot be given retroactive effect to the detriment of the accused, and it must be considered obligatory and take effect from the day that law designates, which is the day of its publication, occurring on October 29, 2004. By that date, the interruption of the statute of limitations period had already occurred in the case of Dr. [Name5], which was the first formal accusation of the facts (according to Article 33, subsection a) of the Code of Criminal Procedure); therefore, the statute of limitations period was reduced by half and began to run again starting from October 15, 2004 (the day the accused's preliminary statement was taken), because that is the effect provided for in the law in force at the time of the interrupting event. The initial statute of limitations period for the criminal action, in the case of Dr. [Name5], is five years (according to the relationship of Articles 31 and 32 of the Code of Criminal Procedure; 46, 74, 340, and 342 of the Penal Code, since the maximum penalty is five years, as he is accused of 'Instigation to the crime of Aggravated Corruption in the modality of Improper Bribery'). Once the procedure began, that period is reduced by half for its calculation for the purpose of suspending or interrupting the statute of limitations, and it was interrupted by the preliminary statement of October 15, 2004 (cf. Volume II, folios 552 to 558), causing a reduced period of half (that is, two years and six months) to begin running again, which elapsed without any cause of suspension of the criminal action intervening, and which was completed on April 15, 2007. The next interrupting act provided for in the law was the resolution that convenes the preliminary hearing for the first time (Article 33, subsection c) of the CPP), an event that did not happen until September 10, 2007 (by resolution of 1:30 p.m. on September 10, 2007, cf. Volume XX, folios 8452 to 8453), which is why the extinction of the criminal action by the statute of limitations did occur in the case of Dr. [Name5]. However, this chamber does not overlook that the final paragraph of 376 of the Code of Criminal Procedure indicates that:

«*When the application of the complex procedure is ordered during the preparatory or intermediate phases, the reduction of the statute of limitations term by half, provided in Article 33 of this Code, shall not apply*» (Thus added by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2001).

Nevertheless, it is not enough for the resolution ordering that the matter is one of complex processing to be issued during the preparatory or intermediate phases for the reduction of the statute of limitations term by half not to apply, since it is evident that it cannot be applied with retroactive effect to cases where a cause of interruption has already occurred that – for the benefit of the accused – reduced the term by half, as happened in this matter, because the resolution ordering that it is of complex processing was not issued until March 3, 2006 (by resolution of 3:00 p.m. on March 3, 2006, cf. Volume XVII, folios 7506 to 7566) and was confirmed by vote No. 403-06 of 1:30 p.m. on June 23, 2006, cf. Volume XVII, folios 7703 to 7707), since the issuance of that resolution cannot revoke or annul the legal effect that the law itself assigns to an interrupting act already completed. We must keep in mind that the rule is that resolutions are not executed during the period for appeal and while the appeal is being processed, unless there is a legal provision to the contrary (Article 444 CPP). The second paragraph of Article 379 of the CPP stresses that:

«*The Courts shall especially ensure that the application of the special rules* [of the procedure for complex processing matters] *does not distort the principles and guarantees provided in the Constitution, in International or Community Law in force in Costa Rica, and the law.* » If the resolution ordering that the matter is one of complex processing (having been issued during the preparatory or intermediate phases) is retroactively attributed the legal effect provided in the final paragraph of Article 376 CPP, the cited constitutional norms governing the application of the law over time and the very principle of legality provided in Article 1 of the CPP would be infringed, unjustly giving the Public Prosecutor's Office – and the court itself – the opportunity to evade that procedural sanction which is the statute of limitations for the criminal action.

Furthermore, there are Costa Rican legal works that analyze what the scope of the final paragraph of Article 376 is; this is the academic opinion of two recognized jurists (both former substitute magistrates of the Third Chamber, former judges of the Court of Criminal Cassation, and professors at the Faculty of Law of the University of Costa Rica) that were pointed out by the defense attorneys before the tribunal, specifically the following texts by Licenciada [Name78] and Dr. Javier Llobet Rodríguez. The first explains:

«*In concordance with this, we would have that if the process is declared of complex processing after the 'first formal accusation of the facts against the defendant in crimes of public action'*, an act that in accordance with numeral 33 subsection a) of the [Name79].

entails the interruption of the statute of limitations for the criminal action (prescripción de la acción penal), for a period reduced by half, <span style="font-family:Arial; font-style:italic; text-decoration:underline">this reduction must be applied, since at that moment the proceeding would not be of complex processing (tramitación compleja) but rather simple</span><span style="font-family:Arial; font-style:italic">.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> In summary, it is not appropriate to give retroactive effect to the aforementioned declaration of complex, for the purposes of the exception established regarding the statute of limitations for the criminal action, as this is connected to the performance of certain acts, which ultimately is what determines whether or not the reduction of the time to be considered for the criminal action to prescribe is applied, so that if the act interrupting the statute of limitations for the criminal action occurs under the validity of the declaration of complex processing of the proceeding, issued in the preparatory or intermediate stages, that reduction does not operate, and the full period must be counted from that point forward; </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">on the contrary, if the act that interrupts that statute of limitations occurred when the complex processing of the case had not been ordered, that is, when the proceeding was conducted according to the general, simple process, the reduced statute of limitations period must be applied</span><span style="font-family:Arial; font-style:italic">, which would be maintained</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> as long as no other act having the virtue of interrupting that statute of limitations occurs, which, if produced already under the authorization of complex processing, and, therefore, under the exception situation, would mean that the interruption period of the statute of limitations for the criminal action must be counted in full (not reduced by half) from that specific act onward</span><span style="font-family:Arial">» (the underlining is supplied, [Nombre80] , : </span><span style="font-family:Arial; font-style:italic">Procedure for matters of complex processing (Procedimiento para asuntos de tramitación compleja)</span><span style="font-family:Arial">, in A.A.V.V., Costa Rican Criminal Procedural Law, Volume II, Costa Rican Association of Criminal Sciences, 1st ed., San [Nombre6], 2007, pp. 923 to 924).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">For his part, regarding the third paragraph of Article 376 of the CPP, Dr. [Nombre81] comments as follows:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">This paragraph was introduced in the reform of Law 8146 of November 30, 2001.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic; text-decoration:underline">The correct approach is that the non-application of the reduction of the period cannot be applied retroactively, so that when a cause for interruption of the statute of limitations occurred before the declaration of complex processing, the period that continues to run is reduced by half.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> In that scenario, when a new cause for interruption of the statute of limitations occurs after the declaration of complex processing, then in that case the provision that the statute of limitations period is not reduced by half does operate, so that the period that runs from this interruption is full (on this, see: Cf. [Nombre82] . Procedure..., pp. 923-924)</span><span style="font-family:Arial">» (the underlining is supplied, LLOBET RODRÍGUEZ, Javier: </span><span style="font-family:Arial; font-style:italic">Commented Criminal Process</span><span style="font-family:Arial">, 4th ed., San [Nombre6], Editorial Jurídica Continental, 2009, p. 567).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">However, for the trial court, the declaration of complex processing does have, from the moment it becomes final (on June 23, 2006), the effect provided in the final paragraph of Article 376, that the reduction of the statute of limitations period by half, provided in Article 33, does not apply; it so resolved –unanimously– in its resolution of 8:00 a.m. on May 14, 2010 (cf. Volume XXVII, folios 13352 to 13408 verso). In said resolution, the following is stated:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">The last paragraph of numeral 376 of the Criminal Procedural Code was included by means of a reform operated by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2011, therefore it is and has been a valid norm for several years before the start of this process, which dates back to the end</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> of 2004 and before the defendants rendered their respective statements, all of which were given starting in October 2004. While it is true that in principle the reduction of the statute of limitations by half operated at the time the first act interrupting the statute of limitations occurred (statement of the defendants, pursuant to numeral 33 subsection a) of the Criminal Procedural Code), an opportunity in which the process, an opportunity in which the process was processed as ordinary, the fact is that the defendants have been aware since that very moment and since the cited procedural reform was published, in principle, that said reduction could be rendered ineffective if the process came to be processed as complex, since numeral 376 so established.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> Thus, the validity of the reducing effect of the statute of limitations period was always subject to the process continuing to be processed as ordinary and that it would be lost if the rules of complex processing were applied, unless, of course, the statute of limitations period had been completed before said event, because in such a case, all the circumstances that would extinguish the criminal action by statute of limitations, according to the rules of ordinary procedure, would have been configured, and it should be declared as such, insofar as the legal situation of the defendant became fully consolidated, without the application of complex processing being able to reverse said state of affairs, regarding which the subsequent resolution recognizing it has declaratory and not constitutive effects</span><span style="font-family:Arial">.»</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">Thus, the elimination of the reducing effect by half of the statute of limitations period in those cases whose ongoing statute of limitations period had not been completed at the time the declaration of complex processing became final, does not constitute any retroactive application of numeral 376 of the Criminal Procedural Code, nor of the judicial resolution that applies it, nor an affectation of the principle of legal certainty, because the defendants, from the beginning of the process, knew what to expect in that regard</span><span style="font-family:Arial">» (Volume XXVII, folio 13364).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">That reasoning contravenes the cited constitutional norms; its conclusion is fallacious, since the mere validity of the final paragraph of Article 376, since it was added by Law No. 8146 in 2001, does not imply that the defendants could foresee –much less that they had to accept or "expect"– that the court would give a retroactive interpretation and application to that norm to "reverse" the effect of an interrupting act completed before the resolution that</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> ordered that the matter be of complex processing was issued.</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> If the trial court itself admits that the statute of limitations for the criminal action "is a sanction for inertia in the processing and judging" (cf. Judgment, folio 788), it is not understandable how it opts for an interpretation that circumvents the meaning of that cause for extinction of the criminal action, giving the accuser and the court itself the possibility of "reversing" that effect so that the criminal action revives, so to speak, and by this means evade the procedural sanction.</span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">However, it is with that criterion that in that resolution of May 14, 2010, the case of each of the defendants was analyzed, resolving the following:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">Unanimously, the exceptions of statute of limitations formulated in favor of the accused [Nombre83]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">; [Nombre66]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">; [Nombre84]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">,</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> [Nombre69]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">, [Nombre64]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">, [Nombre60]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">and [Nombre68]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">are rejected.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> The exceptions of statute of limitations filed in favor of [Nombre85]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">and [Nombre2]</span><span style="font-family:Arial; font-style:italic; -aw-import:spaces"> </span><span style="font-family:Arial; font-style:italic">are reserved for the moment of the judgment.</span><span style="font-family:Arial">» (Volume XXVII, folio 13407 front and back). </span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">When issuing the judgment, the court resumes the topic in Considering II of the judgment, section A), titled "Exception of statute of limitations for the criminal action in favor of the defendants [Nombre86] , [Nombre74] , [Nombre87]</span><span style="font-family:Arial; -aw-import:spaces"> </span><span style="font-family:Arial">and [Nombre5] " and resolves with the same criterion (although this time by majority vote, since Judge [Nombre8]</span><span style="font-family:Arial; -aw-import:spaces"> </span><span style="font-family:Arial">saved his vote on this point), reiterating that it is not a retroactive application of the law, but rather "the immediate validity of a procedural stipulation in a criminal case in progress" pending resolution, making a convoluted argument that the principle of non-retroactivity only applies to substantive criminal law, not to procedural norms or institutes, such as the statute of limitations (cf. judgment, pages 786 to 800), an argument that in any case –for this chamber—does not justify or authorize disregarding the legal effect (immediate, it is worth saying) that the investigative statement (indagatoria) produced according to the legislation in force at the time that interrupting act occurred.</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> Judge [Nombre8] , as previously stated, saved his vote on this question, modifying the criterion he had previously shared with his colleagues in the resolution of May 14, 2010 (cf. dissenting vote, judgment, pages 1997 to 2012) and relies on jurisprudence that is pertinent to mention.</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> Firstly, he cites the Constitutional Chamber, according to which:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">Since the process is a sequence of singular acts previously regulated by law, the new legislation can perfectly govern the acts that are carried out after its entry into force, and the previous law governs the acts carried out under its formal validity, prior to its repeal, so that each act is valued according to the law in force at the time of its performance</span><span style="font-family:Arial">» (Constitutional Chamber, No. 4397-99 of 4:06 p.m. on June 8, 1999).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">He also mentions a judgment of the Court of Cassation, which properly refers to the application of Article 62 of Law No. 8422, and says:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">Such norm is effective only from its entry into force for cases in which any of the interrupting acts that the procedural regulations provide for occurs, and provided that the term had not already been reduced previously as was provided, since the actions are governed by the procedural law that is in force at the time they occur and not by those that had already occurred.</span><span style="font-family:Arial; font-style:italic"> </span><span style="font-family:Arial; font-style:italic"> In other words, the entirety of the statute of limitations period could not be restored based on a norm that was not yet in force at the time when, according to the legislation that did govern, a cause with a reducing effect occurred</span><span style="font-family:Arial">» (Criminal Court of Cassation, No. [Telf2] of 10:30 a.m. on February 23, 2006).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">In accordance with everything stated in this section, this chamber considers that the trial court erroneously applied the rules concerning the statute of limitations for the criminal action, since in this case the extinction of the criminal action in favor of Dr. [Nombre2] </span><span style="font-family:Arial; color:#010101; -aw-import:spaces"> </span><span style="font-family:Arial; color:#010101">did operate.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> The undersigned of this judgment consider that the Public Prosecutor's Office belatedly requested the application of the special rules provided for the so-called "Procedure for matters of complex processing (Procedimiento para asuntos de tramitación compleja)" provided in Articles 376 to 379 CPP; if it had requested it in a timely manner, it could have prevented the statute of limitations period from being reduced by half.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> This is another detail that, together with the way in which the opportunity criterion (criterio de oportunidad) was granted to [Nombre36] , denotes the deficient management of the criminal action that occurred in this case by the Public Prosecutor's Office. For all the reasons indicated, the appeal is granted, and the criminal action is declared extinguished because the statute of limitations has operated.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> The nullity of documentary evidence No. 588 and all the evidentiary elements that directly depend on it is declared.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> The criminal conviction judgment issued against Mr. [Nombre2]</span><span style="font-family:Arial; color:#010101; -aw-import:spaces"> </span><span style="font-family:Arial; color:#010101">is annulled and in its place he is directly acquitted of all penalty and responsibility, since due to the nullity of the essential evidence and the statute of limitations, it is impossible to order the retrial or the replacement of the resolution concerning the criminal action, so it must be resolved directly (Article 465 third paragraph of the CPP) on the basis that his guilt was not proven by final judgment, pursuant to Article 39 of the Political Constitution.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> The appealed judgment remains intact insofar as it acquitted him of four crimes of Illicit Enrichment. Regarding the civil aspect of the judgment, what will be stated in considering VI must be adhered to, in which the appeal that attorney [Nombre88]</span><span style="font-family:Arial; color:#010101; -aw-import:spaces"> </span><span style="font-family:Arial; color:#010101">filed on behalf of Dr. [Nombre5] is resolved.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> Due to the way in which it has been resolved, it is unnecessary to rule on the other claims that the appellant raises in his appeal, since his corresponding petitions have been addressed. […]</span></p><p style="margin-top:0pt; margin-bottom:0pt; font-size:8pt"><span style="font-family:Arial; color:#010101"> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial; font-weight:bold">VI.- </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">THE APPEAL OF ATTORNEY [Nombre88]</span><span style="font-family:Arial; font-weight:bold; text-decoration:underline; -aw-import:spaces"> </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline">IS RESOLVED.-</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> The disagreement of attorney [Nombre89]</span><span style="font-family:Arial; -aw-import:spaces"> </span><span style="font-family:Arial">is admissible; failure to resolve in the judgment what concerns the civil actions presented constitutes a denial of justice.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101">A) Regarding the civil action for damages of the Instituto Costarricense de Electricidad.</span><span style="font-family:Arial; font-weight:bold; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101"> </span><span style="font-family:Arial; color:#010101">In Considering XV of the appealed judgment, the topic of the civil actions for damages is addressed.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> It is indicated that:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">The Civil Action for Damages filed by the Instituto Costarricense de Electricidad lacks an adequate factual basis to support the founded claims and the possibility of exercising the right of defense and control of the principle of congruence between the judgment and the civil action for damages, a defect that, by itself, constitutes an insurmountable obstacle at this stage of the process that prevents this Court from ruling on the merits of said civil action.</span><span style="font-family:Arial">» (judgment, page 1862).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">According to the trial court, Article 112 subsection d) of the Criminal Procedural Code (specifically the indication of the </span><span style="font-family:Arial; font-style:italic">grounds</span><span style="font-family:Arial"> on which the action is based) implies that the civil plaintiff must make a clear, precise, and detailed description of the facts for which the civil action is brought, to safeguard the principle of congruence (cf. judgment, pages 1862 to 1873).</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> The court indicates that this ground must be established at the time of formulating the request to be constituted as a civil plaintiff, and that in no way would it be admissible for it to be done in the closing arguments of the debate as the representation of ICE intended (cf. judgment, page 1873).</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> It adds that the lack of the formal element of the description of the facts leads to a civil action for damages having to be declared inadmissible, pursuant to Article 291 of the Civil Procedural Code (cf. judgment, page 1874), but that:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">When the formal defect is detected at the time of issuing judgment, the only possible consequence is to refrain from ruling on the merits of the question raised, because it is not possible to do so validly</span><span style="font-family:Arial">» (judgment, page 1874).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">And later it adds:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«</span><span style="font-family:Arial; font-style:italic">Faced with such a scenario, the appropriate course is to refrain from making a ruling on the merits of the civil action for damages filed by the Instituto Costarricense de Electricidad, whose formal defects evidently should have been corrected in previous stages of the process, and if not done, to proceed to the declaration of inadmissibility, however, as already anticipated, at this stage of the process the only solution the Court finds is not to rule on the merits so that the interested party may make its claims in the civil jurisdiction</span><span style="font-family:Arial">» (judgment, page 1879).</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span> </span></p><p style="margin-top:0pt; margin-bottom:0pt; line-height:150%"><span style="font-family:Arial">We consider that the trial court's reasoning is erroneous: even assuming that the very detailed description of the facts that the lower court misses constitutes a requirement of the initial brief to be constituted as a civil plaintiff (a formalistic criterion that this chamber does not share), in any case it should have resolved what corresponded regarding the merits of the matter, since having reached trial, the process cannot be taken back to precluded stages –admissibility or constitution– under the pretext that the civil plaintiff "complement its action and correct the defect" (judgment, page 1873) of its constitution request (this is expressly prohibited by Article 179 second paragraph of the CPP), much less to refer the parties to the civil jurisdiction.</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> This that the trial court ordered constitutes a very clear denial of access to justice, a formalism that has no reasonable basis in Article 112 subsection d) of the CPP and that results from an interpretation of that norm that clashes with the rule set forth in Article 2 of the CPP, an error that must be corrected.</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> Also, consider what will be said in the following section of this considering.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101">B) Regarding the civil action for damages of the Procuraduría General de la República.</span><span style="font-family:Arial; font-weight:bold; color:#010101"> </span><span style="font-family:Arial; font-weight:bold; color:#010101"> </span><span style="font-family:Arial; color:#010101">Between pages 1879 to 1892, the trial court adds that it is also not possible for it to rule on the merits of the civil actions formulated by the Instituto Costarricense de Electricidad and by the Procuraduría General de la República, because both made an inadequate formulation of their claims, because "...</span><span style="font-family:Arial; font-style:italic; color:#010101">there</span><span style="font-family:Arial; font-style:italic; color:#010101"> </span><span style="font-family:Arial; font-style:italic; color:#010101"> is no single damage for which all the defendants must respond jointly and severally, which is the assumption upon which the civil claims were quantified by the Instituto Costarricense de Electricidad and the Procuraduría General de la República.</span><span style="font-family:Arial; font-style:italic; color:#010101"> </span><span style="font-family:Arial; font-style:italic; color:#010101"> What could exist are damages caused by the criminal conduct of specific groups of defendants, for which the defendants of the group and eventually third parties would respond jointly and severally, independently of the eventual damages caused by other groups of defendants</span><span style="font-family:Arial; color:#010101">" (sic, pages 1884).</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> Each group of defendants, explains the lower court, has its own responsibility independent of the other groups, insofar as the accusation does not establish participation in all the crimes, by all the defendants, the only possibility of joint and several liability of all, in the totality of the eventual damage caused.</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> In addition –says the trial court– there are assumptions in which the responsibility of the State or the Instituto Costarricense de Electricidad is dismissed, so it was necessary to specify the damages claimed and the claims for each group of jointly and severally liable parties, which the civil plaintiffs did not do (cf. judgment, page 1886).</span><span style="font-family:Arial; color:#010101"> </span><span style="font-family:Arial; color:#010101"> The trial court points out:</span></p><p style="margin-top:0pt; margin-bottom:0pt"><span style="font-family:Arial">«By proceeding, on the part of the civil plaintiffs (Procuraduría General de la República and Instituto Costarricense de Electricidad), to quantify claims in the way they did, they leave the Court unable to rule on the merits of the same. To rule validly, the Court would have to disaggregate the different groups of jointly and severally liable debtors,</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> determine the specific facts attributable to them and determine the eventual damage that those facts could have caused to the Instituto Costarricense de Electricidad and/or to the collective or diffuse interests that the Procuraduría General de la República represents. Based on the foregoing, the civil claims could be assessed, which would have to be modified in accordance with the mentioned factual assumptions, which are the cause of the same.</span> The foregoing is not a task the Court can perform, because these are matters whose determination is the exclusive province of the parties, not the Court, which, by doing so, would lose its objectivity and impartiality by supplementing the parties' deficiencies and would violate the principle of congruence, by resolving beyond what was requested. The foregoing is aggravated by the circumstance that</span><span style="font-family:Arial"> </span><span style="font-family:Arial"> no attempt was made to establish the individual damage eventually caused by each group of jointly and severally liable debtors (deudores solidarios), such that, even if the Court decided to do the work for the civil plaintiffs (partes actoras civiles), it would lack the inputs to do so, and if it did, it would ultimately be only at the judgment stage that the civil defendants (demandados civiles) would come to know what were the concrete, determined, and specific claims (pretensiones) formulated against them, in which case the due process (debido proceso) requiring that the specification of claims must occur before the conclusion of the preparatory procedure would be violated, so that the civilly sued parties could properly exercise the right of defense (derecho de defensa), which would be violated if the Court were to rule on the merits of the claims as they were formulated.» «In addition to the foregoing, it was not considered that the very Instituto Costarricense de Electricidad that demands reparation for damages (daños y perjuicios) in its favor is one of the legal entities that, according to the law, are jointly and severally obligated with the civil defendants to their reparation. In other words, had the damages claimed by the Instituto Costarricense de Electricidad occurred, said institution must bear part of those damages, as its own public officials (members of the Board of Directors and others) participated in their production. In other words, and in principle, the Instituto Costarricense de Electricidad is a jointly and severally liable debtor for the entirety of the damages it claims, such that having borne them in their entirety, which is equivalent to having fully assumed the joint and several obligation (obligación solidaria), should its existence be proven, the other jointly and severally obligated parties, vis-à-vis the Instituto Costarricense de Electricidad, do not have joint and several liability, but rather the liability that exists between jointly and severally liable debtors internal to the relationship. In this regard, numeral 649 of the Civil Code establishes that *“Joint and several co-debtors divide the debt among themselves in equal parts, unless there is an agreement to the contrary.”*» «As the civil action for damages (acción civil resarcitoria) of the Instituto Costarricense de Electricidad, a jointly and severally liable civil party for the damages it claims, is directed against other jointly and severally obligated parties, the claim must be limited to the proportional share corresponding to each, which can only be determined by considering all jointly and severally obligated parties, since the debt is divided in equal parts among all. What is being sought to enforce are the legal actions that one jointly and severally liable co-debtor has against the others, and not those of the creditor against the jointly and severally liable debtors. According to numeral 693 of the Civil Code, *“Every civil obligation confers upon the creditor the right to compel the debtor to perform that to which he is obligated.”* As for the amount of reparation in joint and several obligations, vis-à-vis another jointly and severally obligated party, a debtor is only obligated for the proportional share corresponding to him and not for the entirety (Art. 649 of the Civil Code), the foregoing when dealing with private individuals. In the case of public officials, each responds according to the degree of participation in the act, and in that determination, all participants must be taken into account even if they are not parties to the proceeding (Art. 205, subsection 1 of the General Law of Public Administration).» «Thus, the Instituto Costarricense de Electricidad could not seek from the civil defendants the entirety of the damages caused, nor did it have a joint and several action against them. In the first place, it should have determined a concrete and specific claim regarding each group of jointly and severally liable debtors, considering the concrete and specific damage that the concrete act produced; moreover, it should have specified, regarding each civil defendant and in the context of each group of jointly and severally liable debtors, the specific claim through a proportional distribution of the claim—in the case of the private defendants, according to numeral 649 of the Civil Code, and with respect to the public officials, that specific claim should have considered the degree of participation of each official (Art. 205, subsection 1 of the General Law of Public Administration), all of which, of course, should have had full support in the description of the facts, which should have provided the factual substratum for the claim, all matters that are determinable exclusively by the civil plaintiff.» «As already indicated, in application of both the General Law of Public Administration and the Civil Code, the concrete determination of the claim should have taken into account not only the civil defendants regarding each group of jointly and severally liable debtors, but all jointly and severally obligated parties according to the law, including those not sued, who must be equally considered in the distribution internal to the civil liability in cases of joint and several obligations, because otherwise the other jointly and severally liable debtors would be prejudiced by increasing their liability. The Court, again, could not supplement the party's negligence without seriously violating important principles of civil procedure such as the objectivity and impartiality of judges, the right of defense, and due process in general, by permitting actions contrary to the legal provisions regulating the civil action for damages that affect the correct development of the process and the right of defense of the parties, who would only come to learn, upon the issuance of the judgment, what the concrete claim made against them consisted of.» «Similar objections can be made to the civil actions filed by the Procuraduría General de la República, a State body charged by the Code of Criminal Procedure with the exercise of the Civil Action for Damages in representation not of the State, but of Collective and Diffuse Interests (Article 38 of the Code of Criminal Procedure). The Procuraduría General de la República could not ignore, when formulating the civil action for damages and its claims, that the State and the Instituto Costarricense de Electricidad were also designated by law as jointly and severally obligated parties to answer for the damages to collective or diffuse interests, whose compensation is sought. This is because public officials from the Executive Branch, the Legislative Branch, and the Instituto Costarricense de Electricidad participated in the eventual production of the damages. By not bringing a civil action for damages against those entities, the Procuraduría General de la República breached its obligations under numerals 20 and 21 of its Organic Law. According to the former, *“The prosecutors have, with respect to the proceedings in which they intervene before judicial authorities, the powers corresponding to judicial representatives, according to common legislation, with the following restrictions: they are absolutely prohibited from acquiescing, settling, conciliating, or withdrawing from the lawsuits or claims, as well as submitting the proceedings to the decision of arbitrators, without the prior written authorization of the Attorney General, the Assistant Attorney General, or the official to whom they delegate. No action taken in opposition to the preceding paragraph shall have any value or effect, in or out of court, and the nullity of the proceedings to which the violation reasonably gives rise must be declared, even ex officio, by the courts of justice.”* The second cited numeral states: *“It is prohibited for the servants referred to in the preceding article: to fail to file the lawsuits or claims in which they must intervene as plaintiffs; (…).”*» «Consequently, the Procuraduría General de la República, in claiming social damages representing collective and diffuse interests, could not demand full joint and several liability from all civil defendants without differentiating, as was appropriate in this case, among the different groups of jointly and severally liable debtors, and had to determine, regarding each group, what the specific criminal act attributed was and the damage caused thereby, all factually supported by the description of facts. By not proceeding in that manner, but rather through a global claim, as if all civil defendants had participated in all the charged crimes and without describing in the facts the concrete damage caused by the concrete act regarding each group of jointly and severally liable debtors, the Court, as with the civil action for damages filed by the Instituto Costarricense de Electricidad, finds itself unable to rule on the merits of the civil actions because, to do so, it would also have to do the work for the civil plaintiff, regarding matters that only concern it, with the corresponding loss of objectivity and violation of due process manifested in the principle of congruence, the principle of inviolability of the defense, and the principle of impartiality.» «The conduct of the civil plaintiffs involves deficiencies in the civil actions, which, for the reasons stated, prevent the Court from ruling on their merits. It is true that such defects could have been corrected with timely and adequate intervention by the courts that participated in the stages prior to the debate, providing for their correction, but by failing to do so and by admitting the civil actions in the form they were presented, they contributed to the defective procedural activity not being overcome and persisting until this moment when no corrective measure is possible, and because the procedural activity involves defects of an absolute nature, such as the violation of due process and the right of defense, it is not possible to consider said activity cured, making applicable the provisions of numeral 194 of the Code of Civil Procedure [...]» «Like the Courts of the preparatory and intermediate procedure, the civilly sued parties could also have alleged the noted defects in the civil actions for damages in the prior stages and not waited until the closing arguments of the debate, in which case they also bore their share of responsibility for the defects not being overcome and for the Court being unable to rule on the merits of the allegations, claims, and defenses formulated.» «The proper course, pursuant to the foregoing, is to omit a ruling on the merits of the civil actions formulated by the Procuraduría General de la República and the Instituto Costarricense de Electricidad and to refer them to the civil jurisdiction so that they may resolve their claims.» (Judgment, pages 1887 to 1892).

Again, the trial court's reasoning is erroneous; note that it says it cannot proceed to supplement the deficiencies or negligence of the civil plaintiffs without violating its objectivity and impartiality, that it cannot do the work of the civil plaintiffs by adequately specifying their claims against each civil defendant, yet it opts to "omit a ruling" and refers them to the civil jurisdiction, so that there they may correct all the supposed errors they made when becoming parties (recall what was stated in the previous section of this Recital) or when formulating their claims, a decision that really compromises the objectivity and impartiality of the judge, because it denotes a tendency (or "paternalism," as Mr. [Name90] said in the oral hearing) favorable to the civil plaintiffs, which significantly aggrieves the civil defendants, who are deprived of a judgment that promptly and fully defines or resolves the situation until the civil plaintiffs manage to properly carry out their actions. An injury has been caused to the appellant that must be corrected in this venue. **C) Regarding Costs.** The question of costs was resolved in Recital XV, section D (judgment, pages 1892 to 1893). The trial court states that it rules without a special award of costs regarding the civil action, because a ruling on the merits thereof was omitted, the conditions for an award of costs do not arise, adding that the civil plaintiffs had plausible reasons to litigate. As claimed by Mr. [Name91], on the one hand, there is no express explanation of why it can be assumed that the civil parties had plausible reasons to litigate, a defect that leaves the decision without foundation; Article 266 of the CPP clearly indicates that the court must rule in a reasoned manner on the payment of procedural and personal costs when issuing the decision that ends the case. On the other hand, as previously stated, by having omitted a ruling on the merits of the civil actions, the lower court committed an error that directly impacts the determination of costs (cf. Article 270 of the CPP), causing injury to the parties, which must be corrected in this venue. **D) Conclusion.** The errors indicated in this Recital regarding the civil actions and costs have caused an injury to the civil defendant [Name5] and, by application of the extensive effect, his appeal benefits the other civil co-defendants, since it is not based on exclusively personal reasons (cf. Article 443 of the CPP). Note that Article 124 of the Code of Criminal Procedure warns that “*From his intervention in the procedure, the civilly sued third party shall enjoy all the powers granted to the accused for his defense, in what concerns his civil interests*”. Regarding the correction or amendment to be made in this case, it is not possible for this Chamber to do it directly—as Mr. [Name91] intends—rather, it is necessary to order a remand proceeding (juicio de reenvío) to the competent criminal court so that, with a different panel, it may proceed to a new processing of those matters (civil actions for damages and costs). The correction must occur in a remand proceeding—in this same criminal jurisdiction—with the guarantees of an adversarial process to preserve the principle of procedural equality (Article 6 of the Code of Criminal Procedure) and to allow any of the civil parties who might eventually feel aggrieved to have the opportunity to challenge what is ordered through the appeal (recurso de apelación). The proceeding on the civil consequences and costs must be conducted according to the rules set forth in Article 359 of the CPP, and on the basis that the act accused by the civil and criminal plaintiffs against the civil co-defendants was not proven at trial. Based on all the foregoing, the appeal of Mr. [Name89] is granted, the judgment is annulled in its civil aspect, insofar as it ordered to omit a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as well as the decision regarding costs, and the case is remanded to the competent court for the new processing of those matters. [...]

**IX.-** **THE APPEAL FILED BY PUBLIC DEFENDER [Name92] AND WILSON FLORES FALLAS IN FAVOR OF ACCUSED [Name93] IS RESOLVED** .- **1. Regarding the crime of Illicit Enrichment:** Of the issues proposed by Attorneys [Name92] and Wilson Flores Fallas, representing Mr. [Name94] , their disagreement with the judgment has been expressed through various writings, the first of which is an appeal for "cassation" filed by the defense attorney [Name95] on April 27, 2011 (cf. Volume XXXVI, starting at folio 171102), and subsequently in an appeal for conversion. This Chamber proceeds to resolve the grounds that by themselves entail the nullity of the judgment and the acquittal of the defendant **for the crime of Illicit Enrichment.** **First Section.- Defects that by themselves entail the nullity of everything resolved.** **A.** **Statute of limitations of the case. In the first procedural ground of the appeal of Attorney [Name96] and in the first procedural ground of Attorney [Name97] , a violation of due process is alleged because the case had expired under the statute of limitations** . They indicate that the statute of limitations defense was raised in various instances and was rejected. The reason given by the Trial Court to dismiss the statute of limitations was based on the declaration of complex processing (tramitación compleja) of the case made on March 3, 2006, the judges considering that, by virtue thereof, the reduction of the statute of limitations period could not apply, pursuant to the provisions of the third paragraph of Article 376 of the procedural legislation. As the defense states, procedural acts are governed by the law in force at the time they occur and take effect according to that law. Article 376 of the CPP would not provide any possibility for the declaration of complex processing to make its effects retroactive, nor to interrupt the statute of limitations. **Their claim is well-founded.** The appellants mention that the legal classification of the acts against [Name86] was reduced to the crime of illicit enrichment, which, for the date of the acts, stipulated (December 10, 2001, Article 346, subsection 3): “A public official who, without incurring a more severely punished crime, shall be punished with imprisonment of six months to two years: 3) Accepts gifts that were presented or offered to him in consideration of his office, while remaining in the exercise of the position.” Hence, the co-accused [Name84] is charged with 3 crimes of illicit enrichment, in material concurrence (concurso material), pursuant to numeral 346, subsection 3 of the Penal Code, punishable by a prison sentence of 6 months to 2 years, the statute of limitations period for which, according to Article 31 of the Code of Criminal Procedure, would be 3 years, such that, reduced to half the period, it would be 18 months from one of the causes for interruption of the statute of limitations. Specifically, Article 33 of the procedural law establishes that statute of limitations periods shall be reduced by half in several circumstances; the one relevant to the case is when the investigative statement (declaración indagatoria) has been made. In the case of Mr. [Name86], this took place at 14 hours 5 minutes, on March 7, 2005 (CED1 ). Therefore, a statute of limitations period of 18 months must be computed from this moment until the holding of the Preliminary Hearing. The scheduling of the Preliminary Hearing was made on September 10, 2007, so by the time that act was held, the case would have already expired under the statute of limitations as of September 7, 2006. However, the Trial Court deems that the declaration of complex processing declared on March 3, 2006, produces a retroactive effect, affecting the statement as an accused that had begun with statute of limitations rules for ordinary processing **.** **This Chamber has already ruled against the retroactive effects that have been given to the declaration of complex processing of the case.** **The reasoning supporting this conclusion has already been expressed when resolving the appeal of Dr. [Name2] , which is referred to in order to avoid unnecessary repetition. It is therefore appropriate to declare the case against [Name94] statute-barred and to acquit him of the crime of Illicit Enrichment that was being attributed to him.** ** ** **B.** **Tainted evidence.** **In the sixth procedural ground of the appeal of Attorney [Name96] and also in the sixth procedural ground of the appeal of Attorney [Name97], in favor of the defendant [Name86], the incorporation of evidence obtained in violation of fundamental rights is alleged.** The appellants point out that the judgment would have incurred in a violation of due process, by violating 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 Registry, Seizure and Examination of Private Documents and Intervention of Communications, an aspect sanctioned with nullity.

Regarding documentary evidence No. 588, which is a certified copy of the Judicial Assistance from the Republic of Panama, sent via notes PGR-030-2004, dated September 10, 2004, and No. 316-DN-TALM-04 of September 6, 2004, consisting of 420 folios, the appellants point out that the consent of the legal representative of Marchwood Holding, the account holder, Mr. [Name7], is not sufficient, since the proceeding was carried out, at the time, without a judge's order as required by Costa Rican law. They argue in this regard, based on some considerations regarding the fundamental right to privacy derived from Article 24 of the Constitution, which is, in turn, a guarantee derived from international human rights law (Article 11(2) of the American Convention on Human Rights, Article 17 of the International Covenant on Civil and Political Rights). Intervention in the intimate sphere of citizens may only be ordered by law, and under the conditions it establishes, and in whose application and interpretation there shall always be a jurisdictional guarantee. By virtue of this, consent such as that given by [Name7] would not have the virtue of enabling the waiver of the guarantees derived from this constitutional right to privacy. The action consented to by [Name10] also affects the fundamental rights of other actors, and through it, an item of evidence is obtained and information is obtained linking Servicios Notariales Q. C. S. A. with the Cuscatlán International Bank and international transfers from Servicios Notariales Q. C. S. A., in favor of defendants in this case and from Alcatel Cit in favor of Servicios Notariales Q. C. S. A., such that the evidence derived therefrom, including evidence against [Name84], would also be unlawful, and it is requested that it be so declared. **Their claim is well-founded.** The arguments for analyzing this legal problem have already been explained earlier, when resolving the appeal filed by Dr. [Name2] (A-1). Therefore, it is necessary to apply to the defendant [Name84] the same effects that this determination had for the defendant [Name5]; the nullity of documentary evidence No. 588 and all evidentiary elements that depend on it is declared; the criminal conviction handed down against [Name84] is nullified, and in its place, he is directly acquitted of all punishment and responsibility. The challenged judgment remains unaltered insofar as it acquitted him of two crimes of Illicit Enrichment. **B.** Defects regarding the determination of the fact and the assessment of the evidence to determine the indicia that led to the conviction for the crime of Illicit Enrichment. **1) Regarding the elements of the objective and subjective criminality of the crime of Illicit Enrichment that must form the accusation and the evidence that must be assessed for the criminal legal attribution of the fact to the defendant.** In the first ground of the appeal by Licentiate [Name96], and in the fourth ground regarding the form of the appeal by Licentiate [Name97], an erroneous application of substantive law is alleged, since the **facts described in the accusation corresponding to facts 203, 208, and 210 do not describe the objective and subjective elements of the criminal definition of illicit enrichment that is charged, corresponding to Article 346, subsection 3 of the Penal Code.** They argue that the judgment incurs a violation of the principle of correlation between accusation and judgment, as established in Articles 363, subsection b) and 369, subsection h), both of the Code of Criminal Procedure. According to Licentiate [Name96], the facts ranging from number 199 to number 211 present problems regarding the typical description of the crime of illicit enrichment. **Their claim is well-founded.** This Chamber has carefully read the facts attributed to the defendant [Name86], and it is observed that, indeed, it is attributed that various gifts consisting of money were presented to him, which were admitted by him, while he remained in his position as an ICE official in the Conmutación Department; thus, fact 201 establishes:

"*...201) The accused [Name98] and the indictee [Name59], as representatives of the Alcatel company, presented to the defendant [Name84] in consideration of his office a gift consisting of money, the same which was admitted by [Name86] while remaining in the exercise of his public office, specifically as Sub-chief of the Conmutación Department of I.C.E., a situation that generated illicit enrichment for him.*" The Illicit Enrichment that is charged stems, as the Public Prosecutor's Office might be positing in its accusation, firstly, from having been the subject of an offer of a gift, which is not a specific and special element of the charged crime, but rather of some other criminal categories, such as, for example, the crime of Bribery. As the defense postulates, there would be a need for the accusation to contemplate the special elements of Illicit Enrichment whenever the act performed by the accused is described, on the various occasions on which such criminality may have taken place. That is, each time an offer of a gift is made, there should also be an imputation of the correlative acceptance. In a word, for the criminal imputations to be complete, they should be described in this manner every time a new fact of Illicit Enrichment is attributed to the defendant. Furthermore, the crime of Illicit Enrichment requires that the accusation describe that the presentation of the gift occurs in consideration of the office of the person who is a public official, since the gift itself is already an objective requirement of the criminal definition of various offenses such as improper bribery, proper bribery, or the same acceptance of gifts for a completed act, for example. Hence, it is not clarified, with the required precision, the accused fact and the eventual criminality of the conduct that could derive therefrom. In facts 203, 208, and 210, this shortcoming is noted again:

"*Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Name99] and [Name77] presented to the defendant [Name84] a gift consisting of investment certificates Nos. 22400200037170, [Identificacion1], [Identificacion2] and [Identificacion3], all issued to bearer on December 10, 2001, with a maturity date of January 11, 2002, from Banco Cuscatlán de Costa Rica, each for ten thousand dollars ($10,000), for a total of fifty thousand dollars ($50,000) and their interest coupons for one hundred eighty-two dollars and ninety-five cents ($182.95)*".

*In fact 208 it is charged:* "*Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Name73] and [Name59] presented to the defendant [Name84] a gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. [Identificacion4], [Identificacion5], [Identificacion6] for 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 for the total sum of $53.17.*" *In fact 210 it is charged:* "*Without specifying a date, but between December 17, 2002, and January 21, 2003, the corrupters [Name73] and [Name59] presented to the defendant [Name84] a third gift consisting of bearer investment certificates from Banco Cuscatlán de Costa Rica No. [Identificacion7], CED2, CED3 and CED4 each for the amount of ten thousand dollars ($10,000) for a total of forty thousand dollars ($40,000) and their respective interest coupons for a total of $100.80, which was accepted by the defendant [Name86] and he disposed of it in the following manner:...*." In this regard, the defenders of the accused [Name86] indicate that the previous description does not contain the necessary requirements for the objective and subjective criminality of the charged offense, and therefore, the accused facts would eventually become atypical as it is not established what, how, and in what manner the behavior attributed to the defendant was carried out. On the one hand, taking into account that we are before a willful conduct where the person presenting the gift does so in consideration of the office of the official who receives and accepts it, there would be a need to describe the circumstances in which this knowledge plays a role, beyond admitting that such an element would be deduced from the position that [Name86] held at ICE. This second condition of the typical fact is also willful, and requires that the active subject know the reason motivating the presentation of the gift. As is well expressed in the dissenting opinion of Judge [Name100], the criminal definition of Illicit Enrichment can be fulfilled through two alternative conducts: i) the acceptance of a gift offered and ii) the acceptance of a gift presented. These are, in effect, two possibilities for the criminality of the fact, which must be delineated to clarify what is attributed to the active subject, who is, in effect, a public official, and is the object of these offerings in consideration of said position. That is why, by determining the scope of the prohibition, the active subject who comes into material possession of the gift that is placed in their presence by another subject would fulfill the criminal definition; but the active subject who accepts receiving in the future the gift that another subject has committed to give them would also be punishable. As can be seen, the criminal category is complex; it requires the demonstration of these alternative circumstances, in order to establish the conditions of the attributed fact. However, as Judge [Name100] rightly points out in his dissenting opinion, these are two facts that do not have the same legal significance (cf. Dissenting Opinion of Judge [Name100], folios 2013 to 2015). The receipt of the gift has different consequences in these alternative typical conducts: in the case where it is consummated with the mere acceptance of the gift offered, it is not necessary to have a demonstration of the receipt of the gift itself, since consummation occurs with the "acceptance". In the other case, precisely the consummation phase requires that there be a demonstration of the receipt of the gift. In this regard, the dissenting opinion holds the following considerations, which this Chamber endorses:

"*The receipt of a gift based on a previously accepted offer and the acceptance of a presented gift do not have the same legal significance. In the first scenario, it is an irrelevant act of exhaustion, and the second scenario is the act that consummates the crime. All elements of the criminal definition must be present at the moment of consummation. It is at the moment of consummation that the active subject must be a public official, that the gift must be presented and offered to them in consideration of their office, and furthermore, the official must remain in the exercise of the position at that moment. In the scenario of the typical conduct of “acceptance of a presented gift”, all the cited typical elements must be met when the active subject comes into possession of the gift. In the scenario of the typical conduct of “acceptance of an offer of a gift”, all the typical elements must be present when the acceptance occurs, but it is not necessary for all the typical elements to be present when the active subject comes into material possession of the gift, which, as we have seen, is an irrelevant act, a moment for which they might have ceased to be a public official and this would in no way affect the criminality of the conduct at the moment of consummation (acceptance of the offer). It is for these reasons that it is essential to determine in each case the concrete conduct carried out by the active subject in light of the criminal definition of illicit enrichment*" (Dissenting Opinion of Judge [Name101], folio 2015).

In the case of the facts attributed to [Name86], we would therefore be in the presence of an accusation for an incomplete fact, which does not satisfy all the elements of the objective criminality and leaves the subjective element of the fact without substance, both for the person offering and the person accepting the gift. It is taken into account, of course, that Illicit Enrichment is a subsidiary criminal category, and it comes into consideration given the difficulty or impossibility of proving other categories against the duties of public function, but in this specific case of the criminality imputed to [Name86], that subsidiarity cannot be found, not only because the accusation remains on the mere fact of the offer of the gift, and does not elaborate with sufficient evidence the other typical considerations of the punishable act. Furthermore, the accusation leaves to a judicial elaboration the requirements for fitting the punishable conduct that are not in the prosecutorial hypothesis and that must arise from an effort of speculation that conflicts with the limits of judicial work imposed by Article 39 of the Political Constitution. The defects of the accusation prevent the attribution of criminal conduct to [Name86], no matter how much evidence is available of the sums of money offered or received. It is for this reason that the conviction against [Name86] for one crime of Illicit Enrichment must be annulled, for not having accused and proven the elements of the alternative objective and subjective criminality attributed to him; and in such a case, he must be acquitted of all punishment and responsibility for the reclassified crime of Illicit Enrichment for which he was convicted. [...]

**XI.-** **THE APPEAL FILED BY LICENTIATES [Name102] AND [Name103] IN FAVOR OF THE ACCUSED [Name98] IS RESOLVED** .- **1. Regarding the four crimes of Penalty of the Corrupter:** Of the issues proposed by Licentiates [Name102] and [Name103], representing Mr. [Name98], their disagreement with the judgment has been expressed through various writings, the first of which is a "cassation" appeal that was presented and subsequently in a converted appeal. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the defendant for four crimes of PENALTY OF THE CORRUPTER, committed to the detriment of Probity in the Exercise of Public Function. **First Section.- Defects that by themselves imply the nullity of everything resolved.** **A. Statute of limitations of the case.** **In the first ground regarding the form of the appeal, Licentiates [Name102] and [Name103] allege a violation of due process because the statute of limitations for the case had expired.** They indicate that the exception of the statute of limitations was raised in various instances, and was rejected. The reason given by the Trial Court to dismiss the statute of limitations was based on the declaration of complex processing of the case that occurred on March 3, 2006, the judges considering that by virtue of this, the reduction of the statute of limitations period could not apply, pursuant to the third paragraph of Article 376 of procedural legislation. As the defense states, procedural acts are governed by the law in force at the time they occur and take effect according to this law. Article 376 of the CPP would not be giving the declaration of complex processing any possibility of making its effects retroactive nor that of interrupting the statute of limitations. Therefore, the statute of limitations for the facts alleged against [Name104] would have expired on April 14, 2007; without any of the interrupting acts established by criminal procedural law having occurred by that time. They request that this Cassation Appeal be upheld based on this ground and that it be declared that the criminal action was extinguished by the statute of limitations on April 14, 2007. **Their claim is well-founded.** The defense lawyers posit that the statute of limitations for the case should have been declared from the moment the issue was raised in the process, as the fatal period that extinguishes the criminal action had elapsed.

Although in principle it is clear that the public criminal action was extinguished in the sub judice in favor of [Nombre60] and as a consequence of its statute of limitations, the sentencing Court reasoned timely and based on the provisions of article 376 of the Criminal Procedure Code (Código Procesal Penal), which roughly establishes that when the processing of the case is ordered as complex during the investigation and intermediate stage, the reduction of the limitation period by half, as established by article 33 of the Criminal Procedure Code, does not apply, in the sense that in this case the declaration of complex processing of the case prevented a favorable ruling on the request for extinction of the criminal action.

The main argument of the appellants is that the declaration of complex processing of the case does not modify the reducing effects of the limitation period that had already operated in their moment in favor of Mr. [Nombre98] in the year 2004. It is evident from the case file, the challengers maintain, that [Nombre98] was investigated for the facts subject to this process at 2:30 p.m. on October 14, 2004. Therefore, the expiration period for the criminal action would expire on April 14, 2007, given that the next act that, according to the strict application of the law, suspends the statute of limitations is the scheduling of the Preliminary Hearing; which in this case was not issued until September 10, 2007. According to this starting point, with the investigatory statement of the accused, the limitation period would have been reduced by half, as ordered by the Criminal Procedure Code. The declaration of complex processing of the process could not, then, affect what had already been produced in accordance with the general rules imposed by procedural legislation. They cite in their favor the doctrine of Prof. [Nombre105] in his work “Código Procesal Penal Comentado,” who maintains that if the reduction of the limitation period by half has already operated, this should govern for the rest of the process, and not that later it is said that such reduction has not operated, as it would be a kind of “manipulation” of the limitation period, with the retroactive application of the declaration of complexity. This Chamber had already ruled against the retroactive effects that have been given to the declaration of complex processing of the case. The reasoning supporting this conclusion has already been expressed when resolving the appeal of Dr. [Nombre2], to which it refers to avoid unnecessary reiterations. It is therefore appropriate to declare the cause pursued against [Nombre98] time-barred and absolve him of four crimes of penalty of the corrupter (penalidad del corruptor) that were being attributed to him.

B. Unusable (Illegal) Evidence. The Court used information obtained from the statement of the co-defendant [Nombre4], who provided that information for the conviction under an improper procedural advantage. [...] They are correct in their claim and the ground must be granted. This Chamber has expressed a series of arguments that support the defense's thesis, when resolving the appeal filed by Dr. [Nombre2], not only from the point of view of the regulated opportunity criterion (criterio de oportunidad reglado) applied in this case, but also regarding the procedural and factual consequences implicit in the use of the statement of a “cooperating accused” (imputado colaborador), who in his statement makes a calculation based on the procedural and punitive advantages that have been offered to him and the information he will provide to obtain them. Reference is made to this section of the resolution to avoid unnecessary reiterations. However, it should be noted that abundant bibliographic material demonstrates the skepticism and reservations generated in national and international doctrine by the use of this type of testimony in the process, and the felt need for judges to critically analyze their deposition with the rules of correct human understanding, logic, and psychology, in essence, with suspicion, so that the information provided does not become the sole element for the conviction of a defendant.

This Chamber also analyzed, in detail, that the dissenting vote of Judge [Nombre100] extensively assessed the drawbacks of using his testimony, not only because of the defects that had been observed due to the lack of effective judicial control in the application of the legal institute (instituto) resulting from the omission of information that has been alleged by the appellants and that had as a final consequence: the admission of the use of the opportunity criterion in favor of [Nombre36]. In essence, the details of what was declared by [Nombre36], and which have been included in facts numbers 84 to 94, involve not only [Nombre5] but also [Nombre60], not only because of the conversation at the restaurant “La Casona” where bribes were supposedly offered to [Nombre36] to intervene in the decisions regarding the tender for the four hundred thousand telephone lines, but also because [Nombre73] is placed in an action suitable to ensure that [Nombre36] became an effective piece in favor of the interests of the multinational Alcatel. Along with this, on folio 1157 of the judgment, what was mentioned by [Nombre36] about the supposed means by which the bribes would be paid is introduced, and that [Nombre73] had informed him that it would be done through Servicios Notariales QC S.A. as a means to be more protected.

In the same way, the court’s conviction regarding the way in which the point of view on GSM technology was changed relies on the fact that both [Nombre36] and [Nombre106] had already received remunerative promises, as expressed by [Nombre36] (folio 1164). The majority Court found, additionally, that everything stated by [Nombre71] was reliable and, moreover, consistent with the evidence produced. Regarding what interests [Nombre73], the court understands that [Nombre77] and [Nombre99] ask [Nombre36] to help them achieve the technological migration, achieve the public tender (concurso público), and that in it, the award to Alcatel is achieved, in the event that said public tender takes place (folio 1167). In this regard, the majority court considers that there is a logical sequence of events: first, achieving the technological migration, then the public tender, and finally, the final award, which implied the full satisfaction of Alcatel's commercial interests. Therefore, it connects what was said by [Nombre36] with the undertakings of [Nombre73], especially regarding the latter's offer to ICE of a commercial proposal involving the donation of equipment in 1998 and direct purchase. The proposal was presented at the Board of Directors (Consejo Directivo) session No. 5268 of February 2, 2001. The court even considers that it was not enough for [Nombre99] to have “bought” two officials, since he already knew that there were suspicions from the oversight body about approving the direct purchase of 160 thousand lines, due to the suspicion that interests other than those of the Administration were involved (folio 1168). And it is for this reason that the court supposes, theorizes, that Alcatel only had to seemingly meet the requirements of the tender specifications (cartel) to have a guarantee of success (folio 1168).

However, and as already analyzed above, in relation to the challenges in favor of [Nombre107], it is more than evident that the process that concluded with the award was pristine, and that only two competitors, for various reasons unrelated to Alcatel, ended up participating in the abbreviated procedure (procedimiento abreviado), with Ericsson being excluded for technical and offer-related reasons. In fact, the assessments of various ICE instances agreed that the technical offer that best met the required requirements was Alcatel's, and endorsed the award, as was analyzed in detail by this Chamber. It is for this reason that it can be derived from the majority vote's argumentation that there was a conviction hypothesis that had been built from the statement of [Nombre36], and the details he gave about the remunerative offers received and the role he had to fulfill when participating in the Board of Directors sessions as a member thereof. But the truth is that the process toward migration had been decided before such offers took place, and the path was not easy because the TDMA-based technological infrastructure made Costa Rica dependent on the providers of the mentioned technology, an offer from which, of course, Alcatel was excluded, since its development base was GSM technology.

However, neither the commercial offer nor the delivery of the 2000 GSM lines were decisive in convincing the Board of Directors of the advisability of following the path of opening, since those decisions were already being made based on technical criteria, and benchmarking and other studies. The entire process finally produced the interest of Mr. [Nombre108] and the Board of Directors of ICE in opting for the direct purchase procedure. This Chamber has already considered that this path benefited Alcatel more by virtue of the fact that it would proportionally participate in the purchases that ICE would make of telephone lines. The abbreviated procedure, for its part, did not guarantee that security, not only due to the uncertainty of who its competitors would be, what the nature of the economic offers would be, and under what conditions the entire evaluation process of those offers would occur. Finally, the contract was awarded to Alcatel, but not by virtue of a rigged offer. Everything seems to indicate that the offer satisfactorily met the public interests, and the growth possibilities that ICE had at those dates, given the pending demand and the forecast of future market evolution. The technological change, moreover, suited the needs of the cellular market, which expected better value-added communication services that the TDMA platform could not satisfy.

All of this has already been analyzed on the occasion of analyzing the participation of [Nombre107] as coordinator of the commission in charge of this entire procedure, and where this Chamber placed special emphasis on the analysis of the tender procedure (procedimiento licitatorio). The defense of the accused, but especially attorney [Nombre102], always insisted that it was illogical that the remunerative proposal, as recounted by [Nombre36], had those objectives that the lower court maintains in its majority vote. Despite this, the judges insist that the assertions of [Nombre71] were ratified by them, even when they collide, as has been demonstrated, with the reality of a procedure that experts have classified as pristine.

From folio 1172 to 1175, the judgment explores the kinship relationship that exists between [Nombre73] and [Nombre109], which, despite the requirements of Alcatel's code of ethics, occurs and facilitates the channel or flow of money to the corrupt officials who end up deciding the award process for the 400 thousand lines. The judgment places [Nombre99] using a “secure” mechanism for paying the bribes, which had supposedly already been explained to [Nombre36]. The causal connection, then, between [Nombre73] and Servicios Notariales Q.C. S.A. and the entire mechanism devised to pay the bribes, is sustained by an inference from the statement of [Nombre36], however much the connections and payments through the banking investigation (also questioned) had their effect on the judicial conviction. In this regard, [Nombre36] explained on each of the seven occasions on which funds were transferred to him, [Nombre99] previously communicated with him and asked him how the payment would be made. [Nombre71] gave him account numbers and the funds flowed there. From this, the majority Court also derives the connection between [Nombre73] and [Nombre109], who made the payments from the accounts controlled by Servicios Notariales QC S.A.

What was said by [Nombre36], about his role in the decisions of the abbreviated procedure and in the award of the “400K” project, is openly illogical, and does not square with the analysis of the decision-making process that demonstrates that ICE was already advancing toward technological opening, through legal paths and with the obstacles typical of the Public Administration for making decisions. However, the path was open before [Nombre36] received remunerative promises (according to his statement) to influence the procedure. The mendacity of witness [Nombre36], and the well-grounded suspicion that he acted selfishly to obtain benefits from his statement, cannot be ignored by this Chamber, and it is appropriate to consider the use of his testimony another reason to grant the appeal of attorneys [Nombre110] and [Nombre111], and to decree the nullity of the judgment under review that found [Nombre60] guilty of four crimes of penalty of the corrupter.

It was not necessary, to strengthen this conviction of this Court of Appeals, to assess case file 08-000032-615-PE, pursued against Mr. [Nombre112], regarding the issue that the agreement with the co-defendant [Nombre4] covered other diverse topics in addition to what was related to the contracting of the 400 thousand cellular lines, since, as already analyzed on the occasion of the appeal of Dr. [Nombre5], it has been clearly determined that the granting of the opportunity criterion has flaws, which affect its direct use in this case. It is for the foregoing that the ground is granted and it is appropriate to annul the judgment under review, without ordering a remand because there are no other independent elements that contribute to the effective analysis of the defendant's criminal participation in the facts he is accused of. Therefore, in application of the principle of procedural economy (principio de economía procesal), it is appropriate to absolve him of all punishment and responsibility for said acts.

C. Spurious Evidence (Nullity of evidence no. 588). [...] They are correct in their claim. The arguments to analyze this legal problem have already been explained earlier, when resolving the appeal filed by Dr. [Nombre2] (CED5). This being the case, it is appropriate to apply to the defendant [Nombre60] the same effects that this determination had for the defendant [Nombre5]; the nullity of documentary evidence No. 588 and all evidentiary elements that depend on it are declared, the nullity of the condemnatory criminal judgment issued against [Nombre60] is declared, and in its place he is directly absolved of all punishment and responsibility.

D. Defects regarding the determination of fact and the assessment of the evidence to determine the indications (indicios) that led to the conviction for the crime of Penalty of the Corrupter. 1. Regarding the erroneous application of substantive law in what refers to article 345 of the Criminal Code (Código Penal). In the first ground for defects in iudicando, the appellants contend that Mr. [Nombre60] cannot be convicted as the perpetrator of the crime of Penalty of the Corrupter for having made a promise to deliver a bribe for the performance of an act proper to the functions of those involved. The subsequent delivery of the bribe would be an unpunished act since it is independent and the criminal content of the action is materialized in the promise of the bribe. The appellants begin with some considerations about the systematic function of the criminal type (tipo penal) and the derivations that can be established between its normative description and its role of guarantee for criminal law. With respect to the crime of penalty of the corrupter, which occupies the central interest of this section, they consider that the facts point to the following: “…The norm corresponding to the PENALTY OF THE CORRUPTER (currently that of article 345 of the Criminal Code) has been subject in recent years to several direct or indirect reforms. In consideration of what the corresponding criminal type established for the approximate date of commission of the criminal acts that are considered proven (according to what was taken as demonstrated thus: [Nombre65]: offering of bribe at the end of 2000 and beginning of 2001; [Nombre66]: offering of bribe at the end of 2000 and beginning of 2001; [Nombre4]: offering of bribe at the end of 2001; [Nombre67]: offering of bribe between the months of January and August 2001) it is timely to highlight how the norm was drafted at that time:

Article 345: The penalties established in the five preceding articles are applicable to whoever gives or allows the public official a bribe or undue advantage.

It is important to highlight that article 185 of Law 7732 of December 17, 1997, modified the numbering of the Criminal Code and assigned numeral 345 to the until then article 343. Subsequently, the norm of article 343 bis was added to the Criminal Code through Law 8185 of December 18, 2001, published in La Gaceta No. 10 of January 15, 2002, referring to the Offering or Granting of Bribes or Retributions. Here, the specific conduct of whoever offered a bribe to a public official of ANOTHER State is sanctioned.

Finally, we must also highlight that Article 1 of Law 8630 of January 17, 2008, repealed Article 343 bis and amended the rule in Article 345, both of the Penal Code, so that it henceforth reads as follows:</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">\"Article 345.-</span><span style=\"font-family:Arial; font-style:italic\"> Penalty for the Corrupter: The penalties established in the five preceding articles shall be applicable to anyone who gives, offers, or promises a public official a gift or undue advantage.\"…”</span></p><p style=\"margin-top:0pt; margin-bottom:0pt\"><span>&#xa0;</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial\">Regarding the legal interest protected in the crime of Penalty for the Corrupter, some doctrinal annotations are made.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> They begin with [Name113], who maintains that the proper functioning of the administration is protected through the punishment of this conduct, which also includes the principle of impartiality in the public official.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> The author [Name114], for his part, points out that through this figure, the principle of objectivity and impartiality in the administration is protected.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> In Latin America, the Argentine author</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> [Name115] indicates that the venality of the public official is protected as the object of protection.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> They also cite precedents from the rulings of the Third Chamber of Criminal Cassation, specifically Voto 183-95, which in turn reiterates what was already upheld in Voto 256-F-97, and in which it was stated that what was protected was the “</span><span style=\"font-family:Arial; font-style:italic\">healthy and normal functioning and prestige of the public administration through the correctness and integrity of its employees or servants</span><span style=\"font-family:Arial\">…”.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> Regarding the action prohibited by the criminal norm set before the criminal type, they suggest that a simple analysis of the incrimination yields the result that the conduct of </span><span style=\"font-family:Arial; text-decoration:underline\">giving</span><span style=\"font-family:Arial\"> or </span><span style=\"font-family:Arial; text-decoration:underline\">permitting</span><span style=\"font-family:Arial\"> a gift or undue advantage that the subject makes to the public official is prohibited.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> Regarding the history of this criminal type with respect to the prohibited conduct, they add the following: “…</span><span style=\"font-family:Arial; font-style:italic\">It is worth taking this opportunity to point out that the relevant history in relation to this article begins with the pronouncement contained in Voto 461-91 of the Constitutional Chamber of the Supreme Court of Justice.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> In what is relevant, it essentially established that Article 343 of the Penal Code (later 345) cannot be interpreted without violating the principle of constitutional legality, in the sense that what the legislator meant is not \"permits\" but rather \"promises.\"</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> The same case within which this Voto of the Constitutional Chamber was ordered subsequently led to the issuance by the Third Chamber of the Supreme Court of Justice of Voto 183-95, which indicated, in what is relevant, that the Constitutional Chamber established that it is not legitimate to read \"promises\" where it says \"permits\"; but the truth is that it established nothing regarding the meaning of the words that make up the criminal type: it does not tell us what we should or should not understand from those words.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> And what the appellant maintains is, precisely, that when the Constitutional Chamber establishes that the verb \"permits\" cannot be substituted for the word \"promises,\" it is not excluding the \"offer\" or the \"promise\" as possible semantic content of the word \"gives\" set forth in the referred numeral of the Penal Code.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> Consulting various dictionaries proves the challenger right; such that it must be agreed that whoever promises, offers, or proposes a gift to a public official, present or future, so that the latter performs an act contrary to their duties (or incurs in any of the hypotheses of Articles 338 to 342 of the Penal Code) adapts their conduct to the hypothesis provided for and sanctioned in Article 343 of the Penal Code</span><span style=\"font-family:Arial\">…</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> The appellants reject this derivation made by the Criminal Cassation Chamber in its precedents, and suggest that the norm set before the type does not encompass the meanings of “propose, offer, or promise.”</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-weight:bold\">The ground must be upheld.</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold\"> </span><span style=\"font-family:Arial\">Indeed, the word “permits” cannot be given a criminal legal application as if it said “promises,” as this changes the meaning of the prohibition.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> The principle of criminal legality, contemplated in Article 39 of the Constitution and in Article 1 of the Penal Code, requires the judge to take great care not to assume legislative functions, which would well occur, for example, through amending eventual errors in the publication of a law, or promoting readings of the structure of the type that are aberrant from the conventional use of the terms.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> Attempting a reading, for example, of the verb “to give” based on far-fetched semantic elaborations, which could depart from the correct interpretation of the term from the conventional understanding of said verb, could lead to a substitution of the punitive objective of the criminal law, which aims to be understood by the recipients of the norm, and understood in such a way that the prohibition is obeyed. Thus, understanding the word “to give” as if it were “to promise” or “to offer” is an interpretation that contradicts the principle of legality, not only because it gives the semantic interpretation a twist that departs from the conventional use of said term, but also because it implies extending the scope of coverage of the criminal type beyond where the limits of what is punishable allow.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> To do so would be to incur in an extensive interpretation of the contents of the criminal type that is prohibited by the Political Constitution, which is inspired by several centuries of construction of criminal guarantees that have been developed to prevent this type of judicial action, which affect the legal certainty of the citizens of a Democratic and Social State of Law such as the Costa Rican one, according to the programmatic reading of Article 1 of the Political Constitution.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> The Third Chamber of the Supreme Court of Justice itself, in its Voto No. 580-F-91, expressed a criterion to the effect that the norm could not be given a content or meaning that the legislator had not foreseen: “</span><span style=\"font-family:Arial; font-style:italic\">III.- In the first ground of the appeal on the merits, Articles 1, 30, 31, 54, 343, and 339 of the Penal Code are alleged to be violated. The appellant affirms that the criterion of the Constitutional Chamber is not correct, since from the concordance of Articles 343 and 339 of the Penal Code it is deduced that the promise of a gift or undue advantage, made to a public official for them to perform an act contrary to their duties, or to not perform or delay an act proper to their functions, constitutes a typical, unlawful, and culpable act.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> The reasoning is not admissible, in the first place because the verb used in the cited Article 343 does not comprehend the promise (gives or permits), and even if the legislator had intended to include the promise, according to the relationship made with Article 339 ibidem, the truth is that what the norm says must prevail and not what the legislator could have wanted without indicating it in the norm, in accordance with the constitutional principles of legality and specificity.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> Secondly, an interpretation different from that of the Constitutional Chamber made in Judgment No. 461-91 of February 27, 1991, would not be admissible either, insofar as it indicated that the cited Article 343 did not include the promise, based on Article 13 of the Law of Constitutional Jurisdiction, which establishes that the jurisprudence of that Chamber is binding </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">erga omnes</span><span style=\"font-family:Arial; font-style:italic\">. For all the foregoing, the ground must be dismissed</span><span style=\"font-family:Arial\">”.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> There are other votes that dissent from the criterion just cited, such as Voto 183-1995, when it interprets that the concept “gives” encompasses the meanings “propose, promise, and offer,” however, these types of criteria oppose an application</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> of criminal types in conformity with the constitution.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> </span><span style=\"font-family:Arial; font-style:italic\">The appellants recall a dissenting vote by Dr. [Name105], in his role as cassation judge, who in a vote of the former Cassation Court</span><span style=\"font-family:Arial\">, Voto No. 27-2004, held the following: “…</span><span style=\"font-family:Arial; font-style:italic\">VI.-DISSENTING VOTE OF JUDGE [Name81]: The undersigned judge respectfully dissents from the majority insofar as it considers that the crime for which the accused was convicted was consummated, considering that it remained in the stage of attempt, in accordance with the description of the criminal type of penalty for the corrupter, established in Article 343 of the Penal Code. For the foregoing, he considers that although the accused gave a gift, he did so in a police operation, which fundamentally must be considered to have had the purpose of verifying the illicit action that the accused had incurred by offering a gift to an attorney of the Constitutional Chamber. The fact that this was a controlled operation prevents one from being able to speak properly of a consummation of the crime, and it must be considered that one is before an attempt, since the offering of the gift supposes an act of execution of the crime. This criterion was already outlined in the note by Magistrate [Name116] to Voto 461-91 of February 27, 1991, of the Constitutional Chamber, the Third Chamber of the Supreme Court of Justice having mentioned it in various rulings, although it has fundamentally handed down sentences related to acts similar to the present one considering that a consummated crime occurs, by means of the use of the term “gives,” considering that to give, according to the dictionary of the Royal Academy, has among its meanings to offer. This is the criterion that said Chamber has maintained since Voto 183-F-95 of March 24, 1995, to which it refers. </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">This judge, however, considers that regarding the term to give, the concept used in common language must be followed, which is a consequence of the principle of legality, and it must be considered that to give is to deliver, which is the first meaning found in the Dictionary of the Royal Academy. However, the action of offering a gift cannot be considered as unpunished, since it already implies the carrying out of an act directed directly at the consummation of the crime, which could not be consummated due to the fact that ultimately the gift was rejected by the attorney of the Constitutional Chamber and an operation was even set up to catch the accused (Art. 24 of the Penal Code).” (the underlining is not from the original)…”.</span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">&#xa0;</span><span style=\"font-family:Arial\"> The thesis set forth in this dissenting vote is the one that this Chamber endorses, in the sense that the verb “</span><span style=\"font-family:Arial; font-style:italic\">to give</span><span style=\"font-family:Arial\">” must be granted the meaning of common language, and that therefore its content would be identical to “</span><span style=\"font-family:Arial; font-style:italic\">to donate</span><span style=\"font-family:Arial\">” or “</span><span style=\"font-family:Arial; font-style:italic\">to deliver</span><span style=\"font-family:Arial\">,” which are the first meanings in the Dictionary of the Royal Spanish Academy of the Language.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> The reform of Article 345 of the Penal Code, through Law 8630, was aimed at clarifying this incongruity in the legislative construction, and it was thus, in the year 2008, that the criminal type was constructed to read:</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> “Article 345.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> Penalty for the Corrupter: The penalties established in the five preceding articles shall be applicable to anyone who gives, offers, or promises a public official a gift or undue advantage.”</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> The foregoing demonstrates the legislator's will to correct a typo included in the previous construction of the incrimination, which made its application impossible for cases of a remunerative offer or promise, which should have been considered in the crime of Penalty for the Corrupter, both because of the way in which these events occur in the real world, and because this construction also covers more probable hypotheses of commission.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> [Name98]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial\">is accused of </span><span style=\"font-family:Arial; font-style:italic; text-decoration:underline\">promising a gift</span><span style=\"font-family:Arial; font-style:italic\"> to [Name66]</span><span style=\"font-family:Arial; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-style:italic\">, [Name65]</span><span style=\"font-family:Arial; font-style:italic; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial; font-style:italic\">, [Name4]</span><span style=\"font-family:Arial; font-style:italic; -aw-import:spaces\">&#xa0;&#xa0;&#xa0; </span><span style=\"font-family:Arial; font-style:italic\">, and [Name67]</span><span style=\"font-family:Arial; font-style:italic; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; font-style:italic\">, all of them public officials, in order to perform acts proper to their functions in relation to a contract in which the Public Administration is interested.</span><span style=\"font-family:Arial; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial; font-style:italic\"> </span><span style=\"font-family:Arial\">From this perspective, it must be declared that such actions do not constitute the crime sanctioned by the rule of Article 343 of the Penal Code at the time of the commission of the criminal act, nor any other of the crimes established in the Penal Code, not only because that is not the content of what is prohibited, but because, as has already been resolved in relation to the other co-defendants, it has not been possible to determine what the specific action they had to carry out was, or if the gifts were as a reward for a completed act.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> In other words, there is a favorable effect on the legal positions of [Name98]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial\">regarding the indeterminacy of the acts charged to the alleged individuals affected by the corrupt act, which undoubtedly must concur to produce the nullity of the judgment and declare the acquittal. Furthermore, and this is consistent with a democratic criminal law, it cannot be considered that the promise of the gift is independent of the delivery of the gift, since both moments are univocal and inseparable for the corrupter, who wishes to affect the legal interest protected under criminal law in crimes against probity.</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> In this sense, also</span><span style=\"font-family:Arial\">&#xa0;</span><span style=\"font-family:Arial\"> for this reason it is appropriate to order the</span><span style=\"font-family:Arial; font-weight:bold; font-style:italic\">&#xa0;</span><span style=\"font-family:Arial\"> acquittal in favor of [Name60]</span><span style=\"font-family:Arial; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial\">.</span></p><p style=\"margin-top:0pt; margin-bottom:0pt; line-height:150%\"><span style=\"font-family:Arial; font-weight:bold; color:#010101\">XII.- </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101\">THE APPEAL OF THE ACCUSED [Name117] IS RESOLVED</span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101\">BY MEANS OF A WRITING AUTHENTICATED BY ATTORNEY [Name118]</span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101\">IN EXERCISE OF HIS MATERIAL DEFENSE.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> The accused [Name68]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0;&#xa0; </span><span style=\"font-family:Arial; color:#010101\">appeared before this Chamber to file a cassation appeal and subsequently a conversion of his appeal into an appeal.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Of the grounds raised by the accused [Name74], this Court of Appeal will proceed to resolve, in the first instance, those defects that constitute fundamental reasons for decreeing the nullity of the judgment and the acquittal of the accused. </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101\">First Section.- Defects that by themselves imply the nullity of everything resolved.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> </span><span style=\"font-family:Arial; font-weight:bold; text-decoration:underline; color:#010101\">A.</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; font-weight:bold; color:#010101\"> The cause is time-barred.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> In the First Ground of the appeal by [Name21], an erroneous application of the statute of limitations rules enshrined in Articles 31, 32, 33, 361, subsection a), and 369 of the Code of Criminal Procedure is alleged. It begins by pointing out that the Court rejects the statute of limitations exception filed by the defense of [Name21].</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> However, the dissenting vote of Judge [Name8]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">disagrees with this criterion and upholds the exception, and refers to the reasoning set forth in the dissenting vote.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> It considers that the substantive issue consists of the application of Article 62 of Law No. 8422 of October 6, 2004, called the Law against Corruption and Illicit Enrichment in Public Office, hereinafter LCC, which entered into force on October 29 with its publication in La Gaceta Number 212 of that day.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> According to the Court itself, had it not been for that rule, the cause would already be time-barred, which is why it proceeds to question this interpretation that incorrectly applies the statute of limitations rules of the procedural law and of the LCC itself, as well as some aspects of the erga omnes jurisprudence of the Constitutional Chamber.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> According to the majority vote, since the statute of limitations period is not reduced by half, as established in Article 33, first paragraph of the procedural law, by presumably applying the provisions of Article 62 of the LCC, the criminal action would prescribe on November 30, 2007, and not on May 30, 2006.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> It therefore considers that what is important is to determine if that Article 62 LCC is applicable to the case.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> In this regard, it begins its argument with the idea expressed in the majority vote, at folio 792, where it is stated that they do not share the defense's thesis to the effect that it is a reduction of time limits for the duration of the process and not an issue of statute of limitations. The difference is of interest, because if it is a control of the duration of the process, we would be in the presence of an issue of acquired rights by the accused and not facing issues of statute of limitations or the application of procedural rules.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> The control of the duration of the process is a human rights issue, insists the defendant [Name74], which would derive from Article 41 of the Political Constitution, insofar as it posits swift justice.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Increasing the time limits for the control of the duration of the process to the detriment of the accused would indeed configure a retroactive application of the law to the detriment of acquired rights.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> However, the female judges of the majority vote depart from the defense's criterion, which in turn rests on what was raised in Voto 4397-99 of 4:06 p.m. on June 8, 1999, which in its Considerando VI, which is erga omnes, by explaining that those terms are not properly of statute of limitations but rather a reduction of the time limits for the processing of the procedure according to the idea of controlling its duration.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> But even rejecting this criterion, which would prevent retroactivity to the harm of the acquired rights of the defendant, there would be another criterion, also constitutional, which holds that statute of limitations rules cannot be applied retroactively unless the legislator expressly provides for such retroactive application. According to the appellant, the Constitutional Chamber, in its Voto 4397-99, clearly established that laws govern for the future, and therefore their backward application would only be valid by express mandate of the law.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> In criminal procedural matters, it would not be prohibited for the law to be applied retroactively as it itself establishes solely for pending cases.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> The ground must be upheld.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Article 62 of the Law against Corruption and Illicit Enrichment in Public Office does not expressly have an indication that it must be applied in pending causes or those to be initiated in the future, and therefore it must be interpreted in a manner consistent with the Political Constitution and the erga omnes jurisprudence of the Constitutional Chamber, that the aforementioned regulation will be applicable in the future. That is, Article 62 of the LCC would only be applicable to causes initiated after October 29, 2004.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> If it was the legislator's will to cover causes pending at the date, it should have expressly indicated so, so that the effects of the later law could radiate to all causes initiated before the law's entry into force.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> The aforementioned law contains no transitory provisions or explanation in the “Statement of Motives” that provides arguments to consider a retroactive application of its provisions.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Rather, the legislator's wording allows one to derive an interest in regulating for the future, which is why verbal forms such as “will prescribe” or “will govern” are used, which are provided for in the Spanish language to imply the future. If the legislator's will were otherwise, it should have been clearly expressed, alluding to the retroactive effects of the later procedural law.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> Judges, indeed, are barred from performing functions proper to the legislator, and could not interpret effects that the procedural law expressly does not contain.</span><span style=\"font-family:Arial; color:#010101\">&#xa0;</span><span style=\"font-family:Arial; color:#010101\"> The latter, above all, when the later procedural law could have retroactive effects contrary to the legal positions of the defendant, limiting their right of defense, their rights of intervention in the process, their right to release from custody, or, as now, to validly allege the lapse of the statute of limitations for the criminal cause. Procedural laws are designed to govern for the future, and therefore in good logic, and based on their interpretation in accordance with the Political Constitution, only those procedural provisions that have a more benign effect on the legal positions of the defendant would have retroactive effect. In the present case, the accused [Name74]</span><span style=\"font-family:Arial; color:#010101; -aw-import:spaces\">&#xa0; </span><span style=\"font-family:Arial; color:#010101\">testified after October 29, 2004, however, the cause had been initiated before that date and its provisions were not applicable to it, unless there is an express legislative rule, which does not exist in the present case.

It is for the foregoing reasons that the statute of limitations for [Name68] would have occurred only on May 30, 2006, and prior to the finality of the declaration of complex proceedings in this case in July of that year or the convening of the preliminary hearing in September 2007. Both procedural moments are subsequent to the date on which the case should have been declared time-barred. Regarding the issue of the declaration of complex proceedings of the case, this Chamber had already ruled against the retroactive effects given to the declaration of complex proceedings of the case. The reasoning supporting this conclusion has already been expressed when resolving the appeal of Dr. [Name2], to which reference is made to avoid unnecessary reiteration. It is therefore appropriate to declare the case brought against [Name68] time-barred and to acquit him of the crime of Illicit Enrichment that was being attributed to him.

B. Spurious evidence. In the second ground of the appeal filed by [Name68], the erroneous application of the rules pertaining to the lifting of bank secrecy is raised, such that the bank evidence used to demonstrate the deposits in his favor is unlawful and unusable for a conviction. He argues that his defense counsel objected to the bank evidence originating from the Bahamas. The Court expressly ruled on this issue in Considerando II. H. 1. As it explains, said bank evidence originating from the Bank of San [Name6] in the Bahamas requested in the CCSS-Fischel case, and provided as evidentiary material in this proceeding, according to evidence items 543, 544, and 545, had been requested exclusively for the case called CAJA-Fischel and not for this proceeding. He indicates that an alteration of the English translations eliminated that express obstacle that the evidence would only be used in the CAJA-Fischel case, and it is intended to prove with it the receipt of certificates of deposit by [Name74] with funds originating from ALCATEL and Servicios Notariales QC., which were deposited in BAC BAHAMAS BANK LIMITED in that country. The defense theory is that there was no judicial order to lift bank secrecy for the ICE-ALCATEL case. The Court errs, according to him, because it affirms that the evidence comes from the Bank of San [Name6] in the Bahamas, and that is his first false assertion. It is not the Bank of San [Name6] in the Bahamas; it is an autonomous Bank, registered in that place and not a branch of BAC San [Name6], as the majority Court maliciously tries to make it believed. It would involve two different banks and not a simple branch of the same. He alleges that a letter rogatory to the Bahamas was needed to request the bank evidence. If it had been the Bank of San [Name6] itself, it would have been enough to request the information from BAC San [Name6] in the country.

His claim is well-founded and the ground must be granted. The bank domiciled in the Bahamas is not a simple extension of BAC San [Name6], but rather a bank that has been founded according to the rules of another country, so the procedure to obtain bank information from said institution must be done through official channels and, of course, with a judicial order to lift bank secrecy. According to the majority vote (p. 874), the aforementioned bank evidence obtained for one criminal case could be used for other criminal cases different from those for which it was originally obtained, with an interpretation that would lead to the absurd criterion that the Public Prosecutor's Office (Ministerio Público) would only need to obtain judicial authorization for a single lifting of bank secrecy to use said information in countless criminal cases, even when decontextualized from those where the intervention was originally obtained. It is evident that this type of sensitive information must be requested, ordered, stored, used, and interpreted in a manner compatible with constitutional norms. One could not pretend that the value and essential content of the constitutional right to privacy of this type of information be reduced, solely for an extended interest of the prosecuting body, which also intends the use of this information without any context of a prior investigation, with a judicial order not expressly for said obtaining of information, and with effect on criminal cases not even open when the original criminal investigation was decided. The utility value of bank evidence must be enabled by a whole process of request, obtaining, introduction, and judicial evaluation that is contextualized in the criminal case where it has been requested.

The latter is fully compatible with an interpretation of the right to informational self-determination in the case of financial information, and regarding the effects of said information for the demonstration of a specific criminal fact. The order must assess the necessity, suitability, and proportionality in the strict sense of the information that will be requested, taking into account the nature of the case, the sensitivity of the information, and the suspicion assumptions available at the procedural stage in which the obtaining of bank evidence is decided. Furthermore, the request must be directed expressly to the banking institution that has the information in its databases. The right to informational self-determination contemplated in the constitutional program of Costa Rica, based on Article 24 of the Political Constitution (Constitución Política), in full congruence with the erga omnes jurisprudence of the Constitutional Chamber (Sala Constitucional), requires a certain threshold of suspicion of the commission of an unlawful act and a weighing of the proportionality of the measure that affects fundamental rights, in order to proceed to obtain the information. This must be assessed in each specific case, and therefore the request for the lifting of bank secrecy cannot be generic and decontextualized from the case in which it is to be used.

It is evident, then, that if the evidence obtained in the Bahamas cannot be used in the present case, the evidentiary connection with the deposits for the benefit of [Name74] should be suppressed for having affected constitutional guarantees. Now then, the alleged correspondent relationship or reciprocal representation contract between BAC San [Name6] and the Bahamas Bank Limited is another important question that has not been demonstrated in the specific case, and it is also not known if the mentioned banks can exchange available information from their accounts by mere internal administrative request for the normal course of their financial activities. The judgment states that the order for the lifting of bank secrecy of Bac San [Name6] was sufficient to lift bank secrecy also in the Bahamas, that is, in another territorial jurisdiction, and, of course, with other legal norms in force. The Bahamas Bank Limited, as the appellant correctly states, is not part of the Costa Rican banking system, so the lifting order from the national system cannot affect a banking institution domiciled abroad. Arguing in that sense would lead one to think that an order issued for the national banking system would have to affect international banking in any geographic context, which does not accord, for example, with the different banking regulations that govern financial activity in the various countries of the world. Sending transfers from Costa Rica to another country does not convert the banks receiving said transfer into part of the national banking system. That they receive transfers corresponds, of course, to a commercial practice that has been becoming standardized with the objective of avoiding damages and harm to bank clients and to maintain the functionality of the international transfer system.

This being the case, the evidence obtained without any correspondent contract between the banks, and without the lifting of bank secrecy, makes the information obtained unlawful and unusable as evidence in the criminal proceeding under examination. The effects already considered from the appeal filed by the defendants [Name66], [Name69], [Name60], and [Name68] also apply. (Appeal visible on folios 17264 to 17278 of Volume XXXVI), they raise in their brief, authenticated by attorney [Name119], the nullity of evidence item 588. This appeal was analyzed on the occasion of the study of the challenge by attorneys [Name102] and [Name103] on behalf of Mr. [Name98]. As stated there, the arguments to analyze this legal problem have already been explained above, when resolving the appeal filed by Dr. [Name2] (A-1). This being the case, it is appropriate to apply to the defendant [Name120] the same effects that this determination had for the defendant [Name5]; the nullity of documentary evidence No. 588 and all evidentiary elements that depend on it is declared; the nullity of the criminal conviction judgment issued against [Name21] is declared, and in its place he is directly acquitted of all penalty and responsibility. […]

C. A repealed criminal offense was applied. The ninth ground of the appeal of [Name21] discusses the validity of the criminal offense applied in the specific case to convict him for the conduct of Illicit Enrichment. According to the thesis of [Name74], Article 346, subsection 3) of the Penal Code (Código Penal) was tacitly repealed by Article 32 of Law 6872 of June 17, 1983, called the Law on Illicit Enrichment of Public Servants (Ley sobre Enriquecimiento Ilícito de los Servidores Públicos). According to this, the 1983 legislation would be a special law over the general regulation of the Penal Code, therefore repealing the criminal offenses that had been included in said Code and that form part of the new legislation. Article 26 of this 1983 law has several specializing elements. First, the penalty ranging from six months to six years, and, second, that it threatened with penalty acts carried out by the former official within the year following the cessation of the position. Article 26 is, by all accounts, much more specific and contains elements that cover more varied conduct, considering illicit enrichment not only the acquisition of goods of any kind or nature, but also a generic provision that absorbs any receipt of monies or goods.

The ground must be granted. It is evident that the criminal provision of Article 346 of the Penal Code was repealed by Article 26 of the 1983 Law, which not only contains a description of the action of Illicit Enrichment but also adds specializing circumstances that allow covering more conduct of receipt of goods, services, monies, etc., which are threatened with a greater penalty. It is not a matter, as the Majority Court says, of two distinct conducts that can coexist because they cover different typical assumptions; it is a matter of two figures of Illicit Enrichment, where one is general and the other is special, contemplated in a later law, which according to the rules of criminal interpretation would repeal the general law, and obliges the application of the special law. The Constitutional Chamber (Sala Constitucional) itself, in its Voto No. 11584-2001, considered that some of the subsections of Article 346 were repealed by Law No. 6872 of 1983, and that it should be expressly verified by the judges, in each case, whether or not to apply said subsections, as is indeed done now when qualifying criminal offense 346 of the Penal Code as repealed and inapplicable to the case against [Name68]. Now then, having been interpreted that the applicable law is Article 26 of Law No. 6872 of 1983, it must be taken into account that subsections a) and c) of that criminal offense were declared unconstitutional by the Constitutional Chamber in Voto No. 1707-95 at 15:39 hours on March 28, 1995, and therefore they would not be applicable to the specific case, and the actions of [Name74] would become atypical. It is not until the entry into force of Article 45 of Law 8422 of October 6, 2004, effective as of the 29th of that month, that the increase of assets in the exercise of office is newly criminalized, which is not applicable to the accused acts because it is a substantive norm effective after those acts, according to Article 11 of the Penal Code. This being so, the criminal offense for which Illicit Enrichment is accused is repealed, and therefore it is appropriate to annul the conviction judgment and to acquit [Name68] of all penalty and responsibility for the facts imputed to him.

However, there exists another reason, alleged in the tenth ground of the appeal, which produces the nullity of the judgment, due to an application of Article 346, subsection 3) in violation of the binding interpretation of the Constitutional Chamber. If this article were considered valid, which it is not, by virtue of the preceding 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 Law of Constitutional Jurisdiction (Ley de la Jurisdicción Constitucional). According to what subsection 3) of the cited Article 346 of the Penal Code stipulates, any gift presented or offered in consideration of the official's office becomes unlawful, even if he has not performed any lawful or unlawful action, proper or contrary to his functions. The mere receipt of the gift is already criminal. The Constitutional Chamber, since the indicated vote 1707-95, in its Considerando III, required that the prosecuting body must demonstrate the illicit origin of the public servant's assets and that it is not enough to prove the receipt of the monies, much less to oblige the accused to demonstrate their lawfulness. For this, the Chamber based itself on what was explained in Voto 5171-93 and held it without any doubt, declaring unconstitutional the norms of Law 6872 that had replaced the crime of illicit enrichment. But the Constitutional Chamber was even clearer in its Voto 11584-01 at 8:53 hours on November 9, 2001, when it took cognizance through an optional legislative consultation of the draft Law against Corruption that gave rise to Law 8422. At the end of Considerando IV, the Chamber expresses, in the writing of Magistrate [Name121], that the Constitution is violated by attempting to penalize the official for the mere increase of assets WITHOUT DEMONSTRATING THAT SAID INCREASE HAS A NEXUS WITH AN ILLICIT ACTIVITY, thereby infringing the principle of innocence by indirectly obliging him to prove the origin of his assets.

In this aspect, the appeal filed must also be granted. It is not enough to demonstrate that the official's assets have increased, but rather it must be demonstrated that the cited increase was the product of an illicit activity, because otherwise there would be a reversal of the burden of proof, and it would have to be the official who must demonstrate the origin of the cited asset increase. To maintain that this is possible goes in direct contradiction with the precedents of the Constitutional Chamber cited by the appellant, and provides yet another reason to produce the nullity of the judgment. [...]

XV.- THE APPEAL FILED BY THE PUBLIC PROSECUTOR'S OFFICE (MINISTERIO PÚBLICO) IS RESOLVED.- All fundamental rights are born limited because they are exercised within society; however, the degree or magnitude of their affectation is historically and spatially relative; that is, their scope or the establishment of restrictions varies over time and according to each legal system, in accordance with criteria of public order, morality, good customs, and the rights of third parties (HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Vol. II, p. 291). In domestic law of the homeland, the Political Constitution in Article 28 establishes an unbreakable limit: Article 28.- No one may be disturbed or persecuted for the expression of their opinions or for any act that does not infringe the law. Private actions that do not harm public morality or order, or that do not harm a third party, are outside the action of the law. Consequently, despite fundamental rights being subject to certain restrictions, only those necessary to make possible the exercise of democratic and constitutional values are legitimate; it is not sufficient that it be useful, reasonable, and opportune; there must be an imperative social necessity, hence, it is said that only limitations aimed at satisfying a public interest are justifiable, always opting for those that restrict the protected right to a lesser extent (Cf. HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Vol. II, p. 291). The Public Prosecutor's Office (Ministerio Público) raises its disagreement because a piece of evidence provided to the proceeding was declared unlawful (Nos. 563, 564, 578, and 579) and essential from its point of view, but the indifference to the issue of the potential affectation of fundamental rights is striking, since even though the sole ground formulated ("erroneous interpretation of the constitutional norm of Article 24 of the Political Constitution and non-application of numeral 7 of the same normative body") contains in its title a reference to the constitutional norm that protects the right to privacy, the content of its argument seeks to legitimize an interpretation regarding the application of the Treaty of Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (Tratado de Asistencia Legal Mutua en Asuntos Penales, T.A.L.M.), completely alien and opposed to the protection of that right as it has been regulated in our legal system, even though it is clear that the criminal proceeding of interest will take place within the national territory, it being obvious that in that context, respect for the principle of legality established in Article 1 of the Code of Criminal Procedure (Código Procesal Penal) was imposed: "No one may be sentenced to a penalty nor subjected to a security measure, except by virtue of a proceeding processed in accordance with this Code and with strict observance of the guarantees, faculties, and rights established for individuals." The failure to observe this rule of guarantee established in favor of the defendant cannot be used to his detriment." And in an action consistent with the provisions of Article 63 of the same code: "In the exercise of its function, the Public Prosecutor's Office shall adapt its actions to an objective criterion and shall ensure the effective fulfillment of the guarantees recognized by the Constitution, the International and Community Law in force in the country, and the law..." (bold text not in original), because ultimately, applying the T.A.L.M. did not have to be incompatible with respect for due process, the right to a defense, the fundamental rights enshrined in the Magna Carta. This Chamber was able to verify that the Criminal Court for Treasury and Public Function, through a resolution issued at sixteen hundred hours on October 7, 2008, when issuing the order to open trial, accepting a defective procedural action filed by the defense of the defendant [Name5], ordered the rejection of the evidence of interest here to the Public Prosecutor's Office. On that occasion, the judge recognized that the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama "... constitutes an international legal tool to streamline precisely the cooperation among the States Party to it, in matters related to criminal law. One of the specific objectives of this regulation is to avoid processing this mutual legal assistance through diplomatic channels; such a situation determines that the norms of the Bustamante Code or other general provisions for international cooperation are not applicable to the case, as a special norm exists... The provision presumes a more expeditious, informalist (in administrative aspects, not in judicial aspects), and agile procedure, benefiting the right to prompt and complete justice; dispensing with diplomatic channels and the formal rigidities established in the Convention on Private International Law." (Cf. folios 10570 and 10571).

But even recognizing the importance or advantages of the instrument, its purposes of international cooperation in the processing of criminal cases, and the desire to avoid impunity for criminal conduct; it later reflects and specifies core points on the subject. It returns to the content of Article 24 of the Political Constitution and establishes: "As can be seen, the norm guarantees the right to the inviolability of private documents and the communications of the inhabitants of the Republic... An initial detailed approach to the subject makes it evident that the provision indicates that the documents (the subject that now concerns us) and records protected under that constitutional principle are private ones, which generates a direct effect on the case, since the jurisprudential precedents put forth by the Prosecution to justify its action are cases of public documents, which as such do not present any special regulation in our national regulation, except for matters of authenticity, which is not the subject of discussion... A clear demonstration of the truthfulness of what has been said is that the Costa Rican Code of Criminal Procedure, regarding publicly accessible documents, allows direct investigation by the Public Prosecutor's Office without any judicial intervention, since, as their name indicates, they are openly accessible documents without any protection of the right to privacy" (Cf. folio 10575).

After reflecting on the precautions provided by the legislator for enacting a regulation that limits the fundamental right to privacy (a law approved by a qualified majority), it mentions Article 201 of the Code of Criminal Procedure, which establishes: "Regarding the interception and seizure of communications and correspondence, it shall be in accordance with the provisions of the special law referred to in Article 24 of the Political Constitution." This regulation is precisely the Law on the Registration, Seizure, and Examination of Private Documents and Intervention of Communications, which requires the issuance of a duly reasoned jurisdictional resolution to admit any invasion into the sphere of citizens' privacy. The judge highlights that during the preliminary hearing, it was noted that treaties, according to Article 7 of the Constitution, have a higher rank than the law, but that this superiority does not extend to the Political Constitution, whose Article 24 requires the issuance of an express and reasoned resolution. And he adds: "The prosecutorial representation has maintained that said instrument is superior to the Political Constitution itself, which we must emphatically reject. The Constitutional Chamber has held that international instruments on human rights have validity superior to the Constitution itself insofar as they integrate the constitutional framework (See, among others, votes 68-98, 1319-97, and 2313-95, all from the Constitutional Chamber), but it is not all instruments, only those that have that specific normative framework, which is the subject of human rights" (Cf. folio 10576). A character which the judge correctly denies to the T.A.L.M., who adds: "Furthermore, the content of granting them an efficacy superior to the constitutional framework is not to derogate what has already been established by the internal charter, but to allow a better regulation or a broadening of the spectrum, which is not the scenario. (...) In the case of private information, which by constitutional provision required a judicial order to access, the logic within the constitutional framework was that the Criminal Court of the Second Judicial Circuit of San [Name6], acting as the Criminal Court for Treasury and Public Function, was the one called to order the lifting of the privacy of such information and request (through the Office of the Attorney General of the Republic) the Panamanian authorities to, in application of the referenced treaty, send it to the corresponding Judge in that nation to analyze whether, in their judgment, it was appropriate (in accordance with their domestic law) to order access to the information protected by the right to information" (Cf. folio 10576).

The lawfulness of evidence numbers 563, 564, 574 to 581, 584, and 585 became controversial again at the start of the oral and public trial, when the Public Prosecutor's Office attempted to revive it and incorporate it into the evidentiary material of the adversarial proceeding. It was alleged that the judge at the intermediate stage had been mistaken in classifying as illegal the evidence obtained from financial entities and the Public Registry of the Republic of Panama, related to Inversiones Denisse S.A. and linked to the accused [Name5], from Banco Alemán Platina, the company NCR Holding S.A., and UTS Holding S.A. associated with the defendant [Name122] (R.I.P.); insisting on the validity of the procedure, carried out as established by the T.A.L.M. However, the trial court, upon resolving the objection, denies it, through the resolution issued at eight hundred hours on May 14, 2010, using as support the stipulations of Article 24 of the Magna Carta, i.e., the right to privacy and the secrecy of communications, explaining that even though the constitutional precept opens the possibility for an exception to such right, it required the enactment of a law (approved by two-thirds of the deputies of the Legislative Assembly) which we know corresponds to Law No. 7425, the Law on the Registration, Seizure, and Examination of Private Documents and Intervention of Communications, which requires a duly reasoned order issued by a judge of the Republic, including an examination of proportionality (on the necessity of intrusion into the private sphere to ascertain the truth of the facts) and the verification of an indication of criminal activity.

The cited resolution states: "... the impartial, independent, and previously constituted judge is the competent body to make the decision to affect the right to privacy of the holder (as the Constitutional Chamber has also interpreted, among others, in resolution No. 1427-1996). It is not, then, the function, nor is it authorized, for the representatives of the Public Prosecutor's Office, nor the Attorney General of the Republic, to request and access confidential information about individuals. As interpreted from the aforementioned constitutional norm, the system of guarantees in force in Costa Rica determines that the only competent body to weigh and order the interference in the sphere of individuals is a Court of Justice of the Republic" (Cf. folio 13376, Volume XXVII).

Further on, it is stated: "The national judge cannot ignore the verification of the guarantees in force in Costa Rica, not even when the investigation has been carried out outside the national territory or when, as in the present case, information from abroad is requested. In that sense, the Constitutional Chamber, in ruling No. [Telf3], warns of the importance of respecting the mechanism of veracity and authenticity of the content of the documents requested from abroad, precisely in function of our constitutional guarantee of due process, asserting that the effects of the chain of custody in the specific case must be assessed for the purposes of establishing the legality of the production and introduction of evidence in the proceeding" (Cf. folio 13377 verso, Volume XXVII).

In short, the Trial Court recognizes, in a criterion that this Court fully endorses, that obtaining private evidentiary elements originating from financial entities domiciled abroad requires compliance with the same guarantees foreseen and required to obtain that information if such sources were located within the national territory. Consequently, the jurisdictional order being part of the legal conditions imposed to access bank accounts, operations, and any other private financial data, it constitutes a mandatory requirement for both national and foreign sources; emphasizing that it is not a mere formalism, but a guarantee of due process that entails an assessment of the proportionality of the affected interests versus the investigation (cf. folios 13378 front and verso, Volume XXVII). We see the Public Prosecutor's Office testing, depending on the stage, various theses, always seeking the protection and legitimization of evidence that it processed in a more than incorrect, illicit manner; a situation that ultimately generated a state favorable to the interests of the defendants and determined—to a large extent—their acquittal in the criminal aspect (when the reproach was linked to that evidentiary element).

Their arguments were rejected one by one; during the intermediate stage: (i) it alluded to jurisprudence referring to public, not private, documents; absolutely useless to support its position; (ii) it asserted a superiority of the Treaty over the Constitution; unacceptable (except in matters of human rights). Later, in the plenary phase, it insisted on the legality of the procedure, executed in accordance with the T.A.L.M. However, and despite the fact that this Chamber does not share the opinion of the judge at the intermediate stage on the necessity for a Costa Rican criminal judge to send the request to a Panamanian judge to also examine the legal appropriateness of the petition (for it is clear that the procedure is different); there is affinity and coincidence on a core issue in both resolutions: the legal requirement in our country for an express and duly reasoned resolution by a national guarantees judge, weighing and ordering (or denying) said diligence, to the Public Prosecutor's Office. In the event that the request of the prosecutorial body had been affirmatively resolved (with the judge agreeing to the lifting of banking secrecy); the Public Prosecutor's Office then had to (with the resolution authorizing the invasion of the defendants' privacy) follow the procedure as provided in the T.A.L.M.; that is, present the request for judicial assistance to the Office of the Attorney General of the Republic of Costa Rica (central authority at the local level); for the Attorney General's Office to forward the Public Prosecutor's Office's request to the National Director for Treaty Execution, and from there it be sent to the Procuraduría General de la Nación (central authority in Panama), then passing to the Anti-Corruption Prosecutor's Office, which notifies the Panamanian financial entities to collect the pertinent information. Clarifying that in Panama, as provided for in its Political Constitution, the competent authority to lift banking secrecy is the Public Prosecutor's Office, unlike in our country.

In short, this Court shares the view that, as established by the accusatory principle and as claimed by the Public Prosecutor's Office in its challenge, the acts of investigation correspond to the prosecutor and it is the prosecutor who, after requesting the guarantees judge and obtaining from them the duly reasoned resolution authorizing that investigative diligence, must request the Office of the Attorney General of the Republic to forward the request to the National Director for Treaty Execution (in the sub examine, from Panama), and not directly the guarantees judge.

But admitting this point as correct does not validate or make disappear the absolute defect they incurred in, by managing the intervention or affectation of a fundamental right of a defendant, on their own and directly before the Office of the Attorney General of the Republic, completely ignoring the function assigned in the Political Constitution to the guarantees judge within the national territory.

As the Trial Court rightly points out when resolving this objection: "... the reasoned order of a Court of Justice of the Republic lifting the guarantee of privacy is what confers legitimacy and makes reasonable the interference of the prosecutorial power in that sphere of action of individuals. Far from consisting of a mere mandate, captured in a simple document, it represents the prohibition of arbitrariness and the subjection of public authorities to the Constitution, as it is the requirement of an objective weighing that, in that specific case, the requirements demanded by the legal system for such limitation are present. To act without having the described formal and substantial assessment is to act with one's back to the Fundamental Law and against the convictions and values shared by Costa Rican society" (cf. folio 13381). As indicated in another recital, this Chamber does not share the arguments of minority vote No. 499-2011 of the Third Chamber of the Supreme Court of Justice, despite recognizing the accusatory principle, which, in a marked way, determines our criminal procedural system; there is no doubt whatsoever about the leading and essential role assigned to the guarantees judge, who is called to intervene to weigh any investigative diligence that affects fundamental rights. In the sub judice, despite the validity and application of the T.A.L.M., which this Court fully endorses as a convenient and highly useful tool to combat crime and avoid impunity; it is not a legal instrument capable of depriving our Political Constitution of validity, which clearly and pristinely enshrines in Article 24: "The right to privacy, freedom, and secrecy of communications is guaranteed. Private documents and written, oral, or any other type of communications of the inhabitants of the Republic are inviolable. However, a law, whose approval and reform shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall establish in which cases the Courts of Justice may order the seizure, search, or examination of private documents, when it is absolutely essential to clarify matters submitted to their cognizance. Likewise, the law shall determine in which cases the Courts of Justice may order the interception of any type of communication and shall indicate the crimes in the investigation of which the use of this exceptional power may be authorized and for how long. It shall also indicate the responsibilities and sanctions incurred by officials who illegally apply this exception. Judicial resolutions protected under this norm shall be reasoned and may be executed immediately. (...)" (Bold text not in original). From that perspective, there is no excess in applying or interpreting Article 24 of the Constitution; because as has been argued, the intervention of the guarantees judge to assess the suitability, necessity, or proportionality of the measure is only required for the procedure within the national territory, where, let us not forget, the proceedings against the accused are being processed. That is, it is not a mandate that extends or is intended to impose on another State, in this case Panama, since we obviously lack the competence for that, and furthermore, their regulations differ from ours and, under them, only the action of the Public Prosecutor's Office is required to obtain the documentation of interest to the prosecutorial body in our country. In this regard, what is provided in 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." Thus, what corresponded to our country was for the Public Prosecutor's Office to request the guarantees judge to lift banking secrecy, as ordered by the Constitution, and upon obtaining approval, to address the Attorney General's Office to process the request before the Panamanian State; then, what pertained to Panama was to receive the petition from the Attorney General's Office, so that the Panamanian Public Prosecutor's Office would be in charge of collecting the requested information; this was the only thing legally expected, in compliance with the principle of territoriality and as a manifestation of the sovereignty of States. Of course, we do not share the criterion, in our understanding, biased and confused, of the appellants, when, seeking another argument, they affirm that derived from the principle of constitutional sovereignty, it is not possible to apply "Law No. 7425 on the Registration, Seizure, and Examination of Private Documents and Intervention of Communications" to other States.

In reality, the Trial Court had absolute clarity on this point; it has never been intended to apply Costa Rican domestic law to Panamanian law. This is evident from the following quote: "It is important to indicate that the so-called jurisdictional order is not directed at the body of the requested country, in this case the competent authority of Panama, to lift the privacy for the holder of that fundamental right; rather, it has the effect of guaranteeing this holder, internally, the prior review by the judge invested to perform that function. Thus, such authorization extends insofar as the concurrence of the requirements demanded by the national legal system is considered, under the principle of proportionality and due process. It is not, then, a limitation on Panamanian sovereignty, given that the jurisdictional resolution is not directed at the indicated State, but is a requirement inherent to our domestic law which must be respected" (Cf. folio 13380) And it adds: "... However, when that information is managed regarding a State such as Panama, the procedure to follow is the one established in the TALM. Hence, the requesting State must channel the request for public documents through the national Central Authority, while the requested State must supply them with the signature of the official in charge of maintaining custody of them and certified by the Central Authority, by means of a seal created for that purpose... Once those postulates are fulfilled, no other certification or additional authentication will be required. Documents certified in accordance with the provisions of the Treaty constitute admissible evidence of the truthfulness of the matters set forth in them, as regulated by Article 13, paragraph 3 of the TALM..." (Cf. folios 13380 verso and 13381 front). In short, it is not established in the judgment, nor does this Court endorse, that a judge of the Republic intends to impose national legislation or jurisprudence abroad; that argument is a distorted interpretation of what was decided by the Trial Court, and consequently, the antecedents they cite (jurisprudence from Italian and English cases) would be shared by this Chamber; for it is not projected in any way to apply Article 24 of the Constitution to the sister State of Panama. Our criminal procedural system chooses to embrace the principle of freedom of proof, provided in Article 182 of the Code of Criminal Procedure: "Facts and circumstances of interest for the correct solution of the case may be proven by any permitted means of proof, except express prohibition by law." By virtue of this, the parties have the right to prove the aspects of interest in the proceeding, with useful and pertinent proof, but with a single, insurmountable limit: its lawfulness, whether in the phase of obtaining and/or incorporation into the proceeding.

That is, within our democratic rule-of-law system, all evidence obtained, produced, collected, or introduced into the criminal proceeding outside the established legal canons must be excluded from consideration within the criminal proceeding, both for a private interest of the defense (in protection of their rights and guarantees) and for a superior public interest, because undoubtedly, the community must be interested in the correct application of the Law. As resolved by the criminal judge (at the intermediate stage) and the full court (at the plenary stage), the evidence identified with numbers 563, 564, 578, and 579 is what is called illicit evidence, that is, that evidence obtained, incorporated into the proceeding, or assessed in violation of fundamental rights, which entails prejudice for one of the parties in the proceeding. In the context of criminal procedural law, it concerns the injury to due process (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); but also the violation of other fundamental rights of every citizen, such as dignity, health, the privacy of the home, correspondence, communications, etc.

In Costa Rica, illicit evidence has no value, as established by Article 181 of the CPP: "Evidentiary elements shall only have value if they have been obtained by a lawful means and incorporated into the proceeding in accordance with the provisions of this Code.

(…)”. That is, the investigation of the real or material truth does not authorize the use of illegitimate evidentiary means, as has been reiterated by jurisprudence of the Sala Constitucional (votes No. 1739-1992, 1422-1994, [Telf4], 9127-2001), the Sala Tercera (votes No. 53-F-1992, 47-92-1992, 614-1995), and various pronouncements of the Criminal Cassation Tribunals (votes No. 66-F-1999, 422-2000, of the Second Judicial Circuit of San José). In the *sub examine*, as has already been reiterated, the Public Prosecutor's Office required, in order to access the evidence of its interest in this claim, a jurisdictional authorization that would weigh its lawfulness, its usefulness, and its relevance, because agreeing to it represented an invasion of a fundamental right (privacy) and this circumstance was fully known to the prosecuting entity, within a criminal procedural system like ours, markedly accusatorial in nature (where the accusation and investigation are the responsibility of the Public Prosecutor's Office) but where it was also decided to reinforce the role of the judge as controller of fundamental guarantees and rights, to approve or not certain evidentiary acts. The norms referring to the subject are numerous, highlighting Article 290 of the Criminal Procedure Code which establishes: *"The Public Prosecutor's Office shall carry out the diligences and actions of the preparatory investigation that do not require judicial authorization nor have jurisdictional content…"* And even clearer, numeral 277: *"The court of the preparatory procedure shall be responsible for carrying out jurisdictional advance of evidence, resolving exceptions and other requests typical of this stage, granting authorizations and, in general, controlling compliance with the principles and guarantees established in the Constitution, the International and Community Law in force in Costa Rica and in this Code… Prosecutors may not carry out properly jurisdictional acts and judges, except for the exceptions expressly provided for by this Code, may not carry out investigative acts"*. By reason of the foregoing, the appeal filed by the Public Prosecutor's Office is declared without merit." &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; and Notarial Services QC S.A.; Mr. José Miguel Villalobos Umaña, acting as defense counsel for Mr. [Nombre021]; Messrs. [Nombre001], [Nombre009], [Nombre015], and [Nombre021], in a filing authenticated by Mr. José Miguel Villalobos Umaña; Messrs. Alejandro Batalla Bonilla and José Luis Campos Vargas, acting as Special Judicial Attorneys-in-Fact for the company Alcatel-Lucent France (formerly Alcatel Cit); Messrs. Gilberth Calderón Alvarado and Miguel Horacio Cortés Chaves, acting as representatives of the Procuraduría General de la República; Mr. Juan Luis Vargas Vargas, acting as Special Judicial Attorney-in-Fact for Mr. [Nombre001], who is the President with powers of Unlimited General Attorney-in-Fact of the company named Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; Ms. Yamura Valenciano Jiménez, acting as defense counsel for Messrs. [Nombre001] and [Nombre004]; Mss. Criss González Ugalde and Maribel Bustillo Piedra, acting as representatives of the Ministerio Público; Messrs. Federico Morales Herrera and Erick Ramos Fallas, acting as defense counsel for Mr. [Nombre015]; and Mr. Germán Calderón Lobo, acting as representative of the Instituto Costarricense de Electricidad.

**WHEREAS:** **I.-** That by judgment number 167-2011, issued at 3:00 p.m. on April twenty-seventh, two thousand eleven, the Tribunal Penal de Hacienda y la Función Pública of the Second Judicial Circuit of San José, resolved: *"**THEREFORE:** In accordance with the provisions of Articles 39 and 41 of the 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, and 358 of the Código Penal; the rules in force on civil liability from the 1941 Código Penal; 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 resolved:* ***A) Reclassifications and Incidental Matters:*** ***A.1) Reclassifications:*** [sic] *unanimously, the acts charged against [Nombre021] are reclassified from the crime of Aggravated Corruption derived from Improper Bribery (Corrupción agravada derivada del Cohecho impropio) to the crime of Illicit Enrichment (Enriquecimiento ilícito); likewise, the acts attributed to [Nombre024], considered by the prosecution as constituting the crime of Illicit Enrichment, are reclassified to the crime of Receiving Stolen Goods (Receptación) provided for in Article 323 of the Código Penal. By majority, with the dissenting vote of co-judge Camacho Morales, the three crimes of Illicit Enrichment in material concurrence (concurso material) attributed to [Nombre007] are reclassified to one crime of Illicit Enrichment.* ***A.2) Statute of Limitations Defenses (Excepciones de prescripción):*** *unanimously, the statute of limitations defense (excepción de prescripción) filed on behalf of the accused [Nombre024] regarding the crimes of Receiving Stolen Goods and Real Concealment (Favorecimiento Real) provided for in Articles 323 and 325 of the Código Penal is upheld, and the statute of limitations defense filed on behalf of [Nombre007] for one crime of Illicit Enrichment, as reclassified, is rejected.* ***A.3)*** *By majority, with the dissenting vote of co-judge Camacho Morales, the statute of limitations defenses filed on behalf of [Nombre012] for four crimes of Illicit Enrichment and on behalf of [Nombre021] for one crime of Illicit Enrichment, as reclassified, are rejected.* ***A.4)*** *Unanimously, the defense of res judicata (cosa juzgada) filed on behalf of the accused [Nombre021] is rejected.* ***A.5)*** *By majority, with the dissenting vote of co-judge Camacho Morales, the objection (protesta) for defective procedural activity filed in defense of the defendant [Nombre021] and requested to be extended to the remaining accused concerning the bank evidence whose illegality is alleged and which was obtained in a criminal proceeding separate from this one, is rejected.* ***A.6)*** *By majority, with the dissenting vote of co-judge Camacho Morales, the remaining objections, incidences, and defenses (excepciones) related to the charged crimes and filed by the parties are rejected.* ***B) Acquittals and Criminal Liability of the Accused:*** ***B.1)*** *Unanimously, due to the statute of limitations for the criminal action, [Nombre024] is acquitted of all penalty and liability for the crime of RECEIVING STOLEN GOODS (RECEPTACIÓN), as reclassified, and of REAL CONCEALMENT (FAVORECIMIENTO REAL), both to the detriment of the ADMINISTRATION OF JUSTICE (ADMISTRACIÓN DE JUSTICIA); for lack of criminality (atipicidad), [Nombre015] is acquitted of one crime of CORRUPTER'S PENALTY (PENALIDAD DEL CORRUPTOR) in relation to the crime of AGGRAVATED CORRUPTION by IMPROPER BRIBERY attributed to [Nombre021] and reclassified to the crime of ILLICIT ENRICHMENT (ENRIQUECIMIENTO ILÍCITO) to the detriment of PROBITY IN PUBLIC SERVICE (PROBIDAD EN LA FUNCIÓN PÚBLICA). Likewise, unanimously, applying the principle of In dubio pro reo, [Nombre012] is acquitted of all penalty and liability for four crimes of ILLICIT ENRICHMENT to the detriment of PROBITY IN PUBLIC SERVICE, and [Nombre001] is acquitted of one crime of SIMULATION FRAUD (FRAUDE DE SIMULACIÓN) in connection with the transfer of the property registered under Title (Matrícula) No. [Valor017], Sub-registration (Submatrícula) [Valor018], by deed No. [Valor019] executed before notary public [Nombre025], to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and the COLLECTIVE AND DIFFUSE INTERESTS (INTERESES COLECTIVOS Y DIFUSOS).* ***B.2)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre015] is declared a criminally liable co-perpetrator (coautor responsable) of four crimes of CORRUPTER'S PENALTY for AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY, in material concurrence, in relation to [Nombre004], [Nombre001], [Nombre026], and [Nombre027], to the detriment of PROBITY IN PUBLIC SERVICE, imposing for each crime a penalty of FIVE YEARS IN PRISON for a total of TWENTY YEARS IN PRISON, which, applying the rules of material concurrence, is reduced to FIFTEEN YEARS IN PRISON, a sentence to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. The absolute disqualification (inhabilitación absoluta) requested by the Fiscalía is rejected due to the lack of the legal prerequisites for its application.* ***B.3)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre009] is declared a criminally liable co-perpetrator of three crimes of CORRUPTER'S PENALTY for AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY in relation to [Nombre004], [Nombre001], and [Nombre026], to the detriment of PROBITY IN PUBLIC SERVICE, imposing for each crime a penalty of FIVE YEARS IN PRISON for a total of FIFTEEN YEARS IN PRISON, a sentence to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been credited. The absolute disqualification requested by the Fiscalía is rejected due to the lack of the legal prerequisites for its application.* ***B.4)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre018] is declared a criminally liable co-perpetrator of one crime of CORRUPTER'S PENALTY for AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY regarding [Nombre027], and a criminally liable perpetrator of one crime of CORRUPTER'S PENALTY for PROPER BRIBERY (COHECHO PROPIO) in relation to [Nombre026], both to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of FIVE YEARS IN PRISON for the first and FIVE YEARS IN PRISON for the second, for a total of TEN YEARS IN PRISON, a sentence to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. The absolute disqualification requested by the Fiscalía is rejected due to the lack of the legal prerequisites for its application.* ***B.5)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre004] is declared a criminally liable perpetrator of the crime of AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of FIVE YEARS IN PRISON, to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. Furthermore, he is DISQUALIFIED (INHABILITA) for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.* ***B.6)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre001] is declared a criminally liable perpetrator of one crime of AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY, to the detriment of PROBITY IN PUBLIC SERVICE, and one crime of SIMULATION FRAUD regarding the vehicles transferred by deed No. [Valor020] before notary public [Nombre028] to the detriment of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD and the COLLECTIVE AND DIFFUSE INTERESTS, imposing a penalty of FIVE YEARS IN PRISON and TEN YEARS IN PRISON respectively, for a total of FIFTEEN YEARS IN PRISON, a sentence to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. He is also DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.* ***B.7)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre007] is declared a criminally liable perpetrator of one crime of ILLICIT ENRICHMENT, as reclassified, committed to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of TWO YEARS IN PRISON to be served in the place and manner determined by the respective prison regulations, after crediting the preventive detention served. Likewise, he is disqualified for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions. As the legal prerequisites are met, he is granted the BENEFIT OF CONDITIONAL EXECUTION (BENEFICIO DE EJECUCIÓN CONDICIONAL) of the custodial sentence for a probationary period of five years, during which he must not commit any intentional crime for which he is sanctioned with a penalty of six months or more in prison, in which case this benefit shall be revoked.* ***B.8)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre012] is declared a criminally liable instigator of the crime of AGGRAVATED CORRUPTION in the form of IMPROPER BRIBERY to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of FIVE YEARS IN PRISON to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been deducted. Furthermore, he is DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.* ***B.9)*** *By majority, with the dissenting vote of co-judge Camacho Morales, [Nombre021] is declared a criminally liable perpetrator of one crime of ILLICIT ENRICHMENT, as reclassified, committed to the detriment of PROBITY IN PUBLIC SERVICE, imposing a penalty of TWO YEARS IN PRISON to be served in the place and manner determined by the respective prison regulations once the preventive detention served has been credited, without considering the concurrence of the legally established requirements for him to be eligible for the benefit of conditional execution of said sentence. Furthermore, he is DISQUALIFIED for a period of TWELVE YEARS from obtaining and holding public jobs, positions, or commissions.* ***C) Civil Aspects:*** ***C.1)*** *Unanimously, regarding the CIVIL ACTION FOR DAMAGES (ACCIÓN CIVIL RESARCITORIA) filed by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD:* ***C.1.1)*** *The civil lawsuit filed by the aforementioned institute against [Nombre015] is deemed withdrawn (desistida), who expressly waived so that the civil plaintiff could be ordered to pay costs.* ***C.1.2)*** *No ruling is made on the merits of the discussed right in relation to the civil actions brought 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 lawsuit brought by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD against the aforementioned defendants is resolved without a special ruling as to costs for both parties (sin especial condenatoria en ambas costas).* ***C.1.4)*** *Once the judgment becomes final (firme), the lifting of the attachments (embargos) decreed in favor of the INSTITUTO COSTARRICENSE DE ELECTRICIDAD concerning the aforementioned civil lawsuits is ordered.* ***C.1.5)*** *The request for condemnation for damages and losses (daños y perjuicios) caused by the INSTITUTO COSTARRICENSE DE ELECTRICIDAD through the attachments executed to guarantee the outcome of this proceeding is rejected.* ***C.2)*** *Unanimously, regarding the CIVIL ACTION FOR DAMAGES brought by the PROCURADURÍA GENERAL DE LA REPÚBLICA:* ***C.2.1)*** *No ruling is made on the merits of the discussed right in relation to the civil actions 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 special award of costs to either party.

**C.2.3)** Once the judgment becomes final, the lifting of the attachments (embargos) decreed in favor of the PROCURADURÍA GENERAL DE LA REPÚBLICA in relation to the filed civil claims is ordered.

**C.2.4)** The request for an award of damages (daños y perjuicios) caused by the PROCURADURÍA GENERAL DE LA REPÚBLICA through the attachments (embargos) executed to guarantee the outcome of this proceeding is rejected.

**D) Forfeiture (Comiso) and declaration of document falsity:** By majority, with the dissenting vote of co-judge Camacho Morales, the forfeiture (comiso) of the following assets in favor of the State is ordered:

**D.1)** The properties registered in the Public Property Registry: Partido de Guanacaste under the Folio Real system, Title Number [Valor021], Sub-title [Valor018]; Partido de [...] under the Folio Real system, Title Number [Valor022], Sub-title [Valor018]; Partido de [...], Folio Real system, Title Number [Valor023], Sub-title [Valor024]; and Partido de [...] registered under the Folio Real system, Title Number [Valor025], Sub-title [Valor018].

**D.2)** The investment certificate No. [Valor026], which was renewed in certificate No. [Valor027] for the amount of five million four hundred sixty-three thousand five hundred fifty-five colones and sixty-five cents, 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, economic support for checks No. [Valor028] from Banco Interfin and No. [Valor029] from Bank of New York Delaware, both drawn to [Nombre026] and deposited to the order of this court.

**D.4)** The shares of [Nombre009] in the company La Selva de La Marina S.A., owner, among others, of the properties registered in the Public Registry under the Folio Real system, Title Number [Valor030], Sub-title [Valor018] and Title Number [Valor031], Sub-title [Valor018].

**D.5)** The vehicles: Suzuki Grand Vitara XL, license plate number [Valor032]; and Suzuki Jimny, license plate number [Valor033].

**D.6)** The document falsity (falsedad instrumental) of public deed No. [Valor020] granted before notary public [Nombre028] by [Nombre001] and [Nombre029] is declared; therefore, the transfer of assets ordered in said instrument by the sentenced individuals [Nombre068] must be annulled, proceeding with the corresponding registry corrections.

**E) Precautionary measures (Medidas cautelares):** **E.1) Pretrial detention (Prisión preventiva):** by majority, with the dissenting vote of co-judge Camacho Morales, the request of the Prosecutor's Office is granted and the precautionary measure (medida cautelar) of pretrial detention (prisión preventiva) is decreed against [Nombre009] and [Nombre001] for a period of **eighteen months**, to be calculated from April twenty-seventh, two thousand eleven, until October twenty-seventh, two thousand twelve; and against [Nombre015] for a period of **twelve months**, to be calculated from April twenty-seventh, two thousand eleven, until April twenty-seventh, two thousand twelve. The foregoing is due to the change in the status held by the defendants [Nombre015], [Nombre009], and [Nombre001] in relation to this proceeding, as well as the nature and quantum of the penalty imposed on each of them, which constitutes sufficient reason for, while at liberty, each of them to seek viable alternatives to evade their criminal responsibility and frustrate the purposes of the Administration of Justice, whose protection and foundation are of constitutional order.

**E.2) Alternative measures (Medidas supletorias):** by majority, with the dissenting vote of co-judge Camacho Morales, at the request of the Public Prosecutor's Office, the following alternative precautionary measures substitute to pretrial detention (medidas cautelares sustitutivas de la prisión preventiva) are imposed on the sentenced individuals [Nombre004], [Nombre012], [Nombre018], and [Nombre021]: a prohibition from leaving the country from April twenty-seventh, two thousand eleven, until the judgment becomes final, for which each of the sentenced individuals must deposit their passport at the seat of this Court within twenty-four hours following the issuance of this resolution; and the obligation to appear before this Office on the twenty-seventh day of each month, extendable to the next business day when that day is a non-business day, for which a registry must be kept where they sign. The described measures will take effect upon the reading of the operative part of the judgment and until it becomes final, with the warning that in the event of non-compliance with the established conditions or the indicated alternative precautionary measures (medidas cautelares sustitutivas), the now-deferred pretrial detention (prisión preventiva) could be applied.

**F) Other relevant aspects:** **F.1) Costs of the proceeding (Gastos del proceso):** unanimously, the costs of the criminal proceeding are to be borne by the State.

**F.2) Personal costs (Costas personales):** unanimously, the costs of the proceeding regarding the exercise of the criminal action are to be borne by the defendants. Given the proven economic solvency of the sentenced individuals [Nombre004], [Nombre001], [Nombre018], and [Nombre007], who opted for legal advice from Public Defense attorneys of the Judiciary, in accordance with Articles 152 of the Organic Law of the Judiciary and 265 of the Code of Criminal Procedure, each must pay the fees of the professionals who assisted them during this proceeding. This item is set at the sum of TEN MILLION COLONES, covering their professional performance from their appearance and up to the issuance of this judgment, but not the eventual appeals and other procedures required after its issuance. Said sum must be paid by each of the accused to the Judiciary within the fifteen days following the date the judgment becomes final, with the consequent attachment and auction (embargo y remate) of their assets in the event of non-compliance with this obligation.

**F.3) Communications (Comunicaciones):** by majority, with the dissenting vote of co-judge Camacho Morales, issue the pertinent communications to the Dirección General de Migración y Extranjería regarding the prohibition from leaving the country for [Nombre004], [Nombre018], [Nombre012], and [Nombre021]. Once this judgment is final, the corresponding official letters will be sent to the Tribunal Supremo de Elecciones regarding the absolute disqualifications (inhabilitaciones absolutas) of [Nombre004], [Nombre012], [Nombre021], [Nombre001], and [Nombre007] from holding public office by popular election, and to the Civil Service for the absolute disqualifications from appointment to other public employment, positions, and commissions. Communicate the document falsity (falsedad instrumental) declared regarding the deed granted before notary public [Nombre028] to the Public Property Registry. Send the communications to the Instituto Nacional de Criminología, the Juzgado de Ejecución de la Pena, and the Judicial Registry for their corresponding actions. NOTIFY.-" (sic.).

**II.-** That against the preceding ruling, appeals for cassation, reclassified as appeals for appeal, were filed by: Dr. [Nombre012], together with his defense attorneys, Rafael Gairaud Salazar and Cristian Arguedas Arguedas; attorney Hugo Santamaría Lamicq, as defender of Mr. [Nombre018]; attorney Mario Gonzalo Soto Baltodano, as President with powers of General Attorney-in-Fact without limit of sum of the company Juriso S.A.; attorneys Wilson Flores Fallas and Nazira Merayo Arias, as defenders of Mr. [Nombre007]; attorney Mario Navarro Arias, as defender of Mr. [Nombre009] and Special Judicial Attorney-in-Fact 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 defender of Mr. [Nombre021]; Messrs. [Nombre001], [Nombre009], [Nombre015], and [Nombre021], in a document authenticated by attorney José Miguel Villalobos Umaña; attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, as Special Judicial Attorneys-in-Fact for the company 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 with powers of General Attorney-in-Fact without limit of sum of the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua S.A.; attorney Yamura Valenciano Jiménez, as defender of Messrs. [Nombre001] and [Nombre004]; attorneys Criss González Ugalde and Maribel Bustillo Piedra, as representatives of the Public Prosecutor's Office; attorneys Federico Morales Herrera and Erick Ramos Fallas, as defenders of Mr. [Nombre015].

**III.-** That, having conducted the respective deliberation in accordance with the provisions of Article 465 of the Code of Criminal Procedure, the Court considered the issues raised in the appeal.

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

Drafted by the Judge of Appeal of Criminal Sentence **Chirino Sánchez**; and, **CONSIDERING:** **I.- APPEAL OF DR. [Nombre012].** Mr. [Nombre012], in the exercise of his own defense, has challenged judgment No. 167-2011, issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José at 3:00 p.m. on April 27, 2011, which declared him the responsible perpetrator of a crime of "Instigation to the crime of Aggravated Corruption in the form of Improper Bribery," to the detriment of Probity in Public Function, imposing a penalty of five years in prison and another of twelve years of disqualification (inhabilitación) from obtaining and exercising public employment, positions, or commissions. The accused [Nombre012] has expressed his disagreement with the guilty verdict through successive documents, the first of which is an "appeal" filed on June 2, 2011 (cf. Volume XXXV, pages 16762 to 16893). The second is an "appeal for cassation" filed on August 1, 2011 (cf. Volume XXXVII, pages 17408 to 17648). The third is an "addition" to his appeal for cassation on procedural grounds, a submission filed on August 5, 2011, alleging violation of the principle of natural judge (cf. Volume XXXVII, pages 17908 to 17903). In Volume XXXVIII, other documents of his are observed that also need mention, on pages 171854, 171855, 171909 to 171910, and 171945; as in them, he refers to the admissibility of his "addition" and offers evidence in this regard. Finally, in Volume XXXIX is the "appeal of sentence" (filed on February 10, 2012, cf. pages 172346 to 172686), by which Dr. [Nombre012] reclassifies his previous cassation claims into an appeal of criminal sentence, in accordance with Transitional Provision III of Law No. 8837 of May 3, 2010 ("Creation of the appeal of the sentence, other reforms to the impugnation regime and implementation of new rules of orality in the criminal process"). **Presentation.-** This last document begins with a "Summary" of thirty-one pages in which Dr. [Nombre012] explains that he presents the reclassification of the appeal and the expansion that he timely filed against judgment No. 167-2011. He specifically challenges what was ordered by the majority vote of Judges Rosaura García Aguilar and Ileana Méndez Sandí (Judge Jorge Camacho Morales dissented). Throughout this compendium or preliminary summary of the appeal, he alleges the non-observance of Articles 24, 30, 33, 34, 35, 39, 40, 152, 153, and 154 of the Political Constitution; 1, 2, 3, 5, 7, 8, 10, 28 of the Universal Declaration of Human Rights; 2, 5, 17, 18, and 26 of the American Declaration of the Rights and Duties of Man; 2.1, 3, 7, 9.3, 10, 14.1, 14.3 subsections d) and f) of the International Covenant on Civil and Political Rights; 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 ("Pact of San José"); 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; 46, 72 subsections a), e), and f), and 342 of the Criminal Code; of the Law on the registration, seizure, and examination of private documents and intervention of communications (Law No. 7425, in force since its publication in La Gaceta of September 8, 1994); and of Article 62 subsection a) of Law No. 8422 of October 6, 2004 (Law against Corruption and Illicit Enrichment in Public Function, in force since its publication in the official newspaper La Gaceta No. 212 of October 29, 2004); the Convention against Torture and Cruel or Degrading Treatment or Punishment; the Inter-American Convention to Prevent and Punish Torture; thereby requesting that the judgment be annulled in accordance with Articles 458, 459, and 465 of that same legal text, the guilty verdict be annulled, and his acquittal be declared. He warns that due process has been radically violated to his detriment, starting from October 15, 2004 itself, when—voluntarily and after prior notice to 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 considers that there are many non-observances and erroneous applications of the law in the judgment regarding the determination of the facts that were deemed proven by the majority of the court (which do not specify circumstances of place and time, who participated, what the reasons for the actions were, how the payments occurred and what they correspond to, in relation to the contracts between Alcatel, regarding the false participation attributed to him before [Nombre026] for debt collection from Alcatel; regarding supposed payments made to him by [Nombre026] with Alcatel resources), a determination of facts that becomes arbitrary. In general terms, he questions the legitimacy of the evidence admitted to the trial and the assessment of the evidence (which does not conform to the rules of sound criticism), the legal reasoning of the judgment (which is incomplete and in many cases contradictory), and the determination of the imposed penalty. He argues that the statement—which is not testimonial evidence—of the confessed and collaborating defendant [Nombre026] has been erroneously assessed (as there is no external element to support or corroborate his testimony) to link him to the crime, and that the existence of documents is falsely affirmed that in no way correspond to what the judgment argues, which illegitimately and contradictorily anchors itself to bank evidence brought from Panama, without judicial authorization, violating the constitutional right to privacy, despite the fact that the court itself—unanimously—declared other evidence of the same origin illegitimate, precisely for those reasons, just as illegal evidence is accepted because it was received outside the term of the judicial authorization or from entities other than those ordered to deliver it. The majority of the court refused to hear and resolve serious violations in the negotiation and judicial approval of the opportunity criterion for [Nombre026]. He was subjected to the modification of a statute of limitations condition that already protected him, based on a law issued after the act that protected him occurred. He was judged in violation of his right to a natural judge, and the maximum penalty was imposed for an alleged Instigation that not even [Nombre026] himself dared to declare, as he instead repeatedly insisted that he accepted the corrupting offer before the conversation he falsely claims to have had with him to inform him of it. Despite repeated requests from his defenders, the other contracts between Alcatel and Servicios Notariales Q.C. were not investigated.

of prior and different purchases by ICE from Alcatel, to determine whether irregularities occurred in them or whether the alleged payments received could have originated from other lawful causes. It was an error by the majority of the court to blindly accept the statements of [Nombre026] as confirmed, since the truth is that he incurred in evident contradictions and falsehoods, according to the rules of sound criticism. The observations that the expert witnesses for his technical defense ([Nombre030] and [Nombre031]) made regarding the Forensic Auditor's statements were not analyzed in a reasoned manner, despite the serious limitations of their reports, since the forensic experts did not cross-check or verify the information in cases of inconsistencies in dates, transaction times, bank paperwork, client signatures, or the constitution and liquidation of certificates of deposit (certificados de inversión), because they relied completely on what the banks told them. Throughout the debate, a series of suspicious indicators regarding the actions of Banco Cuscatlán, Cuscatlán International Bank, and Grupo Cuscatlán was clearly established, but knowledge of these circumstances did not lead the Public Prosecutor's Office to investigate whether money laundering laws were being violated, nor did the forensic experts bother to make inquiries in that regard, or at least communicate it to SUGEF. The lady judges who sign the majority vote believe [Nombre026] regarding the alleged meetings in [...] and at the house of [Nombre012], without having any other evidentiary support than the migration movements recorded for the alleged participants, records that perhaps only allow establishing that [Nombre026], Alcatel representatives, and the accused were in the country on those dates. To give credibility to [Nombre026], regarding the meetings in [...] and at the appellant's house, the lady judges state that the subsequent payments confirm the instigation, but that conclusion is not derived with certainty, because the sums subsequently received—if they existed—could have come from causes other than a crime: "It is guilt that must be proven, not innocence," states the complainant, and he adds that the existence of a criminal plan by Alcatel or that [Nombre026] had voted for the award of the four hundred thousand lines, are also not circumstances that prove with certainty that [Nombre012] acted as an instigator. He emphasizes that [Nombre026] himself, on at least three occasions, declared at trial that he had already accepted Alcatel's offer in principle (he requests to see the statements given at trial on September 8 at 3:40:40 p.m. and September 9, at 8:11 a.m. and at 1:45 p.m., all in the year 2010), so he did not need convincing to carry out his plan; the witnesses and [Nombre026] himself agreed that the appellant never asked any director or official of ICE for anything regarding the bid for the four hundred thousand GSM cellular lines, nor regarding any other purchase or contract. [Nombre026] does not even claim to have informed [Nombre012] in the false meeting of his purported commitments to Alcatel, much less to have told him that he needed his help to fulfill them. The lady judges blindly believe the accused [Nombre026], despite the contradictions he incurred, despite the fact that both of them heard him declare about his unjustified income when he was Minister of Housing and the other income related to other alleged crimes confessed by [Nombre026] and that were corroborated by the O.I.J. *All possible* bank accounts, in colones or dollars, of [Nombre026] and his wife were not investigated, because the Public Prosecutor's Office did not request it, and for that same reason, the other possible crimes of [Nombre026] were also not investigated, but he was presumed innocent, while for the appellant [Nombre012] the burden of proof was reversed, this being so because—according to the judges—he did not prove a different nature as the reason for the alleged payments imputed by [Nombre026]. In contrast, Judge Camacho Morales, in his dissenting or minority vote, carries out a careful analysis that demonstrates that the corroboration of a promise of a gift by the alleged corruptors is not established in any case and that the dates indicated in the majority vote are not compatible with a congruent explanation of the tasks entrusted to [Nombre026]. The funds that [Nombre012] received from [Nombre026]—asserts the appellant—actually correspond to a loan whose payment his lawyers deposited starting in 2004, but the lady judges assert that it is not a loan only because [Nombre026] states that it is not. Judge Camacho Morales warned of the illegality of evidentiary item 588, which gave rise to the case and which was received without a judicial order, in clear violation of the constitutional order. It is a situation identical to that of another evidentiary item also brought from Panama, but which was unanimously declared illegal by the same criminal court in this trial, by means of a resolution at 8:00 a.m. on May 14, 2010, for having omitted that fundamental requirement of the judicial order, necessary for the lifting of bank secrecy to be lawful. The Public Prosecutor's Office alleged that evidentiary item 588 is valid because the consent of the legal representative of the company whose bank relationships in Panama were brought to the debate was given. That purported authorization was given almost seven years after the illegal obtaining of the evidence and three days after the Trial Court issued its resolution at 8:00 a.m. on May 14, 2010, which declared the Panamanian evidence obtained without judicial authorization illegal; and it was given without verifying the legal capacity of the alleged representative. Regarding the bank evidence obtained in application of the "Central American Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama," Judge Camacho Morales is correct when he says that the legal formalities established as a guarantee of a fundamental right must be complied with *in every case* because they are matters of public policy and are not waivable by private individuals. And the other evidence derived from item No. 588 is in turn illegitimate, so that upon its suppression, there is no evidence of any fact in the accusation. The invalidity of this evidence was decreed by the Criminal Chamber of the Supreme Court of Justice two weeks after the issuance of the judgment being challenged in this venue, when the Third Chamber of the Supreme Court of Justice [refers to judgment No. 499 of 11:45 a.m. on May 11, 2011] resolved the appeals filed against the judgment issued in the "Caja-Fischel" case, which refers not only to the same evidence, but also to another matter in which, as happens in this one, value was sought to be given to it through the authorization of [Nombre032]. But there are also nineteen other bank evidentiary items [which he requests be considered as evidence of this grievance] that suffer from the original defect that the judicial resolution did not order the *lifting of bank secrecy*, but merely gave an order for the examination, registration, and seizure of the documentation (if the lifting is not ordered, the bank cannot provide the information, even if prosecutors or police officers were authorized for the seizure of the documentation). The violations occurred first regarding the procedure followed to obtain the bank evidence, from both Banco Interfin and Sociedad Acobo Fondos de Inversión (the O.I.J. officers carried out the seizure after the deadline ordered by the Guarantee Judge for the diligence to be performed had expired), and later when the court commits the error of validating that illegally obtained and incorporated evidence in the debate, which influenced an incorrect determination of the facts. According to the vote of Judge Camacho Morales, the procedure followed for granting the prosecutorial discretion criteria (criterio de oportunidad) to [Nombre026] was defective and illegal, it was improper to authorize it, and the resolution of the Criminal Court that agreed to it is ineffective because it lacks grounds; hence, the statement that said accused gave during the debate is unlawful. The lady judges of the Court rejected the protest for defective procedural activity, declaring themselves incompetent to resolve the defects in its processing and judicial approval (cf. resolution at 1:30 p.m. on September 2, 2010, volume XXXVIII, folios 13676 to 13736 verso). The prosecutorial discretion criteria was applied to [Nombre026], he was disproportionately benefited as a supposed "collaborator," even though he is not an accused whose conduct demonstrates a lesser culpability compared to that attributed to the other agents. The Public Prosecutor's Office concealed from the criminal judge who approved the prosecutorial discretion criteria, determining information to establish the culpability of his conduct, for other actions of his that could also be considered criminal, but against which the Prosecutor's Office did not subsequently exercise criminal action, due to the application of the prosecutorial discretion criteria, so that de facto he was granted impunity beyond jurisdictional control. Regarding the statute of limitations for the criminal action, he reproaches that the lady judges incorrectly applied subsection (a) of Article 62 of the Law against Corruption and Illicit Enrichment in the Public Service, Law No. 8422 of October 6, 2004 (in force since its publication in La Gaceta No. 212 of October 29, 2004), which eliminates the reduction of the term by half established by Article 33 of the Code of Criminal Procedure that operates with the preliminary statement (indagatoria). The first formal accusation occurred with the statement of October 15, 2004, and produced the effects of the law in force at that time; that effect cannot be modified by a subsequent law, as it would imply a retroactive application of the law to his detriment, infringing Article 34 of the Political Constitution. There was an infringement of the principle of the natural judge (juez natural), because Judge Rosaura García was brought from the Judicial Academy to preside over the Trial Court and as soon as the debate ended she returned to the Judicial Academy, despite which she continued returning to the Court to participate in instances of this process, unlike Judge Camacho Morales, who transfers to another judicial seat and does not participate in an instance of resolving a request for clarification and addition (in which Judge Rosaura García did intervene). The Trial Court prevented him from exercising his material defense. Given his professional specialty, Dr. [Nombre012] requested the Court to allow him to personally exercise his material defense, questioning the expert witness [Nombre033], in relation to the quantification of the social damage caused by the acts of corruption attributed to the civil defendants, but the Court denied him the exercise of that right, for which his defense reserved cassation. The lady judges who issued the conviction acted conditioned and influenced by social circumstances. An event of the media and political dimension such as the criminal trial against a former President of the Republic and Secretary General of the Organization of American States carries an immense emotional charge, also because of the public mockery that was mounted when he voluntarily returned to the country and the climate that has been experienced at the national level since then, all of this magnified by the actions of the then President [Nombre034], Attorney General Francisco Dall'Anese Ruiz, political leaders, and the media. There was a "staging of indictment" and thus he was pre-condemned by public opinion in a trial by media, with greater harshness because he is a public figure. That parallel trial exerts a pressure that influenced the judicial process, because it created in the subconscious of the lady judges the idea that only a conviction would fulfill popular expectations and defend the prestige of the Judiciary. "Judges cannot depart from being the mouth of the law," emphasizes the appellant, but the judges, subconsciously predetermined or biased by the weight of that social environment, opted for unsubstantiated interpretations to conclude in his conviction, despite the fact that there was no demonstration of his guilt, throughout a tortuous and degrading process, in which he was even unduly deprived of his liberty. The penalty imposed on him is contradictory, lacks substantiation, and is not objective. The maximum penalty was imposed on the appellant, while [Nombre026], who appears linked to more criminal acts and with more accused persons, had the prosecutorial discretion criteria applied. When setting the penalty, they only refer to his condition as Ex-President, but his positive or favorable personal conditions, prior and subsequent to the facts, were not taken into account, such as his age and his behavior throughout the entire process. The lady judges also do not explain why they deny the benefit of conditional execution of the sentence, when all the objective and subjective conditions for its application are met, because he would be a first-time offender, he has a family, he performs work as a professor at the University of Costa Rica despite being retired. After this "Summary," between folios 172377 and 172378, he develops an "Index" that lists the different sections and claims that are developed throughout the appeal, in the following manner: **First Section.- Disagreement with the determination of the facts.** The determination of facts held as certain in the judgment violates the rules of logic, psychology, and experience in a gross manner and, in many cases, they are contradictory among themselves, so they lack substantiation and their determination becomes arbitrary. The facts said to be accredited do not correspond to the evidence presented at the debate (cf. Appeal, folios 172381 to 172382). **A. False determination of the decision to corrupt.** The accreditation of proven facts numbers 26, 27, and 48 of the judgment is challenged, which are considered mere assumptions, arbitrary and lacking grounds (cf. appeal, folios 172382 to 172386). **B. False determination of the object of the contracts between Alcatel and Servicios Notariales QC.** The accreditation of proven facts of the judgment numbers 48 to 59 is refuted. The contracts prior to the four consultancy contracts between Alcatel and Servicios Notariales QC that referred to fixed lines were not investigated by the Public Prosecutor's Office, nor taken into account by the lady judges, despite the fact that those prior contracts could be related to other illegitimate actions by [Nombre026] prior to the contracting of the four hundred thousand GSM cellular lines. Logic indicates that when a situation can be caused by different and independent facts, it is not appropriate to attribute it to only one of them without eliminating the possibility that others may have occurred. "Why," asks the appellant, "if the contracts had been coming from before, if they refer to other sales to ICE, if these other sales to ICE occurred, if they occurred when [Nombre026] was director of ICE, if the transfers of resources from Alcatel to [Nombre026] refer to those other facts, and if the OIJ expert witnesses say they are payments for those facts, why is that possibility rejected outright?" The conclusion does not follow from the premises (non sequitur, says the appellant, who again reproaches the lack of objectivity of the lady judges, cf. folios 172386 to 172393). **C. False statements about my supposed participation in the supposed actions of [Nombre026] to collect from Alcatel.** The accreditation of proven facts numbers 64, 68, 69, 70, 71, 74, and 75 is rebutted, which are not clear or precise, contradict number 48, and some of them have no support other than the statement of the collaborating accused [Nombre026], which is not testimony but the declaration of an interested accused, whose statements necessarily had to be corroborated by other evidentiary means, which did not happen in the present case. Going to Paris to make a phone call seems very strange, but it is an incredibly nonsensical argument to state that [Nombre026] went to Paris in 2001 to make a call that was made in mid-2000, which denotes that the lady judges shamelessly manipulate the evidence, against the most elementary rules of experience (cf. folios 172393 to 172395). **D. Unfounded statements about supposed meetings of [Nombre026].** The accreditation of proven facts of the judgment numbers 85 to 93 is objected to, because they have no support other than the statement of the collaborating accused [Nombre026]. For the lady judges, if the accused [Nombre026] says that they met with Mr. [Nombre035] in [...], it is enough to verify that he had not left the country to corroborate his statement. According to [Nombre026], he accepts the offer made to him in principle (see statements of [Nombre026] of September 8 at 3:41 p.m. and September 9 at 1:45 p.m., of the year 2010) and what he may have reflected on when he arrived at his house has no other support than his statement. The percentage of participation mentioned has no relationship with the amounts that [Nombre026] says he delivered to [Nombre012]. According to the statements of the confessed accused [Nombre026] before the Court, the reason he had for seeking out [Nombre012]—in that meeting of which there is no evidence whatsoever—would have been to feel protected given the magnitude of the facts and because of his closeness to Mr. [Nombre012], to be able to fulfill the three tasks that, according to [Nombre026], Alcatel entrusted to him through its officials. Proven facts 85 to 92 are only deduced from the last statements issued as consideration for an agreement with the Public Prosecutor's Office at the date of making the arrangement for an abbreviated procedure: "This happens at the beginning of May 2005," says the appellant, "when the statement of [Nombre026] is given for the first time that his acceptance of Alcatel's offer was before the purchase of the 400,000 lines (see main file Volume VIII folios 2992 to 3010). Previously, from his first preliminary statement (indagatoria) he maintains that it was a reward subsequent to the award. That strange statement over three days, but written like a document prepared under an agreement with paragraphs in quotes, precise punctuation, and the drafting of a written document and not of a declaration, remains as the basis of the agreement for the prosecutorial discretion criteria as stated by Prosecutor Criss González to the Trial Court. Note, honorable appellate judges, how the facts actually proven better fit the first version of [Nombre026] (payments as a reward from Alcatel to ensure, possibly, the 50% expansion of the bid and new future contracts; clearly this does not mean that there were not previous payments for other contracts) than 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 know the dollar amount of the bid, nor that it was 400,000 lines, nor is it logical to pay for a migration to GSM that had already been approved many months before, that he had responsibility for the bid taking place when this was ordered by the Comptroller General of the Republic in January 2001 when it did not accept direct purchases. Perhaps those circumstances explain why the Prosecutor's Office did not investigate or try to verify the supposed meetings in [...] between [Nombre026] and Alcatel representatives, nor at my house with me." According to proven fact number 93, [Nombre026] did know the amount of the bid before December 5, when the amount for the lines is determined: "So the lady judges accept contradictory versions of [Nombre026] as is convenient to ratify the conviction that the media and politicians had already subconsciously instilled in them. Please also note, honorable appellate judges, how the lady judges, without any grounds, state that he transmitted to me: 'and the actions I had to carry out in return.' In no statement of [Nombre026] to the Prosecutor's Office, nor during the trial, did [Nombre026] state such a thing. Where do the lady judges get that statement from?... " (cf. appeal, folios 172395 to 172400). **E. False determination of facts regarding supposed payments by [Nombre026].** The accreditation of proven facts numbers 95 to 98 and 100 to 114 is challenged, which have no support other than the statement of the collaborating accused [Nombre026]; the judicial report itself No. 297-DEF-540-04/05 of the Judicial Investigation Organization concludes that it is not possible to state anything regarding the supposed cash deliveries that, for different reasons, in diverse and contradictory instances, [Nombre026] claims to have made to [Nombre012], which is impossible to verify with the existing evidence. The lady judges infringe the rules of sound criticism by considering that [Nombre026] collaborated out of repentance and patriotism, or that if he incurred contradictions it was due to his "state of mind," since it is evident that he was interested in the conviction of [Nombre012] to obtain his impunity in exchange. [Nombre026] indicates that he did not make the payments to [Nombre012] of the 60% that, according to him, [Nombre012] requested, because he considered it unjust and disproportionate: "What does 'unjust and disproportionate' mean," asks the appellant, "in the statement of [Nombre026] that the lady judges collect? Unjust because [Nombre026] is a principal perpetrator which I could not be even with his false accusations? Disproportionate in relation to the responsibilities that [Nombre026] knows correspond to him? If so, how could a prosecutorial discretion criteria have been applied in favor of [Nombre026]?" [Nombre026] did not testify as a witness in the debate, he does not have the status of a witness (but rather of a confessed accused, presumably a "collaborator"), nor was he sworn under an obligation to tell the truth. Other evidentiary means that confirm the truth of his statements regarding the crux of the facts according to the crime classification were not validly incorporated into the debate: the existence of the promise of compensation, the act contrary to his duties, the occasion and time of those nonexistent acts, the actions that [Nombre026] says he carried out (cf. appeal, folios 172400 to 172406). **Second Section.- Disagreement with the incorporation and assessment of the evidence.** There are gross errors in the incorporation of the evidence for the majority vote due to the lack of a precise and detailed determination of the facts held as accredited by the court. In the majority vote, there is a lack of substantiation, contradictory substantiation, and disregard of the rules of sound rational criticism with respect to evidentiary means and elements of decisive value. The reasoning for assessing the evidence is totally contrary to the facts that appear in the facts determined by the evidence. The judgment is based on illegitimate evidence that makes it totally invalid. **A. The consultancy contracts between Servicios Notariales QC S.A. and Alcatel.** There is no detailed determination that all the Alcatel - Servicios Notariales QC contracts were for illegal payments related to the four hundred thousand cellular lines. The irreparable harm of holding this fact as certain is that it is related to the four hundred thousand cellular lines and Alcatel payments that the judicial expert witnesses of the O.I.J. themselves establish as motivated by other reasons, thereby accrediting a supposed receipt by [Nombre012] of funds originating from Alcatel. He requests that the conclusion that Alcatel payments for contracts and invoices not related to the four hundred thousand lines are for payments of that GSM cellular negotiation be annulled and that the conviction against him be annulled, declaring his acquittal (cf. appeal, folios 172406 to 172415). **B.

Alleged request by [Nombre012] to [Nombre026] for Alcatel to honor outstanding debts. This topic is developed between pages 1301 and 1307 of the judgment, without offering a single argument that proves [Nombre026]'s statement to the effect that [Nombre012] asked him to help in the collection from Alcatel, which he claims [Nombre012] asked him to do, and that [Nombre012] asked him to take advantage of a trip to Paris to promote that payment. The lady judges engaged in speculation lacking support and procedural interest, but with a high political charge regarding the activities of a distinguished lawyer who has held very important positions in Governments of the Partido Unidad Social Cristiana. It is false that the appellant participated in that collection (cf. appeal, folios 172415 to 172416).

**C. Alleged payments to [Nombre012] and their relationship with funds originating from Alcatel.** There is no detailed determination that the alleged payments from [Nombre026] to [Nombre012] occurred, nor that they originated from Alcatel funds related to the four hundred thousand cellular lines, and thus the rules of logic, psychology, and banking experience are violated. The irreparable harm (gravamen irreparable) of taking these facts as true is that they are indispensable to link him to the crime they seek to attribute to him. He requests that the judgment's conclusions regarding payments from [Nombre026] to him be annulled and that the conviction against him be annulled. The matters concerning the delivery and receipt of the gift are developed by the lady judges between pages 1703 and 1799 of the judgment. The forensic expert stated that "*It was not determined that Mr. [Nombre012] directly received money from Servicios Notariales QC or from Intelmar*" (page 165 of the judgment), meaning it is essential to be able to establish, in each case, an unbroken chain of fund transmission in order to validly conclude that Alcatel funds reached the hands of [Nombre012] due to the instigation he allegedly directed at [Nombre026] to commit a crime. However, the lady judges have the audacity to affirm that the receipt of the monies or certificates that [Nombre026] claims to have given to [Nombre012] has been "totally corroborated" by "documentary evidence of a banking nature." The statement of the accused [Nombre026] was not corroborated by any evidentiary element other than his declaration. "*How can the lady judges say*," asks the appellant, "*that all of [Nombre026]'s statements have been confirmed, when there are fundamental contradictions regarding: a) the timing of the agreement with Alcatel, whether before or after the tender (licitación); b) regarding the sums delivered: $370,000 in cash, first, then he changes it to BICSA certificates of deposit for $130,000, all at the presidency in January 2001, and many months later he invents two cash deliveries, one for 100,000 dollars in October 2002 and another for 130,000 dollars in September 2003, both at my in-laws' house; c) in that he affirmed in the statement of October 8, 2004, that he had sent an undetermined sum, by an undetermined means, and at an undetermined time to the company Inversiones Dennise, only to later accept that he never did so; d) If he said that I had dictated Inversiones Dennise's ABA address to him, and then with rich imagination in detail says he copied it from my computer screen; e) If he dares to say he kept cash of unknown origin in hiding places in his house for thousands of dollars, he who in all his transactions tries to put money to generate interest immediately; f) If there is no proof whatsoever of the central points of his statement such as the meeting in [...], his call to arrange a meeting with me, the false meeting at my house; g) If he says he opened the Saint George Bank account to send money to his daughter who was studying in the United States, and she had already finished her studies; h) If he contradicts himself saying that at the meeting in [...] no amount was discussed, only a percentage, because the volume involved was unknown, and then says that the next day at the supposed meeting at my house he indicated the amount was between one and a half and two million dollars*." The observations made by his defense experts, Messrs. [Nombre030] and [Nombre031], regarding inconsistencies in dates, transaction times, bank paperwork, client signatures, the constitution and liquidation (constitución y liquidación) of investment certificates, cash transactions, even though they are recorded as arguments of the technical Defense in the judgment, are not analyzed, and they continue with the statements from the reports of the Economic and Financial Crimes Section of the O.I.J., which depend in turn on the unverified statements of bank officials. Furthermore, the forensic experts themselves acknowledge the serious limitations of their reports in their own statements, noting that they did not collate or verify the information in cases of inconsistencies in dates, transaction times, bank paperwork, client signatures, constitution and liquidation of investment certificates, as they trusted completely in what the banks told them; these limitations are not taken into account by the lady judges, which in itself constitutes a flaw in the reasoning (fundamentación) of the judgment, rendering it incomplete.

Throughout the debate, a series of suspicious indicators was established regarding the actions of Banco Cuscatlán, which, however, did not lead the Prosecutor's Office (Fiscalía) to investigate whether money laundering laws (leyes de legitimación de capitales) were being violated; nor did the forensic experts bother to make inquiries in this regard, or at least communicate with SUGEF. *Should it not be striking that movements of more than fifteen million dollars entered the accounts of Servicios Notariales QC without those financial entities seeking further justification? Is it not strange that later those 'explanations' that served them to try to determine the Alcatel origin of various transactions by means that go against banking and financial experience regarding computer systems, 'cash validations,' cash handling in exchanges of certificates of deposit, transfers between local and foreign banks, exchanges between different instruments of various members of the financial group, acceptance of signatures from those without power of attorney, etc., etc.?* The forensic experts used documents in English, although they did not have command of that language, and many of their conclusions—like those of the lady judges—are based on the statements of the bankers, without a valid verification of their statements (cf. appeal, folios 172416 to 172431).

**D. Assessment of the unsworn statement of the confessed accused [Nombre026].** The majority opinion (voto de mayoría) accepts that [Nombre026]'s statement is not evidence; however, it accepts his word without any proof or indicator (indicio) supporting it on substantial points necessary to somehow link [Nombre012] to the unlawful act. The reasoning is illegitimate, violates the rules of logic, experience, and psychology, and is based on illegal evidence. It causes irreparable harm by illegitimately taking as true the statement of a confessed accused, which is not evidence and whose veracity is not corroborated by any other proof.

The Constitutional Chamber (Sala Constitucional) itself stated: "*It is important to mention as a reference that the European Court of Human Rights* [...] *admitted the legitimacy of the crown witness or repentant witness* [...]*, that its admissibility should only be as a source of circumstantial evidence (prueba indiciaria), that is, the data or information it provides require the backing of other means of proof. It becomes a means of investigation subject to confirmation, directly or indirectly, of the data and circumstances it has provided regarding the investigated facts*" (Constitutional Chamber, No. 12090 of 2:40 p.m. on July 31, 2009). "*It is guilt that must be proven, not innocence*," the complainant reiterates.

What [Nombre026] affirms is that his reflection was that he might need help to fulfill his plan, not that he needed convincing; all the witnesses, including [Nombre026] himself, were unanimous in that [Nombre012] never asked anything of any director or official of the ICE regarding the tender for the four hundred thousand GSM cellular lines, nor regarding any purchase or contract. "*And to crown the contradiction*," says the appellant, "*he seeks me out in case he needs help, does not ask for it, and does not even inform me of the conditions they had supposedly asked him to meet*." For the lady judges, the "incontrovertible" (fehaciente) proof that they met on December 2 and 3, 2000, in [...] and at [Nombre012]'s house is that the alleged participants were in the country (according to the entry and exit records of the country for [Nombre026], [Nombre015], [Nombre035], and [Nombre012]), a conclusion that does not derive from the premises: "*With that reasoning*," says the complainant, "*all of us who are in Costa Rica today are proven to have met, if [Nombre026] says so*." The lady judges exhibit "blind credibility" towards whatever [Nombre026] says, whether it is contradictory or not, whether there are at least indicators confirming it or not, whether it accords with experience or not, whether it goes against the reality of time or not, whether or not it determines, according to his word, the location of people in the world: "...*it is even more unjustified*," he adds, "*when the lady judges were eyewitnesses to [Nombre026]'s statements regarding the unjustified income when he was Minister of Housing, and the other income related to other alleged crimes confessed by [Nombre026] and corroborated by the OIJ*." The bank accounts in colones and other possible accounts of [Nombre026] in his name or his wife's name were not investigated because the Public Prosecutor's Office (Ministerio Público) did not request it; nor were the other possible crimes of [Nombre026] investigated, even though the Public Prosecutor's Office was informed of them, as the prosecutors did not request their investigation (see declaration of [Nombre036], pages 190 and 193 of the Judgment). The lady judges were aware of all this, but this did not affect their total credibility, immune to any contradiction or error in [Nombre026]'s statement. "*One could argue to me that these were unadjudicated facts and therefore could not be used by the court, as it would violate the principle of innocence. But then why is it argued against me that I did not prove a different nature for the alleged payments from [Nombre026]? Does the principle of innocence not apply when it is against me, but only for the confessed accused [Nombre026]?*" Judge Camacho Morales, on the other hand, demonstrates that in no case is there verification of a promise by the alleged corrupters, and the dates accepted by the lady judges in their majority opinion are not compatible with a coherent explanation of the tasks entrusted to [Nombre026].

Regarding the illegal opportunity criterion (criterio de oportunidad) granted to [Nombre026] through deceit of the judges, the lady judges, in a divided opinion (voto divido) on the legality and appropriateness of the judicial approval of that criterion, deny having jurisdiction (competencia) to hear it during the oral debate. In this judgment, it is argued that [Nombre026] wanted to cooperate from the beginning in his first statement in September 2004, without considering that in that statement, the facts he describes are totally contrary to those he accepts in May 2005, when he reaches an agreement for an abbreviated procedure (procedimiento abreviado) with the Public Prosecutor's Office, which are practically identical to those included for the agreement of the opportunity criterion. The majority opinion points out that while [Nombre026] goes unpunished for his actions, that is not the result of their decision but rather of the legislative approval of the mechanism and the approval by other judges. That is not so, because the Trial Court (Tribunal de Juicio) had the responsibility to rule on the approval of the opportunity criterion and they refused to do so. The majority naively believes that [Nombre026] cooperated motivated by supposed patriotic reasons, was placed under house arrest, and went unpunished because the Public Prosecutor's Office, instead of *partially* refraining from criminal prosecution by limiting itself to not charging him with the four hundred thousand lines matter, *totally* refrained from prosecution, including other confessed crimes.

The majority opinion says nothing about the Public Prosecutor's Office's refusal to investigate other crimes confessed by [Nombre026] and verified in the OIJ accounting reports. Nor does the majority opinion refer to the prior circumstances regarding the other crimes confessed by [Nombre026], nor does it do so regarding the multi-million dollar sums that, with the arrangement of the opportunity criterion, remained in the possession of [Nombre026]. There has been a clear tendency to favor [Nombre026] in everything.

The majority relies on [Nombre026]'s statement to classify the conduct attributed to [Nombre012] as "*instigation*" (instigación), but neither [Nombre026]'s alleged words in [...], nor his alleged "thoughts" or "reflections" at his home, nor his presumed words at the fabricated meeting at [Nombre012]'s house indicate that [Nombre026] needed to be induced to do something he had already accepted in principle (that is, he had accepted or embraced it in essence) and that he had repeatedly done in other cases that were not investigated, nor that [Nombre012] produced in him the will and resolution to do it: "*There is no way to classify the acts of which [Nombre026] accuses me and the facts described in the accusation as instigation to aggravated corruption by reason of an improper bribery (cohecho impropio), which makes my conduct atypical and determines a violation of the substantive law of the Penal Code, which demands a dismissal (sobreseimiento) or acquittal in my favor...*" (cf. appeal, folios 172432 to 172451).

**E. Nature of the delivery of funds from [Nombre026] to the President.** The majority opinion rejects [Nombre012]'s version of the nature of the funds that [Nombre026] gave to [Nombre012], and which [Nombre012] always accepted that [Nombre026] delivered to him, and which were paid in 2004, consigning their payment to the Public Prosecutor's Office, with no other argument than [Nombre026]'s word. There is an erroneous assessment of his testimony, and it causes irreparable harm that the statement of that confessed accused was taken as true, which is not evidence and finds no support in any other proof. "*In relation to the nature of the funds delivered by [Nombre026] to me, I have always admitted that—and they constitute the entirety of what he claims to have given me in his initial statement (September 30, 2004)—together with the cash that he initially falsely claims to have given me in late 2000 or early 2001 and later contradicts himself and says he did not give me, the lady judges affirm that it is not a loan (crédito) whose payment my lawyers consigned in 2004. And why do they assert it is not a loan? Because [Nombre026] affirms that it is not...*" (cf. appeal, folios 172451 to 172452).

**F. A judgment based on illegitimate evidence. Bank evidence obtained without a judicial order in Panama (Exhibit 588).** The majority opinion exhaustively uses and relies on Exhibit 588 (prueba 588), which is illegal and unconstitutional and is the foundation for the alleged existence of the crime. Exhibit 588 is a certified copy of the Judicial Assistance from the Republic of Panama sent via notes PGR-030-2004, dated September 10, 2004, and No. 316-DN-TALM-04 of September 6, 2004. Said evidence concerns a certified copy of a letter rogatory to Panama (dated September 10, 2004) in which the Prosecutor's Office requested the Attorney General's Office (Procuraduría General de la República) to apply the "*Central American Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama*" for the collection of evidence in the investigation corresponding to the criminal case called "Caja-Fischel" (criminal case file 04-005356-0042-PE). In said document, the Prosecutor's Office requested the seizure (secuestro) and inspection (registro) of information from all bank accounts and all financial entities in the Panamanian banking system corresponding to the company Marchwood Holding. Similarly, the Prosecutor's Office requested the remittance of all financial movements and their respective backing documentation (credits and debits), including the checks that have been issued from that account, from its opening to the present date, whether cashier's or regular checks, along with the documents supporting said issuances, as well as the account opening file and all documents that have been presented to the bank by whoever is/are authorized on the same.

In all that flow of information between the Public Prosecutor's Office and administrative authorities, for the obtaining of Exhibit 588, the absence of the corresponding judicial order issued by the guarantee judge (juez de garantías) of the present process to request the required information is notable; therefore, such a request contains defects of legality and constitutionality, as said request was formulated and executed without the order of a judge. The Constitutional Chamber interprets that documents containing financial information are protected by "bank secrecy" (secreto bancario), that such secrecy falls within the assumptions protected by Article 24 of the Political Constitution (Constitución Política), so that to carry out any judicial proceeding, the authorities must respect the order and form prescribed by the Political Constitution (cf. Constitutional Chamber, No. 578 of 10:45 a.m. on February 28, 1992). The constitutional guarantee is non-waivable and applicable to all inhabitants, including foreigners; it is not admissible that violations of fundamental rights (privacy and bank secrecy) abroad be asserted as legitimate in Costa Rica.

Law No. 7425, the Law on the registration, seizure and examination of private documents and intervention of communications, was also disregarded, as from its Articles 1, 2, and 3, it is inferred that a) only courts of justice can order the seizure and registration of private documents when absolutely indispensable for the clarification of criminal matters submitted to their knowledge; b) only the criminal judge of the preparatory procedure or guarantee judge, during the investigation, can order the seizure and registration of private documents, either ex officio or at the request of the Public Prosecutor's Office, provided it may serve as evidence of the commission of a criminal conduct; and c) *the order for seizure, registration, or examination must be carried out, under penalty of nullity, by means of a reasoned order (auto fundado) in which, if possible, the documents on which the measure of registration, seizure, or examination will be executed are individualized, along with the name of the person who possesses them and the place where they are located, regardless of whether this information is inside or outside the country*. In this case, there is an absolute absence of the referenced jurisdictional order that authorizes the seizure of private financial documents of Marchwood Holdings and that refers to all the information requested from the Panamanian authorities and which was accepted as Exhibit 588.

But furthermore, the information set forth in the so-called Exhibit 588, as it is a certified copy, originates from another criminal case called "Caja-Fischel," and if one analyzes Exhibit 618 (prueba 618), which is Expert Report 428-DEF-443-05.05 with its 19 annexes, we can easily understand that in said report references are made to money transfers from a company called Servicios Notariales, unrelated to the "Caja-Fischel" case, to Marchwood Holding, which was under investigation in that case. In this way, the Public Prosecutor's Office learns of the existence of the company Servicios Notariales QC; that is to say, the spurious Exhibit 588 comes from a source that is neither independent nor prior, i.e., it originates from another case called "Caja-Fischel." This illegal information arrives from Panama at the beginning of September 2004, and specifically at the Prosecutor's Office by September 10, 2004, as recorded on folio 895 of the judgment. At that time, information was only requested on Marchwood Holdings, not on Servicios Notariales QC; rather, it is from September 10, 2004, that the Public Prosecutor's Office learns of the existence of a company called Servicios Notariales QC, and it is there that it decides to start an independent line of investigation, which ultimately became the present criminal case. Therefore, the origin of the present criminal case is not independent of the investigation of the "Caja-Fischel" case. The present criminal case has its genesis in Exhibit 588, documentation that cannot be considered evidence because it was processed in violation of Article 24 of the Political Constitution and in violation of the theory of the independent source of evidence, but the lady judges of the majority opinion fruitlessly try to justify the independence of Exhibit 588 by referring (cf. pages 933 and following of the judgment) to the existence of other means of evidence demonstrating the legality of the origin of the present process, such as Exhibit 592.9 (monitoring of print media from December 9 to 31, 2004), Exhibit 682 (publications appearing in nationally circulated newspapers, among them Diario Extra from 2004), but said material only refers to a house in [...] and to [Nombre021], the other to Taiwan, but the truth of the matter is that before that date (September 10, 2004), the Public Prosecutor's Office did not know of the existence of the company Servicios Notariales QC.

If a hypothetical suppression of Exhibit 588 is performed, there are no other independent and prior evidentiary elements that give the Public Prosecutor's Office knowledge of the existence of the company Servicios Notariales QC, so as to originate the present criminal process, in accordance with the jurisprudence of the Constitutional Chamber (specifically citing judgment No. 4636 of 4:12 p.m. on August 12, 1997). Nevertheless, the lady judges of the majority seek to "sanctify" the illegality of Exhibit 588 with a note sent long after the illegitimate obtaining of said evidentiary documentation: "*Knowing the illicit nature of Exhibit 588 and the consequences derived from its illegitimate obtaining, the Public Prosecutor's Office, years after having obtained that information spuriously, Mr. [Nombre032], by virtue of his negotiation with the Public Prosecutor's Office so that this body would request a lesser penalty for him during the debate of the Caja-Fischel case, sends a note where he purports to authorize the obtaining, use, and utilization of all the bank information obtained in the Republic of Panama corresponding to the company Marchwood Holding, retroactively to the moment before September 10, 2004, the date on which the Public Prosecutor's Office becomes aware of the existence of Servicios Notariales QC.*" In the majority opinion, starting from page 896, the lady judges validate and base the conviction on said note signed by [Nombre032], which was incorporated during the debate of the present case as Exhibit 759 (note signed by [Nombre032] dated May 17, 2010). That note is nothing more than a tacit acceptance of the illegal action of the Prosecutor's Office, for otherwise they would never have run, years later, to try to validate an absolute defect that was consummated at the moment of the illegal obtaining. Although a distinction should be made between obtaining and incorporating evidence, the majority's thesis that illicitly *obtained* evidence can be licitly *incorporated* is preposterous or absurd, since from the judgment of Magistrate Piza No. 1739-92, it has been understood that evidence only has value if it has been obtained by a lawful means. Furthermore, the powers (type of power of attorney) of Mr. [Nombre032] in relation to Marchwood Holding were never proven: "*That is, years later, a certain gentleman comes along, illegally consenting to something, where we do not know if he has the legal authority to do so...*" because there is not in the entire case file a single certification of legal capacity (personería jurídica) legally issued stating that as of the date of issuance of the note, May 17, 2010, Mr. [Nombre032] had the powers to consent retroactively and illegally to violations of the bank secrecy of the company Marchwood Holding; rather, the lady judges believed only the word of Mr. [Nombre032]; they did not even ask him for proof of his powers as legal representative of Marchwood Holding.

The dissenting opinion (voto de minoría) of Judge Camacho Morales, by contrast, sets out in a serious and well-founded manner why the majority failed to observe Article 181 of the Criminal Procedure Code (Código Procesal Penal) by relying on illegitimate evidence, thereby also violating Articles 363, 142, and 184 of that same legal text.

Judge Camacho Morales concludes that exhibit 588 is illegitimate for the same reasons the court—unanimously—previously considered another piece of evidence also brought from Panama in this trial illegitimate, by resolution at 8:00 a.m. on May 14, 2010 (cf. volume XXVII, folios 13352 to 13408), because the constitutional and legal requirement of a judicial order was bypassed. The Public Prosecutor's Office argued that exhibit 588 is indeed valid because the consent of the legal representative of the company whose banking relationships in Panama were brought into the proceedings was given, and that was accepted by the lady judges. The Third Chamber of the Court, through resolution No. 499-2011 at 11:45 a.m. on May 11, 2011—in the "Caja-Fischel" case—ruled on that same evidence known as "588," declaring it ineffective, as well as the other evidentiary elements directly derived from it. In that "Caja Fischel" trial, to which judgment No. 499-2011 refers, an attempt was also made to validate the illegitimate evidence originating from Panama, the very same that in the present case corresponds to number 588, using the same ruse of resorting to an approval from [Nombre032], a validation that the majority of the Third Chamber also does not admit in vote No. 499-2011, but rather considers absolutely illegal. **G. Banking evidence delivered without a judicial order.** The majority vote is based on banking documentation illegally introduced into the proceedings, because it relates to the lack of *express* judicial authorization for financial entities to lift bank secrecy, even when prosecutors or judicial police officers were empowered to seize the documentation, according to the criterion expressed by the Constitutional Chamber in its judgment No. 578-92 at 10:45 a.m. on February 28, 1992, and by the Criminal Affairs Commission of the Supreme Court of Justice. The complainant details nineteen resolutions of the Criminal Tax Court of the Second Judicial Circuit of San José and maintains that the banking documents seized based on them must be declared ineffective, because none authorized the banking entity to lift the secrecy of the private documentation (cf. appeal, folios 172473 to 172486). **H. Banking evidence delivered outside the judicially established deadline.** The majority vote is based on evidence illegitimately obtained, seized, and introduced into the proceedings, gathered outside the deadline established in the judicial authorization, in the cases of Grupo Financiero Interfín and Acobo Sociedad de Fondos de Inversión, which has been claimed since the preliminary hearing, at the start of the trial, and in the closing arguments. [Nombre012] reproaches that his right to privacy was harmed by violating bank secrecy with respect to his accounts, at a time when the actions of the judicial officials were not covered by any judicial order. The OIJ officers who seized the documentation, by delegation made by the Public Prosecutor's Office, carried out the seizure after the deadline ordered by the guarantees judge for the proceeding to be conducted had expired, which constitutes a genuine violation of due process (cf. appeal, folios 172487 to 172490). **a. Grupo Financiero Interfin.** In this case, the criminal judge expressly ordered that the proceeding be conducted between October 8 and 15, 2004; however, it was not carried out until October 27, making the action illegitimate and the evidence thus obtained ineffective (cf. folios 172491 to 172492). **b. Acobo Sociedad de Fondos de Inversión.** The Criminal Court expressly ordered that the proceeding be conducted between October 5 and 15, 2004; however, it was not carried out until October 19, making the action illegitimate and the evidence thus obtained ineffective (cf. folios 172492 to 172496). ***Third Section.- Disagreement with the legal reasoning.*** **A. Opportunity criterion.** The majority vote is based on illegal evidence, specifically on the statement, as a supposed confessed cooperating defendant, of [Nombre026], protected by an opportunity criterion (criterio de oportunidad) illegally requested and approved to procure his impunity, and on de facto actions by the Public Prosecutor's Office that, without judicial approval, grant him illegitimate impunity for other crimes confessed by him. He requests that the statement given by [Nombre026] at trial be annulled and, since there is no other evidence against him for any crime, he requests that the conviction be annulled and the defect be corrected by resolving the matter according to the applicable law, acquitting him of the crime charged. In the video, it can be seen that it is [Nombre026]'s defense attorney who dictates the answers he must give at trial. The lady judges of the majority vote, in a vote prior to the judgment, had already declared themselves incompetent to resolve the protest for defective procedural activity that the defense alleged against the defects in the processing and application of the opportunity criterion [referring to the vote at 1:30 p.m. on September 2, 2010]. In contrast, Judge Camacho Morales states that the legality in the application of the principle of opportunity is indeed controllable and that in this matter it was granted through a resolution that completely lacks reasoning, and therefore it cannot have any legal effect. [Nombre026] confessed to many crimes, corroborated by the DEF of the OIJ, which were arbitrarily left uninvestigated, meaning there is no proportionality in the application of the opportunity criterion. When the Public Prosecutor's Office requested that the criminal judge approve the opportunity criterion, it concealed decisive information for establishing lesser culpability and proportionality in its application, because other conduct that could be criminal and was confessed by [Nombre026] was not mentioned in the request. Judge Camacho Morales points out the impropriety of the monetary arrangements made by the Public Ethics Prosecutor's Office, since [Nombre026] was legitimized to maintain possession of millions of dollars in sums, and their estimates fell short because they did not take into account other income that [Nombre026] confessed to, but which the Public Prosecutor's Office refused to investigate, meaning that the State itself has legitimized him to keep more than one and a half million dollars (cf. appeal, folios 172497 to 172515). **B. Statute of Limitations.** The majority vote denies that the statute of limitations (prescripción) operated for a penalty of up to three years, as they intend to apply to him the provision of a law that was approved after his initial investigatory statement, which had already granted him a reduction of the statute of limitations period by half. In the resolution at 8:00 a.m. on May 14, 2010, the court decided, unanimously, to reserve for resolution in the judgment the ruling on the applicability of Article 62 of Law No. 8422 ["Law against Corruption and Illicit Enrichment in Public Service," which took effect upon its publication in La Gaceta No. 212 on October 29, 2004]. For [Nombre012], the first formal accusation occurred with the statement of October 15, [2004]. Procedural acts are governed by the law in force at the time of their performance; it is not possible to apply a new law retroactively to a procedural act carried out during the validity of the prior law [in that sense, he cites judgments of the Constitutional Chamber No. 4397-99 at 4:06 p.m. on June 8, 1999, and of the Criminal Cassation Court, No. 132 at 10:30 a.m. on February 23, 2006]. He requests that the criminal action be declared time-barred and a dismissal (sobreseimiento) be ordered in his favor (cf. appeal, folios 172515 to 172519). **C. Absence of a Natural Judge.** His constitutional right to be judged by a natural judge (juez natural) was disregarded. This is so because to constitute the court, it was ordered to call Judge Rosaura García from the Judicial School, who assumed the presidency of the court, after which her return to the Judicial School was agreed upon. This demonstrates that she was brought in ex professo solely to resolve this case, and despite having returned to the Judicial School, she subsequently issued various resolutions, instead of her alternate doing so, as if the case were "hers." In contrast, Judge Camacho Morales was not brought in to issue those post-judgment resolutions (to resolve requests for addition and clarification to the judgment), but rather they were resolved with his alternate or substitute, which denotes the special treatment given to Judge García so that she would judge him (cf. appeal, folios 172520 to 172523). **D. Impediment to the exercise of his material defense.** During the trial, he was prevented from exercising his constitutional right of material defense (defensa material), which constitutes a violation of due process that renders the judgment null and void. This is so because the court prevented him from personally cross-examining the witness or expert [Nombre033], offered by the Office of the Attorney General of the Republic. The appellant indicates that he holds a doctorate in Economics, is a Professor at the University of Costa Rica in the Faculty of Economic Sciences, that he has also been a professor at the University of California, Berkeley, at the Universidad Autónoma de Centro América, at George Washington University in the District of Columbia, and at Universidad Carlos III in Madrid, and that he is a practicing attorney, which is why he and his defenders preferred that, being an expert on the subject, he conduct the cross-examination of the expert. However, the trial court did not allow it and his defense reserved the right to cassation (cf. appeal, folios 172524 to 172526). **E. Violations of due process, disregard of the Political Constitution and of the International Human Rights Treaties signed by Costa Rica.** The judgment is based on torture and on acts that have violated due process and his opportunity for defense. The constitutional rights of defense, of a natural judge, of not being punished without a final judgment, of not being punished without proof of guilt, and of not being subjected to cruel or degrading treatment have been violated. The violation of due process and of his rights, the media and political trial, and the continued psychological torture not only subconsciously conditioned the Court to the sole path of convicting him, but also give rise to a process "not conforming to the Law," which is his constitutional guarantee and that of every Costa Rican citizen. There is irreparable harm from the judgment that arises from the subconscious of the lady judges and from a process that was not governed by due process, for which reason he requests that the judgment be annulled and his acquittal be declared. **a. Fair trial, judge and its circumstances.** In this section, he says that there were not only errors during the trial and in the majority vote of the judgment, but also absolute defects that occurred throughout this entire process, before the trial, which have not been remedied or validated, being absolute. The Prosecutor's Office and a sector of the press decided to persuade erga omnes of his guilt, to condition and induce the activity of the judges toward a conviction. His detention occurred under conditions of unnecessary mockery and affront, and he was denied a fair trial. The lady judges, prior to reading the operative part of the judgment, in the session of April 27, 2011, said that they do not share the "...traditional notion of the judge who serves as the mouth of the law." That judges be the mouth of the law, according to Montesquieu, is the only way for trials to be conducted in compliance with the principle of legality of Articles 39 and 41 of the Political Constitution, according to which justice must be "*prompt, complete, and in strict conformity with the laws*." Thus, the judge is often the mouth of certain media outlets, a reflection of public opinion, demagoguery (cf. folios 172527 to 172532). **b. Media trial.** This case is a paradigm of the media or parallel trial that compromises the independence and impartiality of the judge, projecting a preconceived "solution" to the conflict (cf. folios 172532 to 172540). **c. Torture.** His human rights to dignity, not to be tortured, to protect his honor and his image, to his state of innocence, not to be exhibited as guilty, and to due process have been violated. The conviction arose under totally irreparable conditions due to the violations committed against his human rights, for which reason he requests that the judgment be annulled and he be declared acquitted. He was subjected to cruel and degrading treatments from his arrival at the Juan Santamaría International Airport, according to the facts described in section F and the evidence offered to corroborate it (cf. folios 172540 to 172545). **d. Constitutional violations, of international human rights instruments and of criminal norms.** It has been impossible to receive a fair trial since he voluntarily returned to the country on October 15, 2004, because of the senseless duration that turns the investigation into punishment, the arbitrary publicity that determines the deliberate media condemnation, the use of false evidence and the dungeon, the illegal detention, the torture and cruel treatment of exhibition and mockery, the imprisonment in the isolation of the dungeon for consecutive months, the lack of objectivity of the Public Prosecutor's Office and its deal with a principal perpetrator; the guarantees of the Political Constitution, of the international human rights instruments, and of the laws of the Republic have been breached. It falls to the Sentencing Appeals Court to repair those violations by declaring them, annulling the appealed judgment, and determining his acquittal. Mockery, disdain, disrepute fell upon him; he lost standing and liberty, and lived the bitterness of his family's suffering (cf. folios 172545 to 172566). **F. Events prior to the trial that have broken due process due to non-application or erroneous application of constitutional and legal norms that guarantee the state of innocence and the right to a defense.** In this section, he lists a series of events, prior to the trial (referring to the preliminary investigation stage), through which the constitutional, international, and national norms he pointed out in the previous point were violated (cf. folios 172566 to 172666). It is a breakdown of 129 "events" (as the appellant calls them, although some of these paragraphs, besides events, contain analysis and reflections on the circumstances that preceded the trial stage and the issuance of the judgment), as well as an interpretation of the actions or omissions, possible motives or eagerness of some of the protagonists and characters of that historical moment, which he describes, enumerates, and records under the following titles: a) Unjustified delay of the investigation (events No. 1 to 14, cf. folios 172568 to 172573); b) Violations of the secrecy of the preliminary procedure and the communicability between the Public Prosecutor's Office and certain media outlets (events No. 15 to 17, cf. folios 172573 to 172578); c) Illegal detention (events No. 18 to 25, cf. folios 172579 to 172581); d) Denial of the right to defense (events No. 26 to 39, cf. folios 172581 to 172603); e) Degrading public exhibition, cruel treatment, psychological torture (events No. 40 to 53, cf. folios 172603 to 172609); f) Use of false evidence to obtain a pretrial detention order (events No. 54 to 69, cf. folios 172610 to 172618); g) The confessed defendant [Nombre026]: from principal perpetrator to cooperating defendant. Improper actions by the Public Prosecutor's Office to try to grant him impunity (events No. 70 to 79, folios 172618 to 172642); h) Affront to the sovereignty of the judge and media trial (events No. 80 to 99, cf. folios 172642 to 172653); i) Politicization of the case (events No. 100 to 129, cf. folios 172653 to 172666). Since the judgment was based on a process conducted in an unconstitutional manner, with disregard for procedural norms that protect the state of innocence, the secrecy of the preliminary investigation (sumario), the natural judge, the right to defense, violation of personal liberty, disrespect for human rights, and torture, it is vitiated by absolute defects and must be annulled, so that, resolving the matter according to the applicable law, the acquittal of the appellant [Nombre012] is declared. ***Fourth Section.- Lack of reasonableness, balance, and proportionality in the determination of the penalty.*** The majority vote does not provide reasoning for the determination of the penalty at its maximum limit against [Nombre012]; it contradicts the determination made unanimously in the allocation of responsibilities in the civil actions, which infringes the rules of sound criticism (sana crítica) and causes irreparable harm, because lacking reasoning, the imposed penalty becomes arbitrary. In the event that—despite the serious objections that have been raised—the conviction against him is confirmed, he requests that the penalty be adjusted to its minimum limit and the benefit of conditional execution of the sentence (ejecución condicional) be granted, since the penalty imposed by the majority is evidently disproportionate, clearly excessive and unjust. The lady judges only reproach him for his status as former president, but they do not attribute control of the act (dominio del hecho) to him; they only go so far as to classify him as an instigator, given that the Prosecutor's Office itself stated in its closing arguments that [Nombre026] was the perpetrator with full dominion of the act. Positive factors for him were not taken into account, such as his age, his behavior before and after the alleged crime and throughout the entire process, all the humiliation suffered, his submission to the Administration of Justice, which is not the same as refusing to exercise his right of defense: "*The lady judges, in short, do not explain why I deserve to have the maximum limit of the penalty imposed on me and not the minimum, nor why they deny the benefit of conditional execution when all the objective and subjective conditions for its application are met: I am a first-time subject, I have a family, I work as a teacher at the University of Costa Rica despite being retired*" (cf. folios 172666 to 172670). ***Fifth Section.- Petition.*** Dr. [Nombre012] orders the claims of his appeal as follows:

"1) That ALL and each one of the petitions raised in this judgment appeal be DECLARED WITH MERIT" "2) That the annulment of the APPEALED judgment that was issued against me be declared and, based on the evaluation of the evidence received at trial and that requested for this appeal, I be acquitted of all penalty and responsibility by virtue of the fact that, as determined in Sections Three D and E, due to the violations of due process that involve violations of substantive constitutional law, of the international human rights treaties applicable in Costa Rica, and of criminal law, the lady judges were subconsciously determined to incur in all the violations of substantive and procedural laws during the process that were pointed out in those sections. In this way, the violations of the substantive laws expressly indicated in the First, Second, Third, and Fourth Sections can be remedied by the Court hearing this judgment appeal, declaring my acquittal, given the nonexistence of any evidence whatsoever that accredits the acts charged against me." "3) That, subsidiarily to the second petition, I be acquitted or dismissed for the reasons adduced in Section Two F as proposed by Judge Jorge Camacho and by reason of the illegality of the evidence on which the accusation and the judgment of the lady judges in their majority vote are based. That thus the illegality of exhibit 588 be declared, with which 'it is concluded that it is not possible to have any fact of the accusation proven, because all the evidence gathered in the process is illicit evidence, since the entirety of the investigation derives from one, or rather, from several constitutional violations in the obtaining of the evidence that guided the investigation from its genesis, and as there is no possibility of excluding the application of the fruit of the poisonous tree doctrine, such as the independent source of the evidence or the inevitable discovery of the same, nor any other exception that excludes the application of the exclusionary rule for illicit evidence, according to which, evidence obtained directly from a constitutional violation must be excluded from the process as well as all that which derives indirectly from the illicit evidence, which in this process is the entirety.'" (vote of Judge Camacho, page 1943 of the judgment, second part)" "4) That, subsidiarily to the third petition, I be acquitted or the proceedings dismissed for the reasons put forward in Section Three A, given that the only evidence against me originates from an illegitimate opportunity criterion. That the finding of Judge Jorge Camacho regarding the opportunity criterion be upheld, which insofar as it concerns me concludes: 'Thus, for the reasons set forth regarding the opportunity criterion, the co-defendant [Name012] must also be absolved of all punishment and responsibility for his participation as an instigator of the crime of aggravated corruption in the form of improper bribery in relation to [Name026].' (Vote of Judge Jorge Camacho, pages 1,996, 1997 of the judgment, second part)." "5) That, subsidiarily to petition four, the judgment against me be annulled and I be acquitted on the grounds that even if the statement of [Name026] were accepted as legal, which we reiterate IS NOT EVIDENCE and the opportunity criterion is illegitimate, the sole support for the majority vote against me would be that statement by [Name026], and there is a total absence of any evidence to support his statement, as has been explained and based on the legal violations claimed." "6) That, subsidiarily to petition five, the conviction handed down against me in the appealed judgment be annulled and my innocence be declared, since [Name026] acknowledges that regarding the alleged proposal by ALCATEL, he 'ACCEPTS IT IN PRINCIPLE,' meaning that at that very location, the [...] Restaurant, the crime would have already been CONSUMMATED, before he supposedly met with me at my house, which I repeat did not happen. That, in accordance with this, my acquittal be declared AS AN ALLEGED INSTIGATOR, given that ONE CANNOT INSTIGATE someone who is already DETERMINED." "7) That, subsidiarily, if declaring my acquittal is not considered appropriate, the trial be totally annulled and its repetition be ordered, excluding all illegal evidence, the facts erroneously held as proven, and the mistaken legal reasoning." "8) That the dissenting vote of Judge Camacho be upheld and the exceptions of statute of limitations (prescripción) in my favor be accepted, and in the event of any reclassification of the crime, that this statute of limitations be applied to me." "9) That, subsidiarily and if none of Judge Camacho's conclusions about evidence 588 and the opportunity criterion are accepted, it be determined that the statement of the confessing defendant [Name026] does not establish any proven fact signifying my participation as an instigator or in any other way in [Name026]'s crime of Aggravated Corruption in the form of Improper Bribery. And that the statute of limitations be applied to me." "10) That, subsidiarily to petition number nine, the penalty imposed against me be adjusted, having been illegally set at the maximum end of the punitive norm, when it has been evident that not only is the alleged conduct attributed to me much less reprehensible than that of the perpetrator ([Name026]), who has been granted absolute impunity, but the attribution of the criminal figure of instigation is atypical when it is evident that [Name026], from the very moment of the alleged offer, states that he 'accepted' it and that only later, thinking about it, at his home, about the implications of the offer he had accepted, does he decide to consult the undersigned, in case it became complicated, something which never happened, such that if [Name026] is exempt from punishment, I did not determine him and even less did I help him, the imposed penalty is disproportionate, I reiterate at its maximum end. That in the event, inconceivable to me, that I be convicted, it be done at the minimum end of the penalty and I be granted the benefit of its conditional execution." Finally, always in relation to Dr. [Name012], it is necessary to add that on folios 173372 and 173373 of volume XL, there is a letter from him addressed to the President of the Supreme Court of Justice, Dr. Luis Paulino Mora Mora, in which the appellant requests that he be guaranteed trial by natural judge, through a public draw.

**II.- THE APPEAL OF DR. [Name012] IS RESOLVED.-** On October 15, 2004, while serving as Secretary General of the Organization of American States and enjoying the prerogatives inherent to that high office, Dr. [Name012], of his own free will, returned to our country to submit himself to the "natural judge," to face the facts of this criminal case for which he was being investigated, to collaborate with the investigation of the real truth and thereby seek to make it clear that he is innocent, as he himself explained to this chamber during the oral hearing held between November 5 and 7, 2012 (cf. audiovisual record on DVD, files c000012110515000.vgz and c0000121105160000.vgz, from 15:47:00 to 16:47:29). During this process, Don [Name012] rejected all charges brought against him, maintaining that the facts imputed to him by the Public Prosecutor's Office are not true. In exercising his right to a material defense -which must be recognized and guaranteed equally to every human being-, Don [Name012] explained that the money he received from [Name026] was related to a simple loan that [Name026] made to him and which he has already repaid through judicial deposits. After having fully examined the conviction judgment handed down against him, it is clear to the judges subscribing to this vote that the Public Prosecutor's Office was unable to demonstrate that Dr. [Name012] had carried out the conduct attributed to him in the accusation, nor that the defense he presented to justify his conduct was false. The conviction judgment handed down by the majority of the trial court is unsustainable from a formal and substantial standpoint, due to its notorious lack of foundation and of criminal action. Our current Political Constitution, in force since 1949, guarantees that no one shall be made to suffer a criminal penalty without the necessary demonstration of their guilt (article 39 of the Political Constitution). In accordance with the laws of the Republic, since the guilt of Dr. [Name012] has not been demonstrated, since his material defense has not been rebutted, the presumption of innocence guaranteed to every accused of a crime by our Political Constitution and international instruments on human rights remains intact, particularly articles 11, paragraph 1 of the Universal Declaration of Human Rights (UN General Assembly of December 10, 1948); 26, first paragraph of the American Declaration of the Rights and Duties of Man (Ninth International Conference of American States of May 5, 1948); 14, paragraph 1 of the International Covenant on Civil and Political Rights (approved by Law No. 4229 of December 11, 1968); and 8, paragraph 2 of the American Convention on Human Rights (known as the Pact of San José, approved by Law No. 4534 of February 23, 1970), norms that are of immediate and direct application to this matter and which even have authority superior to laws, according to article 7 of our Political Constitution. Apart from alleging his innocence, Don [Name012], also in the legitimate exercise of his material defense, personally filed the appeals against the conviction judgment described in the preceding Considering (I) of this resolution, in which he has denounced a large number of errors of form and substance, some relating to the judgment, others to earlier stages of the process. From the entire set of issues proposed by Dr. [Name012] for the comprehensive review of the conviction judgment handed down by the majority of the trial court, it is clear that there are certainly some defects that determine the nullity of that majority ruling (whether these defects are considered independently or jointly). These defects, which by themselves imply the nullity of everything resolved, relate to the determination of the fact held as proven (A); that the criminal action was extinguished because the statute of limitations (prescripción) had taken effect (B), as explained below. **A) Defects in the process of determining the fact held as proven:** In the first place, errors of form are observed in the process followed for the determination of the fact held as proven, because it was essentially derived from illegitimate evidence and because the analysis and assessment of the evidence infringed the rules of sound criticism, rendering the judgment lacking in any foundation that could reasonably justify it, a defect that violates article 39 of the Political Constitution, according to which every criminal conviction is conditional upon a necessary demonstration of guilt. **A.1.- Spurious evidence.** Evidence that has been illicitly *obtained* cannot be lawfully incorporated into the process, according to the rule set forth in the first paragraph of article 181 of the Code of Criminal Procedure, which clearly states: "*Evidence shall only have value if it has been obtained by a lawful means and incorporated into the procedure in accordance with the provisions of this Code*." According to article 180 of that same legal text, "*The Public Prosecutor's Office and the courts have the duty to seek for themselves the investigation of the truth through permitted means of evidence...*", which must be understood in light of the general principle stated in article 175 of that same legal body regarding defective procedural activity:

«*Acts carried out in disregard of the forms and conditions provided for in the Constitution, in International or Community Law in force in Costa Rica, and in this Code may not be evaluated to support a judicial decision or used as its premises, unless the defect has been cured, in accordance with the norms governing the correction of judicial actions.*» Our Constitutional Chamber broadly developed the general right to legality, indicating that:

«*Although the principle of legality and the corresponding right of all persons to legality—and, of course, above all, to constitutional legality and legitimacy—seem to refer more to substantive than procedural problems, they nonetheless have important repercussions on due process, even in its strictly procedural sense.*» «*In the most general terms, the principle of legality in the rule of law postulates a special form of binding of public authorities and institutions to the legal system, based on its basic definition according to which every public authority or institution exists only and may only act to the extent it is empowered to do so by the same legal system, and normally by express text—for public authorities and institutions, only what is expressly authorized constitutionally and legally is permitted, and everything not authorized is prohibited—; as well as its two most important corollaries, still within a general order: the principle of minimum regulation, which has special requirements in procedural matters, and that of legal reserve, which in this field is almost absolute. In our Political Constitution, the general principle of legality is enshrined in Article 11, and follows, moreover, from the context of this article with Article 28, which establishes the general principle of freedom—for private persons—and guarantees the legal reserve to regulate it, with Article 121, especially insofar as it grants the Legislative Assembly exclusive powers to legislate (subsections 1, 4, and 17), to create 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 cannot be delegated nor, therefore, shared with any other power, body, or entity (Article 9), and which generate even more explicit consequences such as those contained in the General Law of Public Administration, mainly in its Articles 5 and 7—which define the normative hierarchies—, 11—which enshrines the principle of legality and its corollary of minimum regulation—, 19, and 59.1—which reaffirm the principle of legal reserve for the regime of fundamental rights and for the creation of public powers with external effect—. Likewise, bear in mind that in Costa Rica, such legal reserve is confined to the formal law emanating from the legislative body, given that any delegation among public powers is constitutionally prohibited (Art. 9), thus making acts with the force of law unthinkable, at least in situations of normality.*» «*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 law, that is, to norms emanating from the legislative body and through the law-making procedures, with total exclusion of autonomous regulations and almost total exclusion of the executive regulations of the laws themselves; as well as that procedural law must be sufficient to discipline the exercise of jurisdictional function and the activity of the parties before it, such that no significant gaps remain to be filled by regulatory or subjective means; and, finally, that the requirements of procedural law must have guaranteed efficacy, material and formal, to the point that in this matter, violations of mere legality become, by virtue of the principle, automatically violations of due process, therefore of constitutional rank.*» (emphasis supplied, Constitutional Chamber, No. 1739-92 at 11:45 hours on July 1, 1992).

However, the facts that the majority of the trial court has held as proven were essentially derived from two unsuitable sources: on one hand, they were derived from illegitimate evidence—evidence that was illicitly obtained—, specifically from the so-called "evidence 588" (documentary). On the other hand, the facts were also derived from the testimony of the defendant [Name026], but this was erroneously analyzed and assessed by the trial court. The erroneous consideration of these two sources of knowledge invalidates the determination of the fact that was held as proven (since, moreover, there are no other distinct, legitimate, and suitable elements of evidence from which to derive the existence of the accused fact), as explained below. **a.- The illegality of "evidence 588" that gave rise to the case called 'Caja-Fischel' and to the present matter.** Documentary evidence No. 588 is a certified copy of the Judicial Assistance from the Republic of Panama, which was obtained at the request of our Office of the Attorney General of the Republic from the National Director for the Execution of Treaties on Mutual Legal Assistance and International Cooperation of the Ministry of Government and Justice of the Republic of Panama. It contains banking information for the Panamanian company Marchwood Holdings and was obtained without a judicial order (placing it in the same situation as other evidence that was brought into the process under identical circumstances and which the trial court itself confirmed is illicit evidence, by resolution at 8:00 hours on May 14, 2010, cf. Volume XXVII, folios 13352 to 13408 verso, rejecting the request of the Public Prosecutor's Office for a declaration that those other pieces of evidence were lawful and for their admission to be presented at trial, after having been excluded by the judge of the intermediate stage). Evidence No. 588 is *essential* in this matter because it was what allowed the Public Prosecutor's Office to learn of the existence of Servicios Notariales Q.C.S.A. and, based on it, to request the lifting of bank secrecy in relation to said company in the National Banking System, which involves all the evidence obtained in relation to Servicios Notariales Q.C.S.A. through Banco Cuscatlán de Costa Rica, Cuscatlán International Bank, or the Cuscatlán Group, and in general all the evidentiary activity originating from the constitutional violation related to evidence No. 588. The defense of the defendants agrees that there is no independent source prior to the constitutional violation from which the evidence could have been obtained and that it could not have been inevitably discovered either, so there is no possibility of excepting the exclusionary rule for illegal evidence. In contrast, the Public Prosecutor's Office considers that evidence No. 588 is lawful based on the consent of [Name032] for its use. The majority of the trial court considered that evidence 588 is lawful and devotes a large part of Considering II of the judgment to justifying that criterion (in the section titled "Objections to evidence No. 588 and all the banking documentation obtained from the 'Caja-Fischel' case brought to this process and derived from said evidence"), noting that in any case, the same data are derived from the statement of [Name032] (whom it considers the sole holder of the right to privacy of that banking information, who has consented to its use), doing so on the basis of jurisprudential criteria of the Supreme Court of the United States of America (cf. judgment, pages 889 to 952). Conversely, the dissenting vote of Judge Camacho Morales begins precisely with the analysis and assessment of evidence 588, which he considers was obtained illegally and cannot be used to support the judgment, because it was obtained without a reasoned order from a judge (cf. judgment, dissenting vote, pages 1903 to 1943). He explains that the rightsholder's consent must be prior to the act, according to the doctrine of Professor Francisco Castillo Gonzáles and the jurisprudence of the Third Chamber (votes No. 111 at 8:40 hours on March 26, 1993, and No. 604-2008 at 12:10 hours on May 23, 2008) and the Court of Criminal Cassation (No. 308 at 17:00 hours on April 7, 2008), and notes that although some vote of the same Chamber appears to contradict this thesis and that the Public Prosecutor's Office invokes in its favor, it is not a case that faithfully reflects the dominant criterion (specifically vote No. 232 at 17:00 hours on March 11, 2011, which was handed down by substitute magistrates). He also states that curing this defect through the subsequent consent of [Name032] is not possible:

«*In the present matter, it is evident that the consent of [Name032] is subsequent to, and not prior to, the impact on the constitutional right to privacy, since approximately six years after the evidence was obtained illegally, due to the lack of a judicial order, as this Court resolved in a resolution at 8:00 hours on March 14, 2010, the Public Prosecutor's Office, knowing this Court's criterion, approached the alleged legal representative of the offended company (Marchwood Holding), Mr. [Name032], and asked him to consent to the illegally obtained evidence in Panama, concerning his represented party, being used in this process and to validate with his consent the way it was obtained and the use given to it in stages of the process prior to trial, to which Mr. [Name032] agrees by signing the document incorporated as documentary evidence No. 759, dated May 17, 2010, three days after the aforementioned resolution of this Court. Said consent does not meet the minimum requirements to operate as a cause for justification and eliminate the criminal nature of the Public Prosecutor's Office's intervention. If said evidence were admitted, the State would be allowed to take advantage of actions by its officials—which could be criminal—to judge and criminally convict citizens, thereby losing all ethical legitimacy to impose a sanction.*» (Judgment, page 1923).

Judge Camacho Morales links this issue with the jurisprudence of the Constitutional Chamber on the principles of amplitude of evidence and legitimacy of evidence:

«*a) The principle of the amplitude of evidence: Given that the purpose of the procedure is, above all, the real investigation of the facts, both the Public Prosecutor's Office and the judge have the duty to investigate that objective truth diligently, without disdaining any legitimate means of evidence, especially if offered by the defense it is not manifestly impertinent, and even ordering for better provision whatever is necessary, even if offered irregularly or untimely.*» In criminal matters, everything can be proven and by any legitimate means, which implies, of course, the absolute prohibition of using illegitimate means of proof and of giving them, if they in fact exist, any formal or material significance.</i>.»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>b) The principle of the legitimacy of evidence: The latter raises, certainly, a difficult issue, which appears at the heart of the case giving rise to this consultation, namely, illegitimate evidence, its formal treatment and its assessment, a topic on which criminal and constitutional doctrine and jurisprudence have not yet reached a consensus. However, this Chamber has already been adopting a position, if not unanimous, at least constant, based on the hypothetical suppression of the spurious evidence, in the sense that, <u>besides denying it all probative value in itself</u> -on which there seems to be no discussion-, <u>it is suppressed from the process, that is, it is assumed that it did not exist and, therefore, other evidence, not illegitimate per se, is also invalidated insofar as it was obtained through it</u>. The differences between the majority and the minority of the Chamber have been rather of nuance and degree attributed to the said principle of hypothetical suppression, so it can be said that this is the criterion supported by the binding erga omnes value of the precedents and jurisprudence of the Constitutional Jurisdiction, ordered by Article 13 of its Law -in this sense, see, for all, for example 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, among many others</i>-.» (underlining not in original, Constitutional Chamber, No. 1739-92 of 11:45 a.m. on July 1, 1992).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>This Chamber in its pronouncements has also indicated that incriminating evidence cannot be assigned that sole purpose</i> [of demonstrating the accused's guilt with certainty], <i>but also that of being<span style='mso-spacerun:yes'> </span>a guarantee for the realization of a fair process, eliminating judicial arbitrariness, since the fundamental right of the presumption of innocence requires, in order to be rebutted, evidentiary activity obtained while respecting fundamental rights</i>» (Constitutional Chamber, No. 2001-7341 of 2:38 p.m. on September 12, 2001).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Among the different interpretations on the lawfulness or not of evidence, we have the theory of spurious evidence.<span style='mso-spacerun:yes'> </span>Theory of spurious evidence or theory of the fruits of the poisonous tree (fruit of the poissones tree doctrine), which supposes that whenever an evidentiary medium originating from a constitutional violation provides elements of guilt for the accused, the act producing the evidence is null and void, as is all evidentiary medium derived from it.<span style='mso-spacerun:yes'> </span>In that same line of thought, we find the relative position, called the ‘independent source’, according to which, if the evidence derives from an act violating constitutional guarantees, but also originated from another autonomous element gathered during the investigation and <u>prior</u> to the constitutional violation, the evidence remains valid, because that evidence came from another element, and not necessarily from the act violating the Constitution.<span style='mso-spacerun:yes'> </span>This Chamber, in vote 701-91, already stated: ‘...the thesis of the majority of the Chamber regarding the validity of evidence related to illegitimate evidence can be synthesized by saying that the former retains its validity as long as it does not have the latter as its origin’, understanding then that the causal chain producing the evidence must be studied, with evidence being spurious and null that comes exclusively from a violation of the Constitution</i>» (underlining not in original, Constitutional Chamber, No. 02529-94, cited in No. 2005-04707 of 3:03 p.m. on April 27, 2005).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>And it is in this manner that Judge Camacho Morales concludes that not only is evidence No. 588 null and void, but also all other evidence that originates or derives exclusively from it and that, applying the method of hypothetical suppression of the unlawful evidence, the accused fact must be deemed unproven, since there are no other independent or autonomous evidentiary elements prior to the violation of the Political Constitution. Judge Camacho Morales explains that the Public Prosecutor's Office's own accusation corroborates that it is the evidence obtained in Panama, in relation to Marchwood Holding, that allowed the discovery of Servicios Notariales Q.C.S.A. (cf. accused fact No. 190 on page 45), and adds:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>In the previous fact</i> [No. 190, page 45] <i>it is clear, and the Public Prosecutor's Office itself affirms it, that it was the evidence obtained in Panama that led to the discovery of Servicios Notariales Q.C.S.A. and that said evidence was the basis for the news published by the media in relation to Servicios Notariales Q.C.S.A., evidence that is precisely what is declared unlawful in this majority vote, also demonstrating that there was a transfer of information from the Public Prosecutor's Office to the media in flagrant violation of the duty of privacy provided for in numeral 295 of the Criminal Procedure Code and 22 subsection 3 of the Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones</i> [Law No. 7425]<i>, conduct that could constitute the crime of disclosure provided for in numeral 24 of the same Law</i>» (Judgment, page 1939).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>Judge Camacho Morales also points out that from the testimony of [Nombre032] it can be clearly established that on his part, in relation to his allegedly represented company Marchwood Holding, there was never prior and express consent for obtaining documentary evidence No. 588, but rather that said authorization occurred several years after the evidence was obtained in Panama (cf. Judgment, pages 1939 to 1940).<span style='mso-spacerun:yes'> </span>He then concludes that:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«…<i>it is not possible to deem any fact of the accusation proven, because all the evidence gathered in the process is unlawful evidence, as the entire investigation derived from one, or rather, from several constitutional violations in the obtaining of the evidence that guided the investigation from its genesis, and since there is no possibility of excluding the application of the doctrine of the fruits of the poisonous tree, such as the independent source of the evidence or the inevitable discovery thereof, nor any other exception that excludes the application of the exclusionary rule of unlawful evidence, according to which, evidence obtained directly from a constitutional violation must be excluded from the process as well as all that which derives indirectly from the unlawful evidence, which in this process is the entirety</i>.»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>The foregoing is sufficient reason to absolve all the accused of all penalty and responsibility, given the impossibility of establishing, with lawful evidence, any link of the funds that, according to the accusation, they received with Servicios Notariales Q.C. and with Alcatel Cit.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>The appealed judgment was issued on April 27, 2011, and a few days later the Third Chamber of the Supreme Court of Justice issued the judgment resolving the appeals on cassation that had been filed in the case known as «Caja-Fischel» (judicial case file (expediente) No. 04-005356-0042-PE).<span style='mso-spacerun:yes'> </span>By majority decision, Magistrates Ramírez, Pereira, and Chinchilla declared the nullity of all evidence gathered in Panama through the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (T.A.L.M.), as well as all evidentiary elements directly dependent on it (cf. Third Chamber, No. 499 of 11:45 a.m. on May 11, 2011, folios 14004 to 14014, 14042 to 14043 and 14541 of case file (expediente) No. 04-005356-0042-PE, there is a dissenting vote (voto salvado) by Magistrates Arroyo and Víquez), which in our understanding definitively resolves the discussion on the legitimacy of this documentary evidence, in the same sense as expressed by Judge Camacho Morales and in the same manner as considered by this Chamber of Appeals.<span style='mso-spacerun:yes'> </span>The Third Chamber indicates:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<b>Regarding the challenge against the validity of the Panama evidence</b>: By a majority composed of Magistrates <b>Ramírez Quirós, Pereira Villalobos and Chinchilla Sandí</b>, this extreme of the claim is declared with merit, also formulated through the second ground of appeal, decreeing the nullity of the evidence gathered in Panama through the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (T.A.L.M.) and all evidentiary elements directly dependent on it. To analyze the claim of the appellants, we must first go back to the origins of the 1996 Criminal Procedure Code reform, which is inspired by respect for human rights, whether the person is an accused or a victim. Regarding the accused, which is the point under discussion, the principle of Innocence is established as the foundation, from which derives, among others, the need for a prior trial and that the process be the one regulated by the Code, as also determined 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, treaties that, as they all refer to the fundamental rights of the person, are and must be analyzed with primacy over any mutual legal assistance treaty between countries, thus Article 2 Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. Returning to the background of the Criminal Procedure Code currently governing us, one of the fundamental aspects it retakes is respect for Due Process and it places special emphasis on the Inviolability of the Defense (Article 39 of the Political Constitution), for this reason we have affirmed, with great success, that the reform in question is nothing more than the constitutionalization of Criminal Procedural Law. Under this conception, the legislator considered that the investigation of criminal cases should be directed by the Public Prosecutor's Office, precisely for greater control in the manner of bringing evidence into the process, in strict compliance with the Constitution and the law; in other words, the Public Prosecutor's Office, which is in charge of investigating crime, must direct the actions of investigative officers, in order to bring, through all lawful means at its disposal, evidentiary elements into the process; the foregoing implies the absolute prohibition of using illegitimate means of proof which, consequently, the Judge cannot give any formal or material significance, because the procedural order, under no circumstances, tolerates the sacrifice of constitutional guarantees that protect the citizen in favor of the search for truth in the criminal process (in this sense, the Judicial Investigation Agency (Organismo de Investigación Judicial), the Public Prosecutor's Office, and the Judge must strictly adhere to the Constitution, International Human Rights Treaties, and the Law) because the legitimacy of the acts and their lawfulness become the only valid criterion to be taken into consideration by the judge in resolving a specific case; the contrary means the obligation of the hierarchical superior to declare, even ex officio, the ineffectiveness of the procedural act. In the specific case, the evidentiary elements obtained in the Republic of Panama, although it is true, according to the internal laws of that country, in which, due to the constitutional rank of the Public Prosecutor's Office prior to the reform of the Criminal Procedure Code of Panama in the year two thousand eight, it had the power to lift bank secrecy without jurisdictional authorization in the process of an investigation in that country, and therefore, as indicated by the appealed ruling, in the procedure carried out in that country, there is no violation of internal Panamanian law, whence for that legal order, the evidence is obtained legally; there is a serious procedural defect from the outset that occurs in Costa Rica, regarding the application of the Criminal Procedure Code which requires the Public Prosecutor's Office to make the request for lifting bank secrecy to the Judge of Guarantees (Juez de Garantías), to arrange before the Central Authority (pursuant to the Mutual Legal Assistance Treaty) for assistance in order to bring from that country evidence that implies violating the sphere of privacy of their accounts and private correspondence; this absolute procedural defect, in our judgment, has been overlooked by all the authorities intervening in process number 04-005356-042-PE, arguing that, since in Panama the Public Prosecutor's Office is empowered to carry out the act, in our country the Public Prosecutor's Office can arrogate to itself the right to request directly from the Central Authority (Procuraduría General de la República) the execution of the proceeding, without the assessment of the Judge of Guarantees being necessary; an interpretation which, in our judgment, can in no way be endorsed by those of us who have been appointed as the last instance to which the parties can appeal for satisfaction and protection of the fundamental rights of their clients. It cannot be valid in our Democratic Rule of Law State that, for the sake of agile compliance with the prosecution of individuals accused of the alleged commission of criminal acts, without distinction of the person involved, the rights that assist individuals accused of a crime are arbitrarily and illegitimately trampled upon (by those who at that determined moment had the functional direction of the process in the Public Prosecutor's Office), with an erroneous interpretation of unlimited powers, from the very moment they are considered suspects of committing that criminal act. It is clear that our democratic system, in its Legal Order, has opted for the wise decision of leaving it in the hands of the competent jurisdictional body to ensure the protection of fundamental rights (among which are the right to privacy, the secrecy of communications, and the inviolability of private documents), which is why it authorizes, under exceptional and previously established circumstances, the cases in which these may be restricted, specifically for the knowledge of matters submitted to the Courts of Justice, in which the judge can order the lifting of that secrecy. In the present case, that jurisdictional assessment was required to request the Central Authority, pursuant to the cited treaty, to give the corresponding processing to the request for assistance that the Public Prosecutor's Office required to bring documentary evidence from Panamanian banks into the investigation; this is so because it must be the judge who weighs the necessity, utility, pertinence, and proportionality of the request made by the body in charge of the investigation. It is important to note here that the interpretation given in this process by the Public Prosecutor's Office is erroneous, a body that, in our understanding, is the first that must be clear about its function and its investigative powers, to the extent conferred by the Constitution and the current Law, so as not to carry out an action that, it should have known, disregarded the limits that the legal order imposes on it by directly requesting the Procuraduría General de la República to process a request for assistance to Panama, which should have been previously authorized by the Judge of Guarantees, since it implied violating the fundamental rights of individuals subject to proceedings in our country and that, as is known to each and every one of the justice operators in Costa Rica, ordinary legislation requires that: a) the order be duly substantiated. b) If possible, individualize the documents on which the decision will be executed, the name of the person holding them, and the place where they are located. c) Have as a prerequisite a criminal activity, with a determination of a verified indication regarding its commission. All these aspects require prior weighing of the necessity, suitability, and proportionality of the request that the Public Prosecutor's Office should have brought to the attention of the jurisdictional authority; it would be a gross error to conclude, as the lower court (a quo) does, and the dissenting opinion of this Chamber endorses, that this implies giving an order to the Panamanian authorities; quite the contrary, it constitutes the endorsement of the jurisdictional authority of Costa Rica so that the Central Authority of our country, pursuant to the repeatedly cited treaty, proceed with what is stipulated before the competent authority of Panama. The foregoing is not a mere formality; it constitutes the procedural act that legitimizes, according to the internal order, the ordered intrusion into the private sphere of a person, because it is neither the function nor the power of the Attorney General, nor of the representatives of the Public Prosecutor's Office, to require and obtain confidential information about individuals without prior authorization from the Judge ensuring respect for the fundamental rights of citizens subject to proceedings. This is concluded from the provisions of Articles 24 of the Political Constitution, 12 of the Universal Declaration of Human Rights, 11, subsections 2 and 3 of the American Convention on Human Rights, and 17 of the International Covenant on Civil and Political Rights, all embodied in Articles 2 and 3 of the Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de la Comunicaciones, No. 7425 (a law that even criminally penalizes its non-compliance) and 107 of the Organic Law of the Judicial Branch. The power that the Criminal Procedure Code establishes, in its Articles 226 and 290 final paragraph, for the Public Prosecutor's Office to request reports from private individuals or public entities, according to what is stipulated, is valid as long as it does not involve private information, protected by Article 24 of the Political Constitution; otherwise, according to the second paragraph of Article 181 of the CPP, it implies a violation of Due Process, due to infringement of the fundamental right to the privacy of private documents. The Mutual Legal Assistance Treaty aims to strengthen and facilitate the cooperation of the justice administration bodies of the region, through an instrument that allows assistance in criminal matters, but it is clear that it must be done with full respect for the internal legislation of each Member State; what is replaced is the cumbersome consular procedure; to streamline communication channels, in no way can its content have repercussions on the system of applicable guarantees in the country, so much so that its preamble expressly establishes that such assistance is provided with full respect for the internal legislation of each State. As mentioned at the beginning of this vote, the possibility of streamlining procedures cannot become an open letter to arbitrariness, arrogance, and disrespect for constitutional guarantees and the current internal order. It is not legitimate that, as happened in the present case, representatives of the Public Prosecutor's Office even travel to another country in order to be present at the collection of evidence and do not take the minimum time to correctly make the request before the corresponding jurisdictional authority, thereby sacrificing essential evidence for the resolution of the case submitted to the knowledge of the Costa Rican courts, having to decree the ineffectiveness of the act performed in violation of Due Process and which, moreover, entails time and money that all Costa Ricans must also pay. On previous occasions, this Chamber has already declared the ineffectiveness of actions in similar procedural acts in which the Public Prosecutor's Office, in carrying them out, has acted contrary to the law, with very regrettable consequences for the correct administration of justice, and in this aspect, as noted at the beginning, without distinction of the person subject to the process, the law is equal for all and, consequently, it is not about achieving a conviction at all costs, but that which results from the correct introduction of evidence into the process, in accordance with the Constitution and the law in force in the country, and its consequent assessment, in strict adherence to the rules of sound criticism (sana crítica), such that the accusing entity must be the first interested in presenting a case to the jurisdictional body, not only with the possibility of making its thesis prevail in the adversarial proceedings of the debate, because it possesses sufficient evidence, but that this evidence is effective because in its collection it has respected the constitutional guarantees that protect the person subject to process. On this topic, it has been sustained in the doctrine “…<i>In our context, the constitutional structuring of procedural norms has always been under discussion. For example, information obtained in violation of constitutional guarantees cannot be used; therefore, Article 96 of the New Criminal Procedure Code (NCPP) conditions the validity of the act on respect for the fundamental rights of the person, except ‘when it favors the accused’ (Art 181 NCPP). The doctrinal current is maintained that orders that this type of irregularities are not susceptible to validation in accordance with Article 178 NCPP and must be declared ex officio by the Judge, provided they imply non-observance of rights and guarantees not only in the Constitution but also in current International or Community Law</i>.” (ARMIJO SANCHO, Gilberth, Garantías Constitucionales, Prueba Ilícita y Transición al Nuevo Código Procesal Penal. Premio Anual. Alberto Brenes Córdoba, page 127). Consistent with this position, national jurisprudence has leaned towards the doctrine of “<i>the fruits of the poisonous tree</i>” in the sense that evidence obtained as a result of unlawful evidence has no probative value. It is important to reaffirm that, despite the supra-legal status held by the TALM, it does not place it above the Political Constitution, given that this condition is only achieved by Human Rights treaties (Article 48 of the Political Constitution). In conclusion, the obtaining of the evidentiary elements that were brought into the criminal process against, [Nombre032], [Nombre037], [Nombre021], [Nombre038], [Nombre039] known as [Nombre040] and [Nombre041], through the letters rogatory to Panama and their extensions, without observance of the constitutional and legal guarantees that govern the ability to request their obtaining according to the internal order in Costa Rica, constitute spurious evidentiary elements, illegitimately incorporated into the process. Through absolutely defective procedural activity, their ineffectiveness is declared, as well as that of the other evidentiary elements that directly derive from it, specifically: the documentary evidence obtained through the Letters Rogatory to Panama and their extensions, the investigative statement (declaración indagatoria) of [Nombre032], insofar as it is based on the Panama evidence; the testimonies of [Nombre042], Panamanian Prosecutor, [Nombre043], assistant Panamanian Prosecutor, [Nombre044], Director of the Office for Execution of the Legal Assistance Treaty, all witnesses who refer to the evidence whose ineffectiveness is declared in terms of content and method of obtaining; the OIJ Report No. 200- DEF-495-04-06, insofar as it refers to the Panama evidence; statement of the experts from the Judicial Investigation Agency (Organismo de Investigación Judicial), [Nombre045] and [Nombre046] insofar as it corresponds to the referenced evidence. Lastly, it is necessary to analyze the <b>validation that the lower court (a quo) performs on all the evidence based on the letters rogatory to Panama and their extensions, in hearing number 156 of the debate, with the Court supporting its decision on the “authorization” given by the accused [Nombre032] when giving his investigative statement (declaración indagatoria)</b>; which is absolutely illegal. First of all, because, since there are several accused who file the Defective Procedural Activity (Actividad Procesal Defectuosa) motion, having seen their fundamental rights affected, as the procedural act through which the evidence was obtained did not observe respect for Due Process; the fact that Mr. [Nombre032] himself desists from his incidence for Defective Procedural Activity, an action also taken by his technical defense, cannot validate an act that affects other co-accused in the case, whose fundamental right to privacy of their documents has been violated. The citation made in the minority vote of the jurisprudence of this Chamber in no way corresponds to the issue raised here, because in that case there is no harm to the fundamental rights of other implicated parties and the evidence was only important in proving a fact between the one who authorizes it and the offended party.

In addition to the foregoing, the authorization that relieves the necessary intervention of the Judge is only valid insofar as it is given prior to the performance of the procedural act; in this regard, see the provisions of the first paragraph of Article 29 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications, No. 7425, a provision that must be harmonized with the provisions of Article 24 of the Political Constitution and Article 1 of the Criminal Procedure Code. In a second and very important aspect, Article 29 of the special law cited expressly provides that the authorization to access banking documentation, when there are several account holders, must be given by all of its holders. It is established in the case file that the holders of account [Valor034] at BAC INTERNATIONAL BANK OF PANAMA ARE [Nombre032] AND [Nombre047]; this constitutes the main account, as it is the one opened in Panama for the purpose of receiving, as established in the appealed judgment, the monies paid by the company Instrumentarium Corp. Medko Medical, monies that are then transferred to their personal accounts Marchwood Holding, Harcourt Holding, Walka, and to the personal account of the co-defendant [Nombre037], according to the evidence whose ineffectiveness is declared in the majority vote. The foregoing means that, although [Nombre032] held representation, with the possibility of acting individually, this cannot be validly interpreted, in contravention of the law, as the lower court (a quo) does in the challenged resolution, because Article 29 of Law No. 7425 of August 9, 1994, expressly requires the authorization of all holders, and this is so precisely because that authorization implies intrusion into the sphere of personal intimacy and the privacy of documents, protected in the Political Constitution, whereby the decision made by one of its holders cannot violate that right over the others. Consequently, the Court's decision to validate the defective procedural activity affecting the letters rogatory to Panama and their extensions is an act that does not comply with the provisions of the law; therefore, it does not have the effect of validating the vitiated act and does not in any way affect what has been stated regarding the declaration of ineffectiveness of all evidence originating from Panama. Judges Arroyo Gutiérrez and Víquez Arias dissent.

If, according to the precedent of the Chamber, that documentary evidence and its direct derivatives are null and void for that matter, they are necessarily also null and void for the present case, which is a derivative of the former. It is not superfluous to add that disregarding this precedent of the Chamber would give rise to a contradiction that could eventually constitute grounds for cassation (Article 468, subsection a) of the Criminal Procedure Code). Thus, evidence 588 and all evidentiary elements directly dependent on it are null and void. With this documentary evidence suppressed, only the statement of the collaborating defendant [Nombre026] remains. b.- Regarding the existence of a parallel and independent line of journalistic investigation. During the oral hearing, the Prosecution stated that it would take the opportunity to give "complementary arguments to those raised in the judgment to support the lawfulness of this evidence" (cfr. audiovisual record c0002121107132843.vgz, from 13:42:10 to 13:42:30) and insisted that not only is evidence No. 588 lawful, but also that there is an uninterrupted, parallel, and independent line of journalistic investigation, which may also be a source of independent evidence for the accreditation of the fact constituting the object of this judicial process, according to jurisprudence or doctrines of the Supreme Court of the United States of America. It refutes the criterion expressed by our Third Chamber in judgment No. 2011-499 (Caja-Fischel case) to argue that Mr. [Nombre032] is indeed legitimized to authorize the use of evidence 588. This Chamber does not share the Prosecution's criterion. As stated in the previous section—to which we refer to avoid unnecessary reiterations—evidence No. 588 is illegal, as are all evidentiary elements that derive directly from it, according to the Political Constitution and Costa Rican laws, which allow the matter to be resolved directly, as the Third Chamber of our Supreme Court of Justice did. Nor is the thesis that the judgment's reasoning can be "complemented" through this avenue of challenge, or that the fact that is the object of the process can be derived independently from the journalistic investigation, admissible, for the following reasons. Firstly, because it is the judges of the trial court, not the prosecutors, who have the power to reason the conviction judgment. The prosecution cannot complement or integrate reasons to make up for the lack of reasoning of a judicial resolution that is being challenged (the judgment must be self-sufficient regarding its reasoning). Secondly, because, in principle, the manner in which the media obtain information protected by Article 24 of the Political Constitution cannot be presumed lawful, if they have obtained it from a supposed "confidential source" or by means different from those prescribed by the Political Constitution and the laws of the Republic. Information in such a situation may perhaps be recorded in their news reports or give rise to new lines of journalistic investigation (even as a legitimate exercise of the right to information) and thus give rise to valuable debates of public interest, but it definitively cannot be incorporated into the criminal process to support a conviction, because there is an impassable limit imposed by Article 181 of the Criminal Procedure Code:

«*Evidentiary elements shall only have value if they have been **obtained** by a lawful means and incorporated into the procedure in accordance with the provisions of this Code.*» «*Unless it favors the defendant, information obtained through torture, mistreatment, coercion, threat, deceit, undue intrusion into the intimacy of the home, correspondence, communications, private papers and archives, or information obtained by any other means that impairs the will or violates the fundamental rights of persons, may not be used.*» (underlining supplied).

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

«*In general, all banking activity involving contracts, applications, and any other type of relationship with private individuals—as clients—is, by its nature, covered by bank secrecy.* -» «*The operations that private individuals carry out with banks—as subjects of private law—constitute, both in their obtaining and in the form and manner of their constitution and service, private documents that are covered by the protection established by Article 24 of the Constitution—unless, by their nature, they must be recorded in public documents or registries, also public, from which, and without the bank's intervention, the information they contain could be obtained—so the bank cannot provide it except in the cases and in the manner that said article provides for this purpose.*» (Constitutional Chamber, No. 578-92 of 10:45 hours on February 28, 1992).

Article 615 of the Commercial Code provides that:

«*Current bank accounts are inviolable and banks may only supply information about them at the request or with the written authorization of the owner, or by order of a competent judicial authority. Excepted is the intervention that, in compliance with its functions determined by law, the Superintendencia General de Entidades Financieras or the Dirección General de Tributación authorized for this purpose makes.*» The "Law on Registration, Seizure, and Examination of Private Documents and Intervention of Communications" (Law No. 7425 of August 9, 1994) is the special legislation that—in compliance with Article 24 of the Political Constitution—establishes in which cases Courts of Justice may order the seizure, registration, or examination of private documents when it is absolutely indispensable to clarify matters submitted to their knowledge. From a constitutional and legal standpoint, when it is absolutely indispensable to lift bank secrecy in order to clarify a matter submitted to the knowledge of a Criminal Court, that information *can only* be obtained by the Courts of Justice and necessarily in the manner provided by the law governing this matter. In any case, the alleged line of journalistic investigation is not even prior to and independent of the act of judicial assistance from Panama that vitiated evidence No. 588, since all the articles are subsequent to or expressly refer to the prosecution's investigation as the source of information. A.2.- The statement of the defendant [Nombre026]. The participation attributed to Mr. [Nombre012] is derived by the court from the testimony of [Nombre026]. a.- General considerations on the evaluation of the statement given by a "collaborating defendant". The principle of opportunity is an exception to the principle of legality (principio de legalidad), according to which the Public Prosecutor's Office is responsible for exercising public criminal action (acción penal pública) in all cases where it is appropriate, in accordance with the provisions of the law. In this sense, the principle of legality seeks to guarantee legal certainty and equality in the application of the law. But Article 22 of the Criminal Procedure Code regulates a list of exceptions to that rule, which it calls "criteria of opportunity" (criterios de oportunidad). These are very specific cases in which, with prior authorization from the hierarchical superior, the representative of the Public Prosecutor's Office may request that the criminal prosecution be waived, totally or partially, or limited to one or several infractions or to some of the persons who participated in the act. Of these cases, we are interested in the one provided for in subsection b) of Article 22 of the Criminal Procedure Code, which reads as follows:

«*It involves matters of organized crime, violent criminality, serious crimes, or complex processing, and the defendant collaborates effectively with the investigation, provides essential information to prevent the continuation of the crime or the perpetration of others, helps to clarify the act investigated or other related acts, or provides useful information to prove the participation of other defendants, provided that the conduct of the collaborator is less reprehensible than the punishable acts whose prosecution he facilitates or whose continuation he prevents.*» This hypothesis is called by some "Crown Witness" for historical reasons (relating to the origin and development of the institution in the Anglo-Saxon system, meaning witness of the King or Queen), while others call it—in a form that is more than imprecise, pejorative—"repentant" witness, "informer," or "snitch." Because Costa Rica is a Republic in which the dignity of persons is respected (Articles 1 and 33 of the Political Constitution), we choose to refer to this subject as a "collaborating defendant" (imputado colaborador), as these are the terms in which Article 22 of the Criminal Procedure Code describes him. For the application of this exception to the principle of legality to be reasonably justified, the results indicated in the rule must be obtained (increasing the effectiveness of the investigation of the facts, preventing the continuation of the crime or the perpetration of others, obtaining useful information to prove the participation of other defendants), but respecting a value judgment, namely, that the obtaining of those results regarding the punishable acts whose prosecution it facilitates (or whose continuation it avoids) is more valuable than the reproach that can be made to the collaborator for his conduct. In other words, that it is more convenient to partially or totally waive the criminal prosecution against the collaborating defendant if, through his collaboration, those benefits are achieved. The figure itself has been heavily criticized because it breaks fundamental principles of a State governed by the rule of law (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), going so far as to say that:

«... *recognizing in the Public Prosecutor's Office a discretionary power (opportunity without further qualification or regulated opportunity) so that it may: 1) Either not exercise criminal action, even though it is aware of the existence of an act with the appearance of a crime, whereby the process does not even begin, 2) Either request that a penalty distinct from or lower than that legally established be imposed on the accused, even though it is aware that the penalty established in the Criminal Code is another or greater, and 3) Either conclude the process without a conviction being handed down in it, and always despite the existence of an act, at least apparently constituting a crime, all of this must necessarily entail the perversion of the entire substantive criminal system.* » «*The most serious aspect of the case is that all the effort of the criminal legislator, the political decisions adopted when typifying a conduct and when establishing a penalty, can be rendered meaningless by virtue of a non-criminal norm that authorizes the Public Prosecutor's Office to dispose of the application of that criminal law in specific cases. If the norm establishing the principle of opportunity were to be classified as procedural, one would arrive at the contradiction that the entire Criminal Code would be subject in its application to a criminal procedural norm, to a single norm, with which it could be said that all the substantive criminal norms are emptied of content.*» (MONTERO AROCA, Juan: *Principios del proceso penal*, Valencia, Tirant lo blanch, 1997, pages 78 to 79).

«*The introduction of this figure into Argentine criminal law was not, and is not, exempt from controversy. Important voices have been raised against it that openly reject the possibility of the State entering into negotiations with someone who perpetrates an unlawful act, both for moral and constitutional reasons, and because of the delegitimization of the purposes of the State penalty that the agreement causes.*» (SCHIAVO, Nicolás: *La figura del ‘arrepentido’ en la Ley 23.737*, in <http://new.pensamientopenal.com.ar/16102007/doctrina03.pdf)>.

In the case of the collaborating defendant, it is more about opportunism than opportunity (understood as convenience), in the second meaning of this word, "... *which consists of making the most of circumstances to obtain the greatest possible benefit, without regard to principles or convictions*" (REAL ACADEMIA ESPAÑOLA: *Diccionario de la Lengua Española*, Madrid, 21st edition, 1992, page 1049), as it is in this matter to make exceptions to the mandatory nature of exercising criminal action.

«... *The crown witness, called 'pentito' or repentant in Italian procedural legislation, is a shameful, dangerous, and immoral instrument that the state resorts to in its fight against crime. The holder of the right of prosecution, which in our system is the Public Prosecutor's Office, does not notice that fighting against unlawfulness using morally questionable resources comes to be, in a certain way, legitimizing the conduct of someone who places himself outside the law. Evidently, it is an effective and powerful resource* [...] *However, this does not detract from the immoral character of the resource employed. The so-called criterion of opportunity is not such; it is an opportunistic criterion and not one of opportunity. The parties have no way of knowing whether the legal rights being negotiated are of greater or lesser rank than those being violated. The Public Prosecutor's Office handles this dangerous instrument at its will and accounts for it only at the trial itself. Is this not defenselessness? Some years ago, taking advantage of the presence of Eugenio Raúl Zaffaroni in Costa Rica, I spoke with him in the company of the distinguished colleague Lic. Ricardo Hilje. Seizing the moment, I asked the illustrious Argentine academic and magistrate his opinion about this resource that was just emerging as a possibility on the Costa Rican procedural horizon. Zaffaroni answered me what I had always thought: that a state governed by the rule of law cannot fight crime using the same resources that it does, that is, those that violate basic principles such as loyalty. The informer is hateful everywhere, although the result of his informing may be axiologically acceptable...* » (CASTELLON V., Gonzalo: *El testigo de la corona*, in the newspaper La Prensa Libre, Thursday, April 29, 2010).

It is also an exception to the regime of prohibitions referring to the defendant's statement, specifically in Article 96 of the Criminal Procedure Code, since there is no doubt that negotiating the application of this criterion of opportunity can be a way of inducing or determining the defendant so that he "voluntarily" declares what the Public Prosecutor's Office is interested in hearing. The third paragraph of Article 96 of the Criminal Procedure Code ("*The promise of an advantage shall only be admitted when it is specifically provided for in the law*") allows what the rest of the norm prohibits. An advantage not provided for in the law would be prohibited, because it is clearly irregular to offer advantages to a defendant in exchange for his confession or an informing, since obtaining the benefit would be a factor that could condition or determine him to say "freely" what the Public Prosecutor's Office wants to hear him say in exchange for the advantage that it offers him from an evident position of superiority. It is the law, but it entails a normative dissonance. Although an offer authorized by Article 22, subsection b) of the Criminal Procedure Code is made to the defendant, the trial court cannot overlook that the defendant has been truly tempted or manipulated by the advantage offered by the prosecuting party, that if he testifies he does not do so with a will as free and spontaneous as it seems, but conditioned by obtaining an advantage for himself, facing the rigor of the penal system, such that the mere authorization of the law to agree to a criterion of opportunity does not exempt the court from the duty to be particularly careful when establishing the probative value of the statement given by the "collaborating witness" (collaborating defendant, imputado colaborador) (as Judge Camacho Morales warned in his dissenting vote for the resolution of 13:30 hours on September 2, 2012, cfr. Volume XXVIII, folios 13713 back to 13714 back). But if our legislator adopted the institution, it can be supposed that his purpose was to strengthen the *efficiency* of the system (cfr. GONZÁLEZ ÁLVAREZ, Daniel: *El principio de oportunidad en el ejercicio de la acción penal*, in *Ciencias Penales*, Revista de la Asociación de Ciencias Penales de Costa Rica, San José, Year 5, No. 7, July 1993, pages 63 to 69), not to favor impunity:

«*In all these cases, it is a requirement that the act for which prosecution is waived be considerably less serious than those that the defendant helps to investigate or to cease their continuation; otherwise, it would encourage impunity for serious crimes, which would render the application of the principle of opportunity meaningless.*» (TIJERINO PACHECO, José María: *Principio de Oportunidad*, in A.A.V.V.: *Reflexiones sobre el nuevo proceso penal*, San José, Imprenta y Litografía Mundo Gráfico S.A., 1996, page 98).

The head of the Public Prosecutor's Office who authorizes the request is the competent one to assess the "opportunity," convenience, and necessity of applying this criterion (art.

22 CPP). Regarding judicial review of the application of opportunity criteria, the Constitutional Chamber (Sala Constitucional) has ruled that:

"...*the function of bringing charges in publicly prosecutable crimes is a function assigned by Law to the Public Prosecutor's Office (Ministerio Público). Consequently, it is up to the Prosecutor to decide on the advisability of applying or not applying an opportunity criterion* [...] *The judge's authorization excludes carrying out an analysis of the advisability or opportunity of the measure, given that they cannot substitute the decision of the prosecutor, who is responsible for the exercise of the criminal action*..." (Constitutional Chamber, No. 2001-02662 at 15:30 hours on April 4, 2001).

But it is clear that the trial court is the one competent to analyze and assess the evidence produced through this particular opportunity criterion. The Third Chamber (Sala Tercera) has indicated that because the criminal action against the collaborating defendant (imputado colaborador) "...*is suspended, subject to the results of the trial, the statement given by the 'crown' witness in the hearing against the other accused must be made in their capacity as a defendant and with respect for the guarantees that this entails*" (Third Chamber, No. 476 at 10:02 hours on March 16, 2012).

The Constitutional Chamber has also established some criteria to follow regarding the collaborating defendant, and it has done so precisely in relation to this specific case, in ruling No. 2009-12090 at 14:40 hours on July 31, 2009, which concerns an action of unconstitutionality brought by Mr. [Name012] against articles 24, 297 subsection d), and 299 second paragraph of the Criminal Procedure Code (Código Procesal Penal):

"...*the fact that no right of appeal is provided for the resolution approving the application of an opportunity criterion by those who appear as defendants in the same case does not injure due process or the right to defense, <u>given that the testimony given by the person to whom an opportunity criterion has been applied will be assessed by the court, which must substantiate the credibility it grants or denies, in relation to the rest of the evidence, and furthermore, it may be widely questioned by the parties in the debate</u>. Likewise, the defendant has the right to challenge the judgment if they believe that defects have occurred in the reasoning of the decision or in the incorporation or assessment of the evidence*..." "...*the possibility of waiving the exercise of the criminal action is foreseen* [...] *provided that their conduct is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents. <u>This evaluation of reprehensibility refers to culpability, such that the collaborator must deserve a judgment of reproach or lesser culpability than the principal perpetrator for whom they provide the collaboration</u>*..." "...*It is important to mention, as a reference, that the European Court of Human Rights, in a judgment of September 6, 1978, admitted the legitimacy of the crown or repentant witness. Subsequently, the same jurisdictional body determined, according to decisions of September 27, 1990, and November 20, 1989, that <u>its admissibility should only be as a source of circumstantial evidence, meaning that the data or information it provides requires the backing of other means of evidence. It becomes a means of investigation subject to confirmation, direct or indirect, of the data or circumstances it has provided regarding the investigated facts</u>. These requirements do not detract from the collaborator's legitimacy, according to the jurisprudence of the European Court of Human Rights*" "... *from a reading of the challenged article 22 subsection b), it is clearly inferred that the opportunity criterion for collaboration <u>applies to those participants whose actions are considered less reprehensible</u>* [...] *it is also required that the defendant collaborates efficiently with the investigation, provides essential information to prevent the continuation of the crime or the perpetration of others, helps to clarify the investigated fact or other related ones, or provides useful information to prove the participation of other defendants; all this collaboration requires, as the norm provides, that the collaborator's conduct is less reprehensible than the punishable acts whose prosecution it facilitates or whose continuation it prevents. <u>Reprehensibility has to do with the degree of culpability with which one acted</u>, which cannot be determined a priori, but must necessarily be evaluated in each specific case...*" It is important to note that in this ruling of the Constitutional Chamber, Magistrates Calzada and Jinesta dissented, warning that:

"*In our opinion, 'opportunity criteria' produce the anti-juridical effect of the total or partial waiver of the ius puniendi with respect to some infractions or certain persons who have participated in a presumably criminal act. The unwaivable nature of a primary public power is irreconcilable with any criterion of opportunity or discretion —relative and subjective after all— in its exercise. Moreover, the fundamental charter presupposes a fundamental ethical and moral order, so much so that article 28 of the Constitution prescribes that the principle of autonomy of will has morality as one of its limits. In our opinion, 'opportunity criteria' may be, eventually, reprehensible from a universal moral standpoint and from a minimum ethical-constitutional substratum, inasmuch as they enable the criminal prosecution body to waive public criminal action against certain persons or for certain acts. In another order of ideas, the principle of legality in criminal matters supposes that the People, in whom the original power to legislate resides, delegate it to the Assembly through suffrage (article 105 of the Constitution), so that it may classify certain conducts as anti-juridical and culpable, and the criminal prosecution body, which lacks all democratic legitimacy, is not in a position to dispose, discretionally or conveniently, which conducts and which persons it prosecutes, despite the legislator, by delegation of the people, having previously deemed that they must be prosecuted. In sum, a body that lacks mediate or immediate democratic legitimacy is not in a position to weigh what the public or general interest deems should or should not be prosecuted. It must be taken into consideration that the basic or fundamental directives and policies for investigation, prosecution, and exercise of the criminal action are established, primarily and above all, by the repressive legislation enacted by the Legislative Assembly by virtue of the power delegated to it by the people. In this way, another fundamental principle of the constitutionality parameter embodied in article 129 of the Constitution is contradicted, which prescribes that 'The laws are obligatory' and that 'A law is not abrogated or repealed except by a later one', given that, despite the rule and binding nature of the law and the impossibility of repealing a law for a specific case, with opportunity criteria the law can be disapplied for one or several acts and for specific persons. The preceding argumentation proves that opportunity criteria are incompatible with a correct and due understanding of a Constitutional State of Law, despite the multiple doctrinal, sociological, or criminological arguments that may support their establishment (e.g., that the penal system lacks the capacity to repress all conducts, the economy of resources in prosecution, that there are insignificant conducts —petty crimes— that should not be prosecuted, or that criminal prosecution has traditionally focused on conventional crime, bypassing non-conventional crimes, etc.). All those doctrinal or meta-legal arguments that support opportunity criteria cannot be placed before —due to lacking constitutional support— the constitutional precepts, values, and principles stated. The partial or relative derogation of the principle of legality —inherent to the Constitutional State of Law— through opportunity criteria is of such magnitude that it inevitably requires a constitutional reform that admits it, an extreme not contemplated by our Constitution. Thus, by way of illustration, following a systematic hermeneutics and keeping proportions, article 180, paragraph 3, of the 1949 Constitution admits, in national Public Law, the derogation or displacement of the substantive and budgetary principle of legality by that of necessity, under qualified circumstances 'to satisfy urgent or unforeseen needs in cases of war, internal commotion, or public calamity'. Finally, it is necessary to point out that the legislative body, in the exercise of its legitimate sovereign power, for the achievement of the aims sought by opportunity criteria, has other political alternatives or options, such as decriminalization or descriminalization, the increase of administrative infractions by rigorously demarcating the terrain of Criminal Law and Administrative Sanctioning Law, the introduction of suitable and expedited tools to combat non-conventional crime, etc.*" **b.- Considerations on the analysis and assessment of the statement given by [Name026].** If [Name026] was granted the opportunity criterion for utilitarian purposes, then it is appropriate to judge that decision of the Public Prosecutor's Office by its results or consequences. From this perspective, it is fitting to ask the following questions about the defendant [Name026]:

Did he efficiently collaborate with the investigation of the act attributed to him?; Did he efficiently collaborate in clarifying other crimes related to the one in whose cause the opportunity criterion is being applied to him?; Did he provide essential information to prevent the crime from continuing or others from being perpetrated?

Did he help to clarify other related acts?

Did he provide useful information to prove the participation of other defendants in the investigated acts?

Was the conduct of [Name026] less reprehensible than the acts whose prosecution he supposedly facilitated or whose continuation he prevents?

This Chamber considers that the answer to all these questions is "No," since it is obvious that [Name026] did not even give a reliable statement and that the majority of the court did not critically analyze or assess it, as was required for such a particular and supposedly essential testimony. Let us remember that [Name026] is the only eyewitness to the alleged participation that he attributes to [Name012], which implied the need to have been cautious when analyzing and assessing his statement, as advised by scholars of this discipline who have reflected on this institution since the Enlightenment:

"*Some courts offer impunity to the accomplice of a serious crime who reveals the others. This recourse has its drawbacks* [...] *The drawbacks are that the Nation authorizes betrayal, detestable even among the wicked; because the crimes of courage are always less fatal to a society than those of vileness, since the former is not frequent, and with only a beneficial force to direct it, it will conspire for the public good; but the latter is more common and contagious, and always concentrates within itself. Furthermore, the court reveals its own uncertainty and the weakness of the law, which implores the help of the one who offends it*..." (BECCARIA, Cesare: *Of Crimes and Punishments*, Madrid, Alianza Editorial, 1997, pages 108 to 109).

Also, in classical literature, well-founded objections are found regarding the testimony about another's act given by a defendant who confesses everything or in part in exchange for an advantage, for example:

"*We repeat that whenever the generic accusation of the accomplice is presented as a discharge of the accused who accuses, suspicion about the truthfulness of the latter is legitimate. From this, it follows that this suspicion becomes excessive when impunity has been promised on the condition that the name of the accomplice be revealed, because the impulse to lie is so great that logic refuses to take into account such a revelation of participants, which has the impunity of the one who makes it as its price. But fortunately, that hypothesis of impunity as the price of the revelation has lost much importance, since it has been proven to cause serious harm. The promise of impunity, instead of constituting a restraint against crime, due to the distrust it creates among accomplices, is an incitement to crime, due to the security it gives each one of always having an open path to escape criminal justice.*" The promise of impunity, which is an immoral pact between the law and the offender, besides being a legal error, is an evidentiary error, because, on the one hand, it incites crime and corrupts and disturbs society with the spectacle of the release of an unpunished offender, who is almost always not only the most guilty, but also the most perverse; and on the other hand, it subverts all evidentiary criteria and produces in the consciousness of the accused, and by operation of law, a very powerful impulse toward false revelations</i>» (FRAMARINO DEI MALATESTA, Nicola: <i>Lógica de las pruebas en materia criminal</i>, Volume II, Editorial Temis, S.A., 2002, page 260).

At present, it is worth bringing up the observations of Ferrajoli and of Rivera Beiras regarding the figure of the collaborating witness. The former has warned that in the garantista model, the idea that the end of truth justifies any means is inverted, so that it is solely the nature of the means that guarantees the attainment of the end; from this derives the prohibition of any promise or direct or indirect pressure on the accused to induce them to repentance or to collaboration with the prosecution; and he warns us that:

«<i>All criminal and procedural guarantees</i> [...] <i>are effectively altered by the negotiation between the parties or, worse still, between judge and accused that has as its object the evidence and the penalty: the retributive nexus between penalty and crime, since the penalty and its measure are made to depend on the procedural conduct of the defendant rather than on the gravity of the crime; the principle of strict legality, due to <u>the totally indeterminate and debatable nature of the degree of reliability and relevance of the collaboration provided</u> and, therefore, of the premises for the reduction in penalty; the principle of materiality, given the eminently subjective character of the collaborative attitude or, even worse, of the ‘repentance’ or ‘dissociation’ required of the accused, upon whom, moreover, the accusatory burden of proof is shifted; the principle of contradiction, because of the confusion of roles between the parties and because of the character of monologue that is impressed upon all procedural activity; the guarantees of defense and publicity, because the collaboration of the accused with the prosecution requires a tête-à-tête between investigator and investigated that does not tolerate the presence of third-party outsiders and that, on the contrary, due to the unequal nature of the relationship between the contracting parties, degrades into murky exchanges of trust of the ‘servant and master’ type; the principle, finally, of penal equality, given that only the guilty can collaborate, deal, and profit, and all the more so if they are seriously guilty, while the innocent or those with marginal responsibilities could not do the same and, by knowing nothing of the crime and by providing no accusatory contribution, end up doubly penalized. Legality, jurisdiction, the non-derogability of the action and the trial, and the non-disposability of penal situations ultimately vanish in this unequal negotiation, leaving space for an entirely discretionary power that inevitably leads to arbitrariness</i>» (the underlining is not in the original, FERRAJOLI, Luigi: <i>Derecho y razón Teoría del Garantismo Penal</i>, Editorial Trotta, Madrid, 1995, pages 608 to 609).

For his part, Rivera Beiras warns with utmost clarity and precision of the risk that the figure of the collaborating witness entails for the ascertainment of truth:

«...<i>perhaps this is one of the points that, most forcefully, shows the presence of the </i>political<i> over the </i>legal<i>. So much so is this the case, that clear examples can be found of European legislations that have been—although with diverse legislative techniques—"legalizing" the special, benevolent, and reward-based treatment of the figure of informants/repentant individuals/collaborators with justice, etc.</i>» «<i>And, in truth, I believe it can be stated, without fear of being mistaken or exaggerating, that it has been the </i>regulations<i> on "</i>repentant individuals<i>" that have most forcefully ended up profoundly changing the character of criminal legislation and its guiding principles. Indeed, it was this legislative trend that upended the foundations of a criminal law </i>of the act<i>,</i> of the deed<i>, in favor of those of a criminal law </i>of the author<i>. Why is such a judgment made? Let us look at certain points, essential for piecing together the process I am trying to describe.</i>» «<i>In the first place, it must be pointed out that the </i>repentance<i> of the subject to be rewarded is not, by any means, the </i>spontaneous<i> repentance that has always existed in ordinary criminal legislation. Quite the contrary, it is a </i>calculated<i> repentance. And such calculation is verified on the basis of measuring the benefits—procedural, penological, or penitentiary—that the </i>repentant individual<i> thinks they can obtain.</i>» «<i>Put in much plainer terms: it is a matter of achieving the </i>change of sides<i> of the offender in exchange for a </i>judicial remuneration<i> or one negotiated judicially.</i>» «<i>Likewise, and increasingly, the twisting of the law becomes more evident; it is then a matter of </i>instrumentalizing<i> the accused in order to later be able to use their confession—as privileged evidence—against their former, denounced companions.</i>» «<i>It must also be said, in close relation to the above, that the </i>repentant individual<i> usually—according to the degree of </i>repentance/informing/betrayal<i> they reach—ceases to be an accused and moves into the category of </i>witness<i>. Of course, this is not an </i>impartial<i> witness but a deeply </i>interested<i> one.</i>» «<i>From this point on, it is evident that it will no longer be possible to know when they are telling the truth and when they are beginning to exaggerate, <u>lie, or simply invent in order to achieve the benefits</u>. And this is because their benefits become inversely proportional to the harms of the denounced persons; the rule is simple: the more harm they manage to cause to their former companions, the more personal benefit they will achieve</i>.» «<i>Thus, one reaches one of the most outstanding consequences of this entire system: </i><u>the one who will end up serving less of a sentence is not the one who commits fewer crimes, but the one who informs more</u><i>.</i>» «<i>It seems to me that not much argument is needed, after the notes commented upon, to conclude by affirming that a penal system—both substantive and procedural—inspired by the principles that have been described, constitutes a true weapon of political struggle that has ended up subverting the principles of a criminal law born in the liberal-Enlightenment tradition.</i>» «<i>A concrete and current example of everything being mentioned is constituted by a norm of the Spanish Penal Code, when it provides that: "[…] the Judges and Courts, stating the reasons in the judgment, may impose a penalty one or two degrees lower than that indicated by law for the crime in question, when the subject has voluntarily abandoned their criminal activities and presents themselves to the authorities confessing the acts in which they have participated, and furthermore, actively collaborates with them to prevent the commission of the crime or effectively contributes to obtaining decisive evidence for the identification or capture of other responsible parties or to prevent the action or development of armed bands, organizations, or terrorist groups to which they may have belonged or with which they may have collaborated</i>» (the underlining is supplied, RIVERA BEIRAS, Iñaki: <i>Recorridos y posibles formas de la penalidad</i>, Anthropos Editorial, 2005, pages 117 to 119).

Among the criticisms that our academy makes of the “collaborating accused,” is precisely that of the low reliability of its results:

«<i>The main criticisms address the scant credibility that the Crown witness may have</i>...» «<i>The practice of the Code of 1996 has been unclear; in the first place, the institution fell into disrepute when, in a well-known case, the Crown witness changed their statement several times</i>.» (LLOBET RODRÍGUEZ, Javier: <i>Proceso Penal Comentado</i>, 4th ed., San José, Editorial Jurídica Continental, 2009, pages 122 and 123).

«...<i><u>it has been said that the evidence obtained by this means deserves very little credit, since the case can easily arise of a subject who wants to involve others to safeguard their own situation, seeking to be freed from their criminal responsibility</u>. In the end, the legal benefit that the collaborator can obtain depends on the efficacy of their contributions, so that these can be seriously conditioned by their own interests, not only procedural, but also economic and even related to publicity. But not only that, it is also feasible that the presumed collaborator seeks rather to confuse the authorities in charge of the investigation, providing false data. Consider, for example, the manipulation that several accused could carry out, simply by agreeing to offer a distorted collaboration, falsifying, for example, their information</i>» «<i>For some, when an accused denounces others, affirming that they committed the act together with them or that they intend to incur further crimes, <u>the authorities are obligated to act with the utmost prudence and caution, without discarding that information, but granting it only the value that corresponds to a notitia criminis</u>. If an accused decides to reveal secrets that another would guard jealously, how many reasons can motivate that conduct? For this reason, it has been said, with good reason, that the system should establish all the necessary guarantees to ensure the veracity of the data, confirming the information by other means.</i>» «<i><u>However, in many cases the revelations of the collaborator are easily accepted as authentic indications of criminal responsibility, without the personality of the informant mattering, nor the scant credibility they may deserve, nor the prior contradictory statements they may have given</u>. <u>Although on occasions the collaborating accused does not say everything they know or does not assume all the responsibility that corresponds to them, it can happen that, by an accommodating attitude, their revelations deserve much more credit than any exculpatory version offered by those who end up denounced</u>. In certain cases, this can lead to a lack of depth in police inquiries and, in close relation to that, to a stagnation of investigative techniques.</i>» «<i>In these circumstances, procedural guarantees, the presumption of innocence, and the classic parameters of judicial investigation can be destroyed by the simple word of the collaborating accused</i>» «...<i>It must be taken into account, furthermore, that the prosecution negotiates with subjects who could eventually continue to be part of the criminal organization or be connected to it, so <u>it is feasible that they provide false information, whether with the aim of diverting the investigation, delaying it, or leading it to failure, and may even give rise to an unjust conviction, handed down against an innocent person</u></i>» (the underlining is not in the original, ZUÑIGA MORALES, Ulises: <i>El Testigo de la Corona</i>, in AAVV, Derecho Procesal Penal Costarricense, San José, Asociación de Ciencias Penales de Costa Rica, 2007, pages 594 to 595 and 601).

In the same vein, regarding the “procedural frauds” that the collaborating accused can foster and the problem of their evidentiary value, it is warned that:

«<i>To the list of reproaches is added the risk that the Administration of Justice may be used by ‘false repentant individuals,’ who, with the aim of misleading the inquiries, may compromise the dignity and security of persons who have no connection whatsoever with the crimes</i>» «<i>It seems to be beyond any doubt that a criminal judgment can validly be based on the version provided by a single witness, when the examination of their testimony in the specific case withstands the analysis of the rules of correct human understanding. If this is so, and the statement of a co-accused against another has been admitted as a valid element of proof, it is worth questioning what the concrete reproach is that is made to the figure regarding its evidentiary value. <u>The basic objection consists in emphasizing that it is a statement highly interested in harming the other defendants, and thereby obtaining an advantage in the proceedings brought against them</u></i>» (the underlining is not in the original, RODRIGUEZ CAMPOS, Alexander: <i>El arrepentido y la investigación penal encubierta Aspectos problemáticos de la persecución del crimen organizado</i>, 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 is worth mentioning that Judge Camacho Morales, in his dissenting vote, also explained that in the processing and granting of the opportunity criterion to [Nombre026] there were violations of due process; he even warned of this previously, with abundant reasons, from the time the resolution of 1:30 p.m. on September 2, 2010 was issued interlocutorily (cf. “<i>Se rechazan las protestas por la actividad procesal defectuosa formuladas ante la comparecencia de [Nombre026] al debate sobre la base del criterio de oportunidad</i>”, Volume XXVIII, folios 13676 to 13736), a resolution in which he also drafted a dissenting vote (emphasizing the need to guarantee jurisdictional control over the application of that institution to the co-accused who did not benefit from that opportunity criterion) to which he refers and cites literally in the present (cf. pages 1944 to 1988), adding to what he had said on that occasion that it is clear that information necessary to resolve the request for application of the opportunity criterion was hidden from the criminal judge. Judge Camacho Morales informs us that:

«<i>The Public Prosecutor's Office made a request to the Criminal Judge, hiding information that was decisive for establishing the lesser culpability and the necessary analysis of proportionality in the application of the opportunity criterion. Not mentioned in the request for the opportunity criterion were other conducts that could be criminal and that were confessed by [Nombre026] and that arise from expert report 297-DEF, documentary evidence No. 598, such as “royalties” of $110,207.00 and $29,833.95 received from Cibertec S. A. and Empaques Asépticos S. A. (folio 38). In addition, money that [Nombre026] confessed having received from the hands of [Nombre041] via check No. [Valor035] from account No. [Valor036] of the Banco de San José, belonging to [Nombre041], related to the La Joya electricity generation project, supposedly receiving a total of $56,000.00. This last fact is recorded in the complaint filed by the Technical Defense of [Nombre012] as evidence when introducing defective procedural activity against the opportunity criterion, on an interlocutory basis, a complaint that gave rise to case No. 08-000032-615-PE. In said documentation, there is a request for dismissal of the case where the prosecution lists all the facts denounced against [Nombre026] by the co-accused [Nombre012], admitting that they have been under investigation, but requests the dismissal of the complaint, under the argument that the exercise of criminal action against [Nombre026] was suspended due to the application of an opportunity criterion and therefore the Attorney General has not incurred the crime of dereliction of duty. Based on said request, the complaint was dismissed. However, if the opportunity criterion file is analyzed, it will be easily determined that in the respective requests addressed to the Criminal Judge and in the unfounded resolution that grants the opportunity criterion, none of the facts mentioned supra form part of said opportunity criterion, so that the suspension of the criminal action that occurs as an effect of the application of numeral 22 subsection b) of the Code of Criminal Procedure could not reach said facts, which were not presented to the Criminal Judge so that they could assess, in a comprehensive manner, the situation of [Nombre026], and determine whether the application of the opportunity criterion being requested was proportional, and above all, the lesser culpability of [Nombre026] in view of all the crimes for which the Public Prosecutor's Office had in mind to grant impunity to said co-accused, but which it omitted bringing to the knowledge of the Criminal Judge in the respective request, resulting in the Criminal Judge applying the opportunity criterion only and exclusively in relation to the facts that the request comprised, as they expressly indicated in the resolution, by stating in the “Por Tanto” that </i>“(…) the exercise of the public criminal action is suspended <b>in relation to the facts described in the first considerando of this resolution</b>”<i> (resolution from folios 41 to 89 of the opportunity criterion file. The highlighting was supplied), so that the other facts to which reference has been made, because they were not described in the request for application of the opportunity criterion and therefore also do not form part of the first considerando of the resolution, are and always have been outside the opportunity criterion and regarding them impunity has been granted to [Nombre026], allowing the criminal action to be extinguished by the statute of limitations, a situation that is evidently illegal and that the Public Prosecutor's Office has refused to correct, despite it having been pointed out by the co-accused [Nombre012] in the mentioned complaint and by their Technical Defense in the trial, at the time of introducing defective procedural activity against the opportunity criterion.

With the actions of the Public Prosecutor's Office, impunity has been granted to [Nombre026] through a de facto, rather than de jure, opportunity criterion (criterio de oportunidad), evading the necessary judicial control that must mediate in this regard.</i>» (Judgment, pages 1989 a 1990).

Judge Camacho Morales also informs us that in the negotiation of the opportunity criterion, the possession by [Nombre026] of sums of millions of dollars of allegedly illicit origin was legitimized, for having been supposedly received as gifts (dádivas), disapplying and disregarding the legal provisions that establish that the fate of the proceeds of crime is and must be subject to confiscation (comiso), thus operating a legitimization of capital that allowed [Nombre026] to keep in his possession a significant portion of money and assets acquired as the proceeds of the gifts, an economic benefit that Judge Camacho Morales estimates to be around two million four hundred thousand dollars ($ 2,400,000.oo) (cfr. judgment, pages 1990 a 1991). In this way, Judge Camacho Morales indicates, the statement of [Nombre026] was *determined*:

«*[Nombre026]'s fundamental rights were also violated, and particularly his condition as a person and the dignity inherent to it were ignored. By negotiating an opportunity criterion with him through illegal offers (economic benefit and absence of legal prerequisites for granting the opportunity criterion), he has been instrumentalized, degraded to the condition of an object, and used by the prosecuting body of the State to achieve its unacceptable purposes, in a democratic judging system, of obtaining a conviction by resorting to means proscribed by law, the Political Constitution, and International Human Rights Law. The statement made by [Nombre026] and the formation of the will to do so, was determined in an openly illicit manner (art. 96 of the Code of Criminal Procedure), for which he has been used by the Public Prosecutor's Office to achieve its ends, without considering that at the end of this process, if legality (minority criterion) prevails, [Nombre026] could always be subjected to trial, whereby a false expectation has been created for him and the principle of swift and complete justice has been violated against him*.» «*Thus, the statement of [Nombre026] is illicit evidence and cannot and must not be assessed to support any resolution (art. 181 of the Code of Criminal Procedure)...*» The facts that are claimed to have been accredited in relation to Mr. [Nombre012] are described in Considerando III of the judgment, facts No. 84 a No. 114 (cfr. Judgment, pages 995 a 1007). Facts No. 84 a No. 94 describe the alleged conversation that [Nombre026] and [Nombre012] had on the morning of December 4, 2000, at the latter's home, in which it is stated that [Nombre026] told [Nombre012] about the gift proposal made to him by [Nombre035] and [Nombre015] the day before at the "[...]" restaurant, in exchange for carrying out the necessary actions as director of ICE to promote the migration of TDMA technology to GSM technology, to prevent the bidding process for the four hundred thousand lines from being aborted, and to vote in favor of awarding said bid to the Alcatel company. There it is stated that [Nombre012] approved that [Nombre026] accept the proposal from the Alcatel officials and arranged the way in which the gift would be distributed between the two of them. These facts, according to the majority of the Court duly accredited, are those said to constitute the crime attributed to [Nombre012], but the *only* direct evidence of that fact is the testimony of [Nombre026] (there is no independent element that corroborates the truthfulness of his account). It is important to bring up what Judge Camacho Morales indicates to us in this respect:

«*The specific configuration of the referred facts is based exclusively on the account of [Nombre026], which, as already stated, is illicit evidence and if it were not, it would be insufficient by itself to demonstrate such facts, as resolved by constitutional and cassation jurisprudence. In judgment 12090 of 2009 at 2:40 p.m. on July 31, 2009, the Constitutional Chamber, referring to the legitimacy of the crown witness, cites resolutions of the European Court of Human Rights in which it indicates that the admissibility of the crown witness should be as a circumstantial source of evidence, so that the data or information they provide requires the support of other means of evidence. The Constitutional Chamber expressly indicated:* "It is important to mention as a reference, that the European Court of Human Rights, in a judgment of September 6, 1978, admitted the legitimacy of the crown witness or repentant. Subsequently, the same jurisdictional instance determined, according to decisions of September 27, 1990, and November 20, 1989, **that their admissibility must only be as a source of circumstantial evidence, that is, that the data or information they provide require the support of other means of evidence. It becomes a means of investigation subject to confirmation, direct or indirect, of the data and circumstances that they have provided about the facts under investigation**. These requirements do not detract from the legitimacy of the collaborator, according to the jurisprudence of the European Court of Human Rights." *(The highlighting was supplied). Exactly the above is the position taken by the Third Chamber of the Supreme Court of Justice in judgment 136-2003, when referring to the statement of an accused who testified as a crown witness, denying it value by itself to accredit the narrated facts, expressly indicating the need to have evidence that corroborates their version. In this regard, the Third Chamber said:* "The only element considered by the judge is the statement of the co-accused [Nombre048], who gave the names of two more people as participants in the thefts, and describes the contribution of each one and the places where they negotiated the stolen objects**. However, this version was not corroborated with other elements, except regarding the participation of the "repentant", since objects suitable for the commission of this type of crime, as well as stolen goods, were seized from him in the car. The only thing linking [Nombre049] to the accused acts is the statement of the co-accused, which is insufficient**. [Nombre050] depends on the outcome of this case, for a dismissal to be issued in his."*» «*Given that, as already indicated, the statement of [Nombre026] is illicit evidence, but it is also the only evidence with which the Public Prosecutor's Office intends to accredit the criminal acts attributed to [Nombre012], and even if it were lawful evidence, it would not be sufficient to prove them, given the status of crown witness and the benefit he hopes to achieve with his statement, requiring additional evidence to prove such facts, which is not available, for all of which, the facts subject to comment were not demonstrated with any valid evidence*.» (Judgment, pages 1993 a 1995).

Judge Camacho Morales adds that for these same reasons, the sole testimony of [Nombre026] also proves insufficient to demonstrate the conduct attributed to the co-accused [Nombre018], [Nombre004], [Nombre001], [Nombre027], [Nombre021], [Nombre015], and [Nombre009] (cfr. Judgment, pages 1996 a 1997). For this Chamber, it is reprehensible that the MP chose to apply the opportunity criterion to [Nombre026], as it appears not to have achieved an accurate prognosis of the reprehensibility that could reasonably have been anticipated regarding each of the supposed agents before reaching trial. It has been said that this lack of discrimination can lead to situations as unacceptable as, for example, the perpetrator of a Homicide being favored with impunity in exchange for informing on accomplices through their confession (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 noted that:

«*It is a requisite for the application of this criterion, that the criminal action being dispensed with is considerably less serious than the punishable acts whose prosecution it facilitates*. This is so because, as indicated previously, impunity is not sought with the application of the institute, but rather greater efficiency of the system. *If negotiation were allowed for a person with greater participation or who has committed a more serious crime than the one sought to be prosecuted, there would be no proportion between the punishment imposed and the event that was left unsanctioned.* If the acts are of the same gravity or participation, chance or arbitrariness would determine who would be tried and who would not. *It is for this reason that the application of the criterion was established solely for those cases in which the participation of the "repentant" is less than that of the person to be caught, in the case of the same act, or the less serious crime when it concerns a different one.* In the present matter, the opportunity criterion should not have been applied, since both accused had **identical** participation, in the **same** act. According to the statement of proven facts, there were three persons committing the thefts, dividing the functions in such a way that* [V.Z.] *and* [M.A.] *entered the houses and took the objects, while* [E.Q.] *drove the car in which they moved, waited for them outside the chosen homes, and then they left the location in that car. According to the evidence, they also traveled in the vehicle driven by* [E.Q.] *to sell the stolen objects and shared the profits among everyone. It is evident that the three accused are co-perpetrators in the illicit acts. The selection of one accused to be brought to trial, and another to apply an opportunity criterion, was capricious and gives rise to arbitrariness and insecurity. **The prerequisite that the participation of the "repentant" is considerably less serious than that of the one whom it is sought to prosecute was not fulfilled***» (the underlining is not from the original, Third Chamber, No. 2003-00136 of 9:20 on February 28, 2003).

The defendant [Nombre026] did not maintain a coherent version throughout the process, so much so that the investigative statement (indagatoria) made to Dr. [Nombre012] was done based on the first version that [Nombre026] maintained (according to which he incurred in the receipt of gifts without prior promise for a completed act, without any other action by [Nombre012] than the receipt of gifts related to the money received by [Nombre026] from Alcatel), while the accusation and the debate were based on a different version, about which the defendant was not investigated (according to which he received a corrupting proposal that he accepted and therefore favored Alcatel in exchange for a subsequent gift, with prior participation of [Nombre012]). It is thus that Mr. [Nombre012] was not even formally charged or investigated about the alleged meeting at his home, in which he supposedly determined [Nombre026] to commit a crime, so that—as Attorney Gairaud criticizes—he was never formally charged for the conduct said to constitute the crime of *instigation*. The judgment states that [Nombre012] instigated [Nombre026] and that was not a known fact in the case file at the moment when [Nombre012] declared, but rather eight months later, when [Nombre026] gives his second version of the facts. [Nombre026] himself acknowledges that he changed his initial version in his trial statement, and tries to justify it:

«*That night in the Public Prosecutor's Office I assumed my responsibility and said that the offer had been after the award, it was like self-justifying, I was so confused and disoriented, but it was obvious that this statement would not stand on its own; that was because the Prosecutor's Office said that this could not be so, to justify it, and that was when I clarified things, I said that the offer was not after the award but before*» (Judgment, page 520).

«*Yes, I said in that statement that I received the money or reward from Alcatel after the award at the board of directors' meeting, I think I gave that version on September 30, 2004, I don't remember if I consulted it with my lawyer. What I have is a legal veneer, but I already explained here that the truth is another, I had already indicated that here, what I said here is the truth. I didn't lie, but simply at that moment I tried to cover myself or self-protect, but then I became more precise. Alcatel offered me 1.5% or 2%* [...] *In that statement of September 30, I admitted my responsibility and gave a detailed description of them, in an eagerness to self-justify I indicated that the offer would materialize later, but then I went on clarifying the point...*» (Judgment, pages 543 a 544).

Then he changes his version to confess to alleged aggravated Corruption by Improper Bribery (Cohecho impropio), a statement that precisely would allow him to obtain an abbreviated proceeding (procedimiento abreviado) in May 2005. It is obvious that what he actually did was not "clarify the point" but substantially modify his version, for the benefit signified by an abbreviated proceeding that in the end was not even realized because, through the opportunity criterion, he was granted impunity in exchange for declaring his *new* version of the facts. As the two indicated versions cannot be true at the same time, at least one of them must have been false, so that we can affirm with certainty that he lied at some point to benefit himself, that in this way he obstructed the investigation of the truth, and therefore the trial court should have been more suspicious when analyzing and evaluating his testimony. However, the majority overlooked this reality and trustingly considered that [Nombre026] declared disinterestedly to collaborate with the Administration of Justice. The majority vote, on the one hand, avoids the problem concerning the investigative statement of Mr. [Nombre012] by saying that the defendant had to request to expand his first statement, to refer to these "other" facts, as if it were a burden of the accused to ensure being properly investigated. To pretend that the defendant has the obligation to ascertain what the act of which he is accused is and to know the evidence held against him is Kafkaesque. The formal charging (intimación) is part of due process (S-IV, No. 1739-92), the variation of the facts for which he is being investigated compromises the defendant's right of defense; it corresponds to the Public Prosecutor's Office to investigate the accused again by formally charging him with the new facts attributed to him. On the other hand, the majority sidesteps the lack of coherence of the defendant [Nombre026], evades the difficulty that derives from that evident inconsistency of his, and rather gives it the character of full evidence, assigns it full credibility, a matter of great incidence for what the majority resolved, considering that regarding most of the proven facts there is no other element of evidence that corroborates the sole account of [Nombre026]. There are reasons to reasonably suspect that [Nombre026] was varying his version throughout the process to obtain different procedural benefits (house arrest instead of pretrial detention, the possibility of agreeing to an abbreviated proceeding, finally obtaining an principle of opportunity). It is reasonable to suspect that he sought his impunity at all costs, including declaring against third parties (especially against [Nombre012]). His was an interested statement, therefore the court necessarily had to be more suspicious and rigorously examine whether there were other independent elements of evidence that confirmed or corroborated the account of [Nombre026] in matters of fact of criminal relevance.

[Nombre026] did not have to swear to tell the truth, he declared as a defendant assisted by a defense attorney, refraining from declaring or answering the questions put to him, and even his defense attorney—seated by his side—spoke into his ear before answering, as seen in the audiovisual record of the corresponding hearings of the debate. The majority itself records in its resolution that [Nombre026] refrained from responding to questions formulated by the lawyers for the accused [Nombre012], [Nombre015], and [Nombre021], but the judges say that this does not diminish the credibility of his account, either because they were questioning him about self-incriminating facts (cfr. Judgment, pages 1642 a 1643), a criterion that this Chamber does not accept as valid, because if the prosecuting party has totally dispensed with the criminal prosecution against him, it is assumed that it has been precisely so that he collaborates with the investigation of the real truth. On the other hand, even when [Nombre026] falls into contradictions (which he attributes to "confusions") that the defense points out to demonstrate that he is not reliable, the majority of the court chose to excuse him, as for example on page 1723:

«*[[Nombre026]] mentions that these were dates of emotional confusion for him and that is why he made the mistake of indicating that the delivery was in cash, when the truth is that it was as he stated in the debate, that is, resorting to investment certificates of money belonging to his mother for having suffered the blocking of funds from Alcatel deposited in the Saint Georges Bank. For this panel, the cited explanations are valid according to the rules of logic and common experience due to the various banking movements carried out by [Nombre026] to proceed with the respective deliveries of money to [Nombre012], added to the fact that it has been corroborated, according to his oral statement and documentary evidence, that the described amount was not delivered in cash but through 7 bearer certificates*...» (Judgment, pages 1723 a 1724).

Finally, regarding the substance of his statement, with respect to what [Nombre026] says happened, his statement is not reliable either, because he says he did not accept the offer until [Nombre012] gave his approval, this is so, he explains, because when the proposal was made to him he answered that he alone could not do what they were asking in exchange for the "*reward*" offered, that he could not "*direct the judgment of six fellow members of the board of directors*" because it was "*something very big* [...] *and that required a higher instance than my capabilities*". He says that he assumed he would have to count on [Nombre012]'s promise, that if Mr. [Nombre012] had said no, he "*aborted the situation*" (cfr.

judgment, page 502), it later turns out that neither he nor [Nombre012] had to do <i>anything</i> to direct other members of the board of directors, according to what [Nombre026] himself says:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>The award in favor of Alcatel was unanimous; if any member of the board of directors held a dissenting position, they did not make it public. No one raised an objection. My action to award the tender to Alcatel was to cast my vote; I had no more importance than the rest of the directors, and for that reason, if there was dissent, the interference of the President of the Republic was important, in the event that the rest of the directors had a different direction. I do not know if that eventuality occurred because that corresponds to the President</i>» (judgment, pages 539 a 540).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>I do not know if he</i> [[Nombre012]] <i>did something or did not do something</i>» (sic, judgment, folio 548).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>It is very suspicious that he says he required the approval of [Nombre012] to achieve a result that, in the end, occurred without requiring any "direction of course" from the latter. There is no evidentiary element indicating that [Nombre012] helped in any way for [Nombre026] to fulfill what the corruptors asked of him. All of this allows for reasonable doubt that the alleged participation [Nombre026] attributes to [Nombre012] was real, since it is plausible to suppose that it could well be a false accusation, arranged to simulate the existence of a defendant more reproachable than himself and thus be able to obtain the benefits derived from the criteria of opportunity as a collaborating defendant. One could even suppose that at the moment [Nombre026] attempts to introduce the alleged participation of [Nombre012], the latter's influence was already unnecessary. <b>c.- Conclusion.-</b> As we said before, the defendant [Nombre026] is the sole eyewitness to the alleged form of participation he attributes to [Nombre012] (having instigated or determined him to commit the crime of Aggravated Corruption in the modality of Improper Bribery) and his statement is the only direct evidence of that alleged fact which constitutes nothing less than the <i>core</i> of the accusation, a circumstance that underscores the need to have been cautious when analyzing and assessing the credibility of his declaration, which —being that of a collaborating witness— required confirmation or corroboration by independent evidentiary elements, not on secondary circumstances, but regarding the essential elements of his statement, a condition prescribed by constitutional jurisprudence itself that was not fulfilled in this matter. The sole circumstance that the alleged protagonists of the fact —[Nombre035], [Nombre015], [Nombre026], and [Nombre012]— were in Costa Rica on December 3, 2000 (according to the study of their migratory movements, expense settlements, and travel itineraries, conducted by the majority of the trial court in the judgment, cf. pages 1685 a 1690, a section titled "<i>Verification of [Nombre026]'s statements regarding the meeting in [...] and at the house of the accused [Nombre012]</i>"), which was the day on which [Nombre026] says he spoke alone with [Nombre012] at his house, is not proof that corroborates that [Nombre012] "approved" [Nombre026]'s acceptance of the proposal from Alcatel officials; it is an indication so ambiguous or equivocal that, by itself, it could simply be a coincidence. Nor could the alleged fact that circumstances made it urgent for [Nombre026] to do what his corruptors asked of him (cf. Judgment, pages 1691 a 1693) be considered an indication that [Nombre026] told the truth by 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 would also allow corroboration of [Nombre012]'s defense, who explains that its cause is a personal loan that [Nombre026] made to him and that he accepted because he considered the former's fortune to be legitimate. The absence of objective elements that corroborate [Nombre026]'s statement, regarding the approval and indications he says he received from [Nombre012], is patent. The majority of the trial court minimized the fact that the temptation to obtain impunity for one or more of his own acts could have determined the accused [Nombre026] to falsely incriminate other persons as participants; that his interest could have been sufficiently great to motivate him to deceive the Public Prosecutor's Office and the judges with lies, even slandering an innocent person, falsely pointing to them as a co-perpetrator or participant (accomplice or instigator), if in that way he could minimize or evade his personal responsibility. The suspicion of mendacity on the part of the collaborating defendant regarding the acts of another, the reason for his discredit, is a common theme in doctrine, and all the citations included in this section are to illustrate to the reader why the collaborating defendant is considered not to be a suitable witness (for lacking the will to tell the truth and rather having the will to deceive). The very nature of the crimes attributed to [Nombre026] is an objective factor that allows one to reasonably suspect him, for if it is precisely affirmed that he has deliberately breached the duties of the public function entrusted to him, reducing it to a means to act corruptly and enrich himself, one can suppose that he lacks the moral sense implied by sincere repentance, especially when other objective factors concur, such as the high prison sentences that could be imposed on him, the magnitude of the economic damage caused, which together could motivate him to be interested in denouncing or even slandering third parties if he thereby mitigates the rigors of the penal system or obtains a procedural advantage as appreciable as impunity; plus the possibility of conserving through this route a large part of the money and assets acquired through the gifts received. And if to the foregoing it is added that [Nombre026] has incurred contradictions, that he has been substantially modifying his version of the facts at his convenience (which, as to its substance, is also not reliable), it will be understood why this chamber considers him unworthy of the credibility granted to him by the majority of the trial court. [Nombre026] did not act or declare in a sincere and disinterested manner, nor "...<i>so that situations like his might serve as social reflection</i>" (Judgment, pages 1632 a 1633). The majority of the trial court considered that "<i>his statements are totally credible and disinterested</i>" (Judgment, page 1642); this assumption of the judges is not secured by any objective element. On the contrary, the process of change evidenced in his version of the facts is an objective factor that allows one to reasonably suppose that he acted in a biased or selfish manner, motivated by his own interest or convenience. <b><u>B) Extinction of the criminal action (statute of limitations).</u> </b>In this matter, there was an erroneous application of the rules referring to the regime of the statute of limitations for the criminal action. The statute of limitations is one of the causes for extinction of the criminal action (article 30, subsection e of the CPP) and it is worth recalling that the Constitutional Chamber has referred to the nature of the institution of the statute of limitations in the following terms:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>This Chamber has indicated on multiple occasions that the statute of limitations for the criminal action constitutes a procedural sanction for the inertia of the Administration of Justice, whose immediate objective is to guarantee legal certainty, both for the subjects involved in the case and for the community in general</i>» (Constitutional Chamber, No. 856-2001 of 3:18 p.m. on January 31, 2001).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>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) (Law No. 8422 of October 6, 2004, effective upon its publication in La Gaceta No. 212 of October 29, 2004), reformed the statute of limitations regime for the criminal action for crimes against the duties of public office, in the following terms:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Article 62.-<b>Statute of limitations for criminal liability</b>. The criminal action regarding crimes against the duties of public office and those provided for in this Law shall be subject to the statute of limitations in the manner established by applicable legislation; however, the following rules shall govern:</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>a) Once the statute of limitations has been interrupted, the time limits set forth in Article 31 of the Code of Criminal Procedure shall run again for a new period, without any reduction</i>.»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>b) In addition to the grounds provided for in Article 33 of the Code of Criminal Procedure, the criminal action may be interrupted by the declaration of illegality of the administrative function, whether active or omissive, or by the annulment of administrative acts and contracts related to the corresponding crime, whether the ruling is issued through judicial or administrative channels</i>.»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>It is immediately obvious that subsection a) of Article 62 of Law No. 8422 introduced a significant exception to what is provided in the first paragraph of Article 33 of the Code of Criminal Procedure (reformed by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2001) as the legal effect of the interruption of the statute of limitations period:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Once the proceeding has begun, the time limits provided in the article just before the last shall be reduced by half for calculation purposes, in order to suspend or interrupt the statute of limitations</i>…»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>It has been discussed throughout the process whether subsection a) of Article 62 of Law No. 8422 is applicable to this matter, specifically whether, once the statute of limitations has been interrupted, the time limit set forth in Article 31 of the CPP runs again for a new period, <i>with reduction or</i> <i>without any reduction</i>. This is a problem of the application of law over time, which is resolved by the direct application of two rules of our Political Constitution, namely, Articles 34 and 129, which read as follows:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«Article 34.- No law shall be given retroactive effect to the detriment of any person, or of their acquired patrimonial rights or consolidated legal situations.</span></i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Article 129.- Laws are binding and take effect from the day they designate; in the absence of this requirement, ten days after their publication in the Official Gazette.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>No one may claim ignorance of the law except in cases authorized by the law itself.</i>»<br> «<i>The waiver of laws in general, or the special waiver of those of public interest, has no effect.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>Acts and agreements contrary to prohibitive laws shall be null, unless the same laws provide otherwise.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>A law is not abrogated or repealed except by a subsequent one; against its observance, disuse, custom, or practice to the contrary cannot be alleged. By way of referendum, the people may abrogate or repeal it, in accordance with Article 105 of this Constitution.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>(This last paragraph as reformed by Article 1, subsection d) of Law 8281 of May 28, 2002, published in La Gaceta No. 118 of June 20, 2002).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>In accordance with these rules, Article 62 of Law No. 8422 cannot be given retroactive effect to the detriment of the defendant, and it must be considered that it is binding and takes effect from the day that law designates, which is that of its publication, occurring on October 29, 2004. By that date, the interruption of the statute of limitations period had already occurred in the case of Dr. [Nombre012], which was the first formal accusation (imputación formal) of the facts (according to Article 33, subsection a of the Code of Criminal Procedure), for which reason the statute of limitations period was reduced by half and began to run again from October 15, 2004 (the day on which the accused's preliminary statement was taken), because that is the effect provided for in the law in force at the time of the interrupting event. The initial statute of limitations period for the criminal action, in the case of Dr. [Nombre012], is five years (according to the relationship of Articles 31 and 32 of the Code of Criminal Procedure; 46, 74, 340, and 342 of the Penal Code, since the maximum term of the penalty is five years, given that he is accused of "Instigation to the crime of Aggravated Corruption in the modality of Improper Bribery"). Once the proceeding began, that period is reduced by half for calculation purposes for the purpose of suspending or interrupting the statute of limitations, and it was interrupted by the preliminary statement of October 15, 2004 (cf. Volume II, folios 552 a 558), giving rise to a new reduced-by-half period (that is, two years and six months) beginning to run, which elapsed without any cause for suspension of the criminal action and which was completed on April 15, 2007. The next interrupting act provided for in the law was the resolution convening the preliminary hearing for the first time (Article 33, subsection c of the CPP), an event that did not occur until September 10, 2007 (by resolution of 1:30 p.m. on September 10, 2007, cf. Volume XX, folios 8452 a 8453), which is why the extinction of the criminal action due to statute of limitations did indeed occur in the case of Dr. [Nombre012]. Now, this chamber does not overlook that the final paragraph of Article 376 of the Code of Criminal Procedure indicates that:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>When the application of the complex proceeding is ordered during the preparatory or intermediate phases, the reduction by half of the statute of limitations term, provided for in Article 33 of this Code, shall not apply</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>(As added by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2001).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>However, it is not enough that the resolution ordering that the matter is one of complex processing is issued during the preparatory or intermediate phases for the reduction by half of the statute of limitations term not to apply, for it is evident that it cannot be applied with retroactive effect to cases in which a ground for interruption has already operated that —for the benefit of the defendant— reduced the time limit by half, as happened in this matter, since the resolution ordering that it is of complex processing was not issued until March 3, 2006 (by resolution of 3:00 p.m. on March 3, 2006, cf. Volume XVII, folios 7506 a 7566) and became confirmed through vote No. 403-06 of 1:30 p.m. on June 23, 2006, cf. Volume XVII, folios 7703 a 7707), because the issuance of that resolution cannot revoke or annul the legal effect that the law itself assigns to an interrupting act already completed. We must bear in mind that the rule is that resolutions are not executed during the period for appeal and while the appeal is being processed, unless there is a legal provision to the contrary (Article 444 CPP). The second paragraph of Article 379 of the CPP emphasizes that:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i>The Courts shall especially ensure that the application of the special rules</i> [of the proceeding for matters of complex processing] <i>does not distort the principles and guarantees provided for in the Constitution, in International or Community Law in force in Costa Rica, and the law.</i>»</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>If the legal effect provided for in the final paragraph of Article 376 of the CPP is retroactively attributed to the resolution ordering that the matter be one of complex processing (having been issued during the preparatory or intermediate phases), the cited constitutional rules governing the application of law over time and the very principle of legality provided for in Article 1 of the CPP would be infringed, unjustly giving the Public Prosecutor's Office —and the court itself— the opportunity to circumvent that procedural sanction which is the statute of limitations for the criminal action.</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>Furthermore, there are Costa Rican legal works that analyze the scope of the final paragraph of Article 376; it is the academic opinion of two recognized jurists (both former substitute magistrates of the Third Chamber, former judges of the Criminal Cassation Court, and professors at the Faculty of Law of the University of Costa Rica) that were brought to the court's attention by the defense attorneys, specifically the following texts by Licenciada Rosario Fernández Vindas and Dr. Javier Llobet Rodríguez. The former explains:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>«<i><u>In accordance with this, we would have that if the process is declared one of complex processing after the ‘first formal accusation of the facts against the accused in crimes of public action,’</u> an act which, according to numeral 33 subsection a) of the C.P.P., entails the interruption of the statute of limitations for the criminal action, for a period reduced by half, <u>this reduction must be applied, because at that moment the process would not be of complex processing but simple</u>. In summary, it is not appropriate to give retroactive character to the referred declaration of complex, for the purposes of the exception established regarding the statute of limitations for the criminal action, as this is connected to the performance of certain acts, which ultimately is what influences whether the reduction of time to be considered for the criminal action to prescribe is applied or not applied, so that if the interrupting act of the statute of limitations for the criminal action occurs under the validity of the declaration of complex processing of the process, issued in the preparatory or intermediate stages, that reduction does not operate, and the full term must be counted from that point; <u>on the contrary, if the act that interrupts that statute of limitations occurred when the complex processing of the case had not been ordered, that is, when the process was conducted according to the general, simple procedure, the reduced statute of limitations period must be applied</u>, which would be maintained as long as no other act occurs that has the virtue of interrupting that statute of limitations, which, if produced already under the authorization of complex processing, and, therefore, under the exception situation, would mean that the period of interruption of the statute of limitations for the criminal action must be counted fully (not reduced by half) from that specific act</i>» (underlining supplied, FERNÁNDEZ VINDAS, Rosario: <i>Procedimiento para asuntos de tramitación compleja</i>, in A.A.V.V., Derecho Procesal Penal Costarricense, Tomo II, Asociación de Ciencias Penales de Costa Rica, 1ª ed., San José, 2007, pp.

923 to 924).

For its part, regarding the third paragraph of article 376 of the CPP, Dr. Llobet Rodríguez comments the following:

«*This paragraph was introduced in the reform of Law 8146 of November 30, 2001. The correct approach is that the lack of reduction of the term cannot be applied retroactively, so that when a cause for interruption of the statute of limitations (prescripción) occurred before the declaration of complex processing (tramitación compleja), the term that continues to run is reduced by half. In that scenario, when a new cause for interruption of the statute of limitations occurs after the declaration of complex processing, then in that case the provision that the statute of limitations term is not reduced by half does operate, so that the term that runs from this interruption is complete (on this see: Cf. Fernández Vindas. Procedimiento..., pp. 923-924)*» (the underlining is supplied, LLOBET RODRÍGUEZ, Javier: *Proceso Penal Comentado*, 4th ed., San José, Editorial Jurídica Continental, 2009, p. 567).

However, for the trial court, the declaration of complex processing does have, from the moment it became final (June 23, 2006), the effect provided in the final paragraph of article 376, that the reduction of the statute of limitations term by half, provided in article 33, does not apply; it so resolved -unanimously- in its resolution of 8:00 a.m. on May 14, 2010 (cf. Volume XXVII, folios 13352 to 13408 verso). In said resolution, the following is affirmed:

«*The last paragraph of numeral 376 of the Code of Criminal Procedure was included through a reform operated by Law No. 8146 of October 30, 2001, published in La Gaceta No. 227 of November 26, 2011, therefore it is and has been a current norm since several years before this process began, which dates from late 2004, and before the defendants gave their respective statements, which were all given starting in October 2004. While it is true that in principle the reduction of the statute of limitations term by half operated at the time the first act interrupting the statute of limitations occurred (statement of the defendants, under the terms of numeral 33 subsection a) of the Code of Criminal Procedure), at which time the process was being processed as ordinary (ordinario), the truth is that the defendants have been aware since that very moment and since the cited procedural reform was published, in principle, that said reduction could become ineffective if the process came to be processed as complex, since numeral 376 so established. So that, the validity of the reducing effect of the statute of limitations term was always subject to the process continuing to be processed as ordinary and that it would be lost if the rules of complex processing were applied, except, of course, that the statute of limitations term had been completed before said event, because in such a case, all the circumstances that would extinguish the criminal action by statute of limitations would have been configured, according to the rules of ordinary procedure, and it should be declared as such, insofar as the legal situation of the defendant became fully consolidated, without the application of complex processing being able to reverse said state of affairs, regarding which the subsequent resolution that recognizes it has declaratory and not constitutive effects*.» «*Thus, the elimination of the reducing effect by half, of the statute of limitations term in those cases whose running statute of limitations term had not been completed at the time the declaration of complex processing became final, does not constitute any retroactive application of numeral 376 of the Code of Criminal Procedure, nor of the judicial resolution that applies it, nor an infringement of the principle of legal certainty, because the defendants, from the beginning of the process, knew what to expect in that regard*» (Volume XXVII, folio 13364).

This reasoning contravenes the cited constitutional norms; its conclusion is fallacious, since the mere validity of the final paragraph of article 376, since it was added by Law No. 8146 in 2001, does not imply that the defendants could foresee -much less that they had to accept or "expect"- that the court would give a retroactive interpretation and application to that norm to "reverse" the effect of an interrupting act completed before the resolution that ordered the matter to be of complex processing was issued. If the trial court itself admits that the statute of limitations of the criminal action "is a sanction for inertia in the processing and judging" (cf. Judgment, folio 788), it is incomprehensible how it opts for an interpretation that circumvents the meaning of that cause for extinction of the criminal action, giving the accuser and the court itself the possibility of "reversing" that effect so that the criminal action revives, so to speak, and by that means elude the procedural sanction.

However, it is with that criterion that in that resolution of May 14, 2010, the case of each of the defendants was analyzed, resolving the following:

«*Unanimously, the exceptions of statute of limitations (prescripción) filed in favor of the accused [Name004]; [Name001]; [Name007], [Name009], [Name018], [Name015], and [Name021] are rejected. The exceptions of statute of limitations filed in favor of [Name024] and [Name012] are reserved for the time of the judgment.*» (Volume XXVII, folio 13407 front and back).

Upon issuing the judgment, the court takes up the matter again in Considering II of the judgment, section A), which it titles "Exception of statute of limitations of the criminal action in favor of the defendants [Name007], [Name021], [Name024], and [Name012]" and resolves with the same criterion (although this time by a majority of votes, since Judge Camacho Morales dissented on this point), reiterating that it is not a retroactive application of the law, but rather "the immediate validity of a procedural stipulation in a pending criminal case" yet to be resolved, making a convoluted argument that the principle of non-retroactivity (irretroactividad) only applies to substantive criminal law, not to procedural norms or institutions, such as the statute of limitations (cf. judgment, pages 786 to 800), an argument that in any case -for this chamber- does not justify or authorize ignoring the legal effect (immediate, one might say) that the preliminary statement (indagatoria) produced according to the legislation in force at the time that interrupting act occurred. Judge Camacho Morales, as previously stated, dissented on this issue, modifying the criterion he had previously shared with his colleagues in the resolution of May 14, 2010 (cf. dissenting vote, judgment, pages 1997 to 2012) and relies on case law that is pertinent to mention. In the first place, he cites the Constitutional Chamber, according to which:

«*Since the process is a sequence of singular acts previously regulated by law, the new legislation can perfectly govern the acts that are carried out after its validity, and the previous law governs the acts carried out under its formal validity, prior to its repeal, so that each act is valued according to the law in force at the time of its performance*» (Constitutional Chamber, No. 4397-99 of 4:06 p.m. on June 8, 1999).

He also mentions a judgment of the Criminal Cassation Court, which properly refers to the application of article 62 of Law No. 8422, and states:

«*Such a norm is effective only from its entry into force for cases in which any of the interrupting acts that the procedural regulations provide for occurs and provided that the term had not already been reduced previously as was provided, since the proceedings are governed by the procedural law that is in force at the time they occur and not by those that had already occurred. In other words, the entirety of the statute of limitations term could not be re-established based on a norm that was not yet in force at the time when, according to the legislation that did govern, a cause with a reducing effect occurred*» (Criminal Cassation Court, No. 2006-0132 of 10:30 a.m. on February 23, 2006).

In accordance with everything set forth in this section, this chamber considers that the trial court erroneously applied the rules concerning the statute of limitations of the criminal action, since in this case the extinction of the criminal action in favor of Dr. [Name012] did operate. The undersigned of this judgment consider that the Public Prosecutor's Office belatedly requested the application of the special rules provided for the so-called "Procedure for matters of complex processing" provided in articles 376 to 379 CPP; if it had requested them in a timely manner, it could have prevented the statute of limitations term from being reduced by half. This is another detail that, together with the way in which the opportunity criterion (criterio de oportunidad) was granted to [Name026], denotes the deficient management of the criminal action that existed in this case by the Public Prosecutor's Office. For all the indicated reasons, the appeal is granted, and the criminal action is declared extinguished because the statute of limitations has operated. The nullity of documentary evidence No. 588 and all the evidentiary elements that depend directly on it is declared. The criminal conviction judgment issued against Mr. [Name012] is annulled and in its place he is directly acquitted of all penalty and responsibility, since due to the nullity of the essential evidence and the statute of limitations it is impossible to order the reinstatement of the trial or the resolution regarding the criminal action, and therefore it must be resolved directly (article 465 third paragraph of the CPP) on the basis that his guilt was not demonstrated by a final judgment (sentencia firme), in accordance with article 39 of the Political Constitution. The appealed judgment remains intact insofar as it acquitted him for four crimes of Illicit Enrichment. Regarding the civil aspect of the judgment, reference must be made to what will be stated in considering VI, in which the appeal filed by Lic. Cristian Arguedas Arguedas on behalf of Dr. [Name012] is resolved. Given the way it has been resolved, it is unnecessary to rule on the other claims that the complainant raises in his appeal, since his corresponding claims have been addressed.

**III.- APPEAL OF LIC. RAFAEL ENRIQUE GAIRAUD SALAZAR.-** Lic. Gairaud Salazar, defense attorney for Mr. [Name012], has expressed his disagreement with the judgment through various writings, the first of which is an "appeal" (apelación) that he filed on June 2, 2011 (cf. Volume XXXV, folios 16894 to 16905). The second is a "cassation" (casación) appeal that he filed on August 4, 2011 (cf. Volume XXXVII, folios 17840 to 17907). The third is an "appeal of the judgment" (cf. folios 172768 to 172837), by means of which Lic. Gairaud Salazar adapts his previous claims to an appeal of a criminal judgment, in accordance with Transitorio III of Law No. 8837 of May 3, 2010 ("*Creation of the appeal of the judgment, other reforms to the challenge regime and implementation of new rules of orality in the criminal process*"), requesting to include that first appeal he initially filed. He warns that in the majority vote of judges Rosaura García Aguilar and Ileana Méndez Sandí (Judge Jorge Camacho Morales dissented) there are evident errors in the determination of the facts, in the incorporation and valuation of the evidence, the reasoning is contrary to due process and the penalty that was imposed on his client is disproportionate and contrary to law, because the accredited conduct is atypical of the crime of Aggravated Corruption (Corrupción agravada) he is charged with. He accuses the non-observance of articles 22, 142, 175, 178, 184, 204, 361, 363 subsection b), and 369 subsections c), d), and j) of the Code of Criminal Procedure; 62 of the Law against corruption and illicit enrichment; of the Universal Declaration of Human Rights and the American Convention on Human Rights ("Pact of San José"); and of articles 47, 71, 340, and 342 of the Penal Code. He requests that the judgment be declared ineffective and invalid and that a remand be ordered for a new proceeding, or that the acquittal of [Name012] be directly issued, for the following reasons. **A)** Lack of reasoning and violation of sound rational criticism (sana crítica racional). The majority did not provide reasons for their decision. Nor did they explain the value assigned to a large part of the evidence, which was not even analyzed, but simply mentioned by the resolution, despite the express request of the defense to do so. The majority gave the value of full proof (plena prueba) to the statement of the cooperating defendant [Name026], omitting to consider that his word was not corroborated by any other means of evidence. Nor is it appreciated that, according to [Name026]'s own word -in the sense that he initially accepted the corruption proposal raised in the [...] restaurant-, it is evident to deduce that he was *determined* (determinado) to commit a crime from the very moment he accepted the proposal, long before the alleged meeting with [Name012], and that what he supposedly required from the latter was to help him in case "the matter got complicated", something that never occurred, according to what [Name026] tells us. Since [Name026] had accepted the offer of a bribe (dádiva), it is evident then that [Name026] was already *determined* before supposedly speaking with [Name012], so it is not possible to consider the latter as *instigator* (instigador) of anything. The majority accepts everything [Name026] declares as true and does not even specify in its totality the circumstances of mode, time, and place in which the crime is supposedly consummated, what the alleged help from [Name012] would consist of. It omits resolving the questions that the defense raised regarding the application of the opportunity criterion in favor of [Name026], alleging lack of competence, which is not only illegal but a resignation of the competencies of the appealed authority, given that the court is obliged to resolve all the debated issues. [Name026] could not benefit from said opportunity criterion since his *reproachability* (reprochabilidad) is equal to or greater than that attributed to his client: "...*this is evidenced* -says the complainant- *when in the analysis of the civil action the Court itself, unanimously, points out the impossibility of establishing a single joint liability (solidaridad) among the supposed participants, pointing out independent chains of responsibility, [Name026] appearing in two of them, while my client in only one, this to derive from the judgment itself the greater reproachability of [Name026], not counting that [Name026] is designated as the MAIN AUTHOR (AUTOR PRINCIPAL) and my client a mere participant, that [Name026] had absolute CONTROL OF THE ACT (DOMINIO DEL HECHO) and my client did not, that [Name026] committed many more crimes than the one related to the contracting of the 400 thousand cell phone lines, which evidences that it is clear and transparent that [Name026] was not susceptible to benefiting from the immunity agreed upon by the opportunity criterion since he does not have a lesser reproachability than my client, none of this was addressed by the Court in its majority composition, since it illegally breached its duty as controller of the legality of the acts of the debate and refused to address the appropriateness or not of the institute, as well as that [Name026]'s declaration was invalid...*" Likewise, an erroneous application of article 62 of the Law against corruption and illicit enrichment is made, approved long after Mr. [Name012] ceased being a public official and therefore was not retroactively applicable to him, as the majority that imposed a conviction in this process illegally did, contradicting a prior interlocutory resolution that they themselves had issued, pointing out that for the case of [Name012] the only thing that had to be done was the precise determination of the applicable criminal type. He also reproaches the rejection of the defense's argument regarding the facts for which [Name012] was questioned (indagado): "*The court does not analyze the content of the defense's protest that pointed out that Mr. [Name012] was questioned based on the initial statement of [Name026], something he himself acknowledges in the debate, in which he alleged in his favor having incurred in the receipt of bribes for a completed act, while the accusation and the debate concerned a supposed act of Aggravated Corruption, evidently these are absolutely diverse facts, some for which our client was questioned and others for which he is judged, violating the principles of inviolability of the defense, due process and notification, the majority vote evades the problem with an absurdity that the defendant could expand his statement on these other or new facts, which I repeat is absurd since the burden of the accusation corresponds to the accusing body, not the defense, so the problem is not resolved and the unquestionable fact that the former president was not questioned for the facts for which he was judged persists. In his first statement, [Name026] never says that he received a corruption proposal, that he accepted it, and that he therefore favored ALCATEL, for a later bribe, as his initial statement is, our client is questioned, but later he is judged for a fact that [Name026] related later and for which my client WAS NEVER QUESTIONED...*", which invalidates the entire process. The evidence allows for sustaining the non-existence of an illicit action by [Name012], but the court, in an absurd and illogical manner, assigns the spurious version of [Name026] the character of full proof and gives it full credibility. Regarding the penalty imposed, the absence of reasoning in the majority vote is evident; it is absurd to impose the maximum penalty on a mere participant when the main author is granted absolute impunity. As evidence, he requests a) the videos of the debate held, to accredit the real version of [Name026] at trial and the acceptance of the moment of consummation of the crime; b) That a statement be received from the convicted defendant [Name027] so that he refers to the existence or not of a corrupt proposal from Alcatel (cf. appeal in Volume XXXV, folios 16894 to 16905). **B)** Violation of due process in the determination of the facts. If the defendant with the opportunity criterion, [Name026], acknowledges that he "accepted in principle" the proposal made to him by Alcatel officials (proven fact 88), the crime was consummated, and the alleged instigation (instigación) attributed to [Name012] at a later time is not possible. The proven fact, in any case, cannot be considered accredited by the sole word of the cooperating defendant [Name026]. If the court had doubts about the meaning of the phrase "in principle", it should have opted for the interpretation most favorable to the defendant, by application of the principle *in dubio pro reo* (cf. appeal, Volume XXXIX, folios 172770 to 172772). **C)** Violation of due process in the incorporation and valuation of the evidence. This is so because the statement of [Name026] is taken as a means of proof and not as a means to obtain proof; by incorporating it, it is given the value of full proof and on his sole word, facts of relevance are considered accredited, such as the supposed meeting and the supposed acceptance attributed to [Name012] (cf. appeal, folios 172772 to 172773). **D)** Violation of due process in the setting of the penalty. The majority confirms the impunity of [Name026] and instead imposes the maximum penalty on [Name012] for conduct that is not even constitutive of the crime of instigation, but even if it is considered criminal, it is evident that it constituted a minimal participation, so the penalty does not reflect the criteria of proportionality and reasonableness established in our law, for which reason he requests it be reduced to the minimum and benefit of conditional execution of the penalty (ejecución condicional de la pena) be granted (cf.

appeal, folios 172773 to 172774). **E)** Lack of substantiation of the sentence handed down by the majority; proven facts No. 71 to 75 have no proof other than the mere word of the collaborating accused [Nombre026], which was not corroborated or validated by any lawful means of proof obtained through him (as a "source of proof"). The lady judges do not explain how [Nombre012] "requested" and then "ordered" [Nombre026] to manage payments with Alcatel. In the case of the co-defendant [Nombre018], there are several supposedly circumstantial elements that corroborate [Nombre026]'s statement about his participation, but the same is not true regarding [Nombre012], as no reference is made to any element of proof that directly or indirectly corroborates what [Nombre026] says. He testified as an accused, enjoying all the rights and guarantees of that condition, being assisted by a defense attorney and allowing him to abstain from testifying in response to the questions asked of him, even having his defense attorney whisper the answers in his ear and he simply repeated them, something which in any legal model is absurd, because the defense attorney cannot answer for the accused (requests that the video of [Nombre026]'s statement during cross-examination by the defense be reviewed). It is clear that [Nombre026] sought his impunity at all costs, testifying against third parties, so his was an interested statement; therefore, other means of proof were necessarily required to support his word. [Nombre026] changed his version from September 31, 2004, when he confessed to an alleged receipt of gifts, as he himself points out in his trial statement transcribed in the sentence when he states: "*Yes, I did say in that statement that I received the money or bonus from Alcatel after the award by the board of directors, I believe I gave that version on September 30, 2004, I don't remember if I consulted my lawyer about it. What I have is a legal veneer, but I have already explained here that the truth is another, I had already indicated that here, what I said here is what is true. I did not lie, but rather I simply tried to cover myself up or self-protect at that time, but later I became more precise. Alcatel offered me 1.5% or 2%* [...] *In that statement of September 30, I admitted my responsibility and gave a detailed description of them, in an eagerness to self-justify I indicated that the offer would materialize later, but then I went on to clarify the point...*" [Sentence, pages 543 to 544], which he then changes to confess to an alleged Aggravated Corruption by Improper Bribery, a statement that is precisely given to grant him an expedited procedure, with only four years of custodial sentence, when the prevailing jurisprudence was based on the principle according to which "house arrest" did count towards the sentence, such that [Nombre026] would have served half the sentence and could request the application of the benefit of Article 55 of the Penal Code, at the moment he provides his second version of the facts; instead, said house arrest, strangely, when no other accused was subject to precautionary measures limiting their freedom of movement, was maintained for the collaborating accused until the moment the possible sentence to be imposed, according to that jurisprudence now totally discredited by the Third Chamber, would have been completely served. [Nombre026] obtains the application of the opportunity criterion in his favor by virtue of that *new* statement, thereby obtaining impunity not only for the crime that the Public Prosecutor's Office links to [Nombre012], but for seven or eight more crimes, some related to the company Alcatel itself for money received as a product of corruption [cites the statement of the expert from the OIJ, [Nombre036], who declares that [Nombre026] received money before and after the four hundred thousand lines, without it having been established that he required external support to receive that money], as stated by the Public Prosecutor's Office during the process, only to later retract, but at a time when all these crimes are time-barred or in the process of becoming so. [Nombre026] did not supply any independent means of proof to support his word; it is not true that from his first statement he showed a clear purpose of collaborating with the Administration of Justice, because the truth is that in one of his two versions he lied because they were opposed to each other. In the first version, he says that Alcatel officials contacted him to offer him a gift after the award of the four hundred thousand lines; in his second version, he says they contacted him before the award: "*How can one say*," questions Attorney Gairaud Salazar, "*that [Nombre026] collaborated with the Justice system from the beginning, if he would later declare, to obtain the benefit of the expedited procedure or the opportunity criterion, that he was contacted before the award and offered the gift, at a time when, while enjoying house arrest, he was first offered an expedited procedure with a meager penalty (while my client was given the maximum penalty as an alleged instigator), and then an opportunity criterion that grants him ABSOLUTE IMPUNITY, when identified by the Public Prosecutor's Office in their closing arguments as the DIRECT PERPETRATOR WITH FULL CONTROL OF THE ACT. In this sense, we must say that if both versions are diametrically different, in one of them [Nombre026] lies. If in the first one, his interest was not to collaborate with the Administration of Justice, but to hinder it, obstruct it, and if in the second, he equally lies in an interested manner, to obtain a benefit, and thus the questioning, supposedly excluded by the majority judges, that his interests in testifying are spurious is fully corroborated, in the face of the naive and biased version of the majority vote.*" Facts No. 85 to 93, which are held as proven against [Nombre012], lack legitimate substantiation, because the mere word of [Nombre026] is not enough; instead, the trial court needed to have independent proof to corroborate the collaborator's version. The Section of Economic and Financial Crimes of the OIJ determines that the alleged gifts delivered by [Nombre026] to [Nombre012] do not correspond to the 60% that according to [Nombre026] was agreed upon, which constitutes a "counter-indication" that allows one to maintain that [Nombre026] is not telling the truth. The lady judges ignore the nature and applicability of the opportunity criterion ("crown witness") and err in giving the character of absolute proof to the word of [Nombre026]; the alleged participation of [Nombre012] was not part of the corruption agreement that existed between [Nombre026], [Nombre035], and [Nombre015], ignoring the fact that in his statement [Nombre026] indicates that said meeting took place in the month of November 2000, not in the first week of December. The majority tried to accommodate reality to what [Nombre026] said, violating the principle—accepted by them themselves—that [Nombre026]'s version must be corroborated on matters of fact of criminal relevance. The majority also did not rule on another "counter-indication" raised by the defense in their closing arguments, which discredits [Nombre026]: that the meetings in [...] and at [Nombre012]'s house cannot have been on December 3 and 4, 2000, because on December 5, [Nombre026] appeared to vote in the ICE's Board of Directors contrary to what Alcatel required (he voted for a direct contracting instead of an open contracting exclusively in favor of Alcatel for the procurement procedure), which also allows one to see that [Nombre026]'s statement cannot be considered truthful nor corroborated by any direct or indirect means of proof, and cannot be considered as testimony, as he is an accused who had a direct interest in the outcome of the process. Requests that the sentence be annulled and a retrial be ordered (cf. appeal, folios 172774 to 172800). **F)** Lack of substantiation of the sentence because it omitted analyzing and ruling on the following questions raised by the defense: **a.-** That on December 5, [Nombre026] appeared to vote in the ICE's Board of Directors contrary to what Alcatel required (he voted for a direct contracting instead of an open contracting exclusively in favor of for the procurement procedure), which discredits what [Nombre026] says about the alleged meetings at "[...]" and at [Nombre012]'s house and demonstrates that by December 5, such a corrupt pact did not exist, that [Nombre026] lied, that the alleged meeting at [Nombre012]'s house, on which the majority supports Mr. [Nombre012]'s alleged criminal liability, did not occur (cf. appeal, folios 172800 to 172803). **b.-** The effect that a vote by [Nombre027] in the Board of Directors has on the alleged existence of a corrupt pact between Alcatel and various ICE directors, and which is the substratum of alleged reality that, according to the majority, gives credibility to what [Nombre026] said. "*The sentence holds it as proven that this process of buying consciences by Alcatel took place between April and August 2000 and that through this action attributed to the accused who were Alcatel officials ([Nombre035] and [Nombre015]), at least three directors were enrolled, two appointed by my client ([Nombre027] and [Nombre026]) and one with a close relationship to him although appointed by President [Nombre051] ([Nombre004]). In short, to take [Nombre026]'s statement and the process of seduction to which he claims to have been subjected by Alcatel officials as truthful, the majority vote holds as proven, at least, that by the end of 2000, three ICE directors were bought by the French transnational company. However, the same majority vote points out, when recounting the different sessions of the ICE's Board of Directors related to mobile telephony, that in March 2001, [Nombre027] takes actions contrary to Alcatel; specifically, he requests reconsideration and revocation of a previous vote that had determined to acquire 160,000 GSM technology lines from the Alcatel company, with [Nombre027] not having enough votes to have said reconsideration accepted* [...] *If the court, in its majority vote, holds this as proven based on the documentary evidence that incorporates the minutes of the ICE's Board of Directors, and has pointed out that by the end of 2000, [Nombre027] was a piece, necessarily had to be a piece bought by Alcatel, to thus corroborate [Nombre026]'s version, it is evident that it was essential, not only to prove the existence of the corruption plan, but also the very truthfulness of what [Nombre026] said, to resolve, as we requested, this specific topic, which was clearly evaded by the majority, who did not even consider this aspect in their 'substantiation,' I reiterate, expressly required by the defense and which was requested to be resolved in order to make evident the impossibility of giving credibility to the confessing [Nombre026]'s version. Both arguments were presented to the Court, and it did not resolve them by substantiating the content of the defense's proposals*" (cf. appeal, folios 172803 to 172805). **c.-** [Nombre026] gives two versions of the facts in the process, the first on September 30, 2004, in which he says he received a gift from Alcatel without a prior promise, and another in May 2005, given for the purpose of applying an expedited procedure in his favor that later leads to an opportunity criterion, in which he points out that the proposal was prior to the award, in which he committed to three conditions (which, based on what was said earlier, he breached on December 5, 2000), and in which [Nombre012]'s alleged participation is no longer limited to receiving part of those gifts, but to allegedly intervening in the process of [Nombre026]'s determination to commit a crime. Both versions are contradictory; they cannot both be true, but the court does not analyze the question raised by the defense regarding [Nombre026]'s credibility (cf. appeal, folios 172805 to 172806). **d.-** The defense also argued that, given the obvious contradiction of [Nombre026]'s versions, it was necessary to determine which one was true and, if this was impossible, to opt for the most beneficial for the parties, in application of the principle *in dubio pro reo*. But the majority omits resolving this argument, which has decisive consequences on the operative part, because "*...if the crime was Receipt of Gifts and my client, in the version of September 30, does not intervene in [Nombre026]'s decision to commit a crime, then the reprehensible conduct would have been, as we elaborated in our closing arguments, hypothetically a simple receipt of gifts by my client, which was atypical since they would have been received when my client was not a public official, an essential element of the objective type, and therefore would be unpunishable, or at least the statute of limitations would have applied*" (cf. appeal, folios 172806 to 172807). **G)** Violation of the rules of sound criticism, because the sentence is not coherent but contradictory on essential aspects related to the credibility that can be given to the version expressed by the accused [Nombre026] and the conditions that he was required to fulfill by Alcatel within an alleged corruption offer made to him at "[...]" in Alajuela. "*On one hand, the resolution maintains, in the analysis of the merits, that [Nombre026]'s version is completely credible and that, regarding the existence of the illicit proposal, it is proven that [Nombre026] was offered a percentage of the value of the contract for four hundred thousand cell phone lines, in exchange for fulfilling three conditions: 1) Protecting the migration to GSM technology, 2) protecting that said migration was carried out through an open competitive bidding procedure, and 3) that once the technical areas recommended Alcatel's proposal, he would vote in favor of it. However, despite this, the majority vote itself acknowledges that the determination to migrate was determined by the technical areas of ICE, and in them, [Nombre026] himself declares, he had no involvement, nor did he ever speak or seek anything in the sense of migrating. Second, the majority vote itself acknowledges that the decision on how to acquire, through direct purchase or open or competitive bidding procedure, DID NOT CORRESPOND and DID NOT CORRESPOND to ICE to determine, much less to its Board of Directors and least of all to [Nombre026], but rather to the Office of the Comptroller General of the Republic* [...] *From the above, an evident contradiction follows in the majority vote: either [Nombre026] committed to and fulfilled Alcatel's demands as part of the corruption proposal made to him, or it was the Comptroller's Office in its case and the technical bodies that determined not only the mode of contracting, but also the migration itself to GSM technology; but both propositions cannot be simultaneously true. Both propositions are clearly contradictory. Either [Nombre026] tells the truth and he had control, some degree of control, over these matters, which is why his compliance is demanded to receive the gift, or he lies and this, as the Court accepts in the majority vote, was in the hands of other entities over which or on which [Nombre026] had no control or influence; but both propositions cannot be simultaneously true. The Court states, as I said, in a contradictory manner, both the credibility and the lack of credibility of [Nombre026]'s statement on core aspects of his alleged intervention in the questioned contracting, even more so regarding his possibility of fulfilling the requirements allegedly demanded by Alcatel, which makes the substantiation contradictory, both arguments mutually annulling each other and leaving the resolution without adequate substantiation. There is a clear contradiction in the analysis of the elements, given that, as we said, by the principle of non-contradiction it is held that two opposing judgments cannot both be simultaneously true; two contrasting judgments annul each other. Likewise, the resolution is contradictory in holding as proven that by December 4, 2000, [Nombre026] had received the corruption proposal from Alcatel, had consulted my client, and had been determined to commit a crime—this topic of consummation we will see later—but it is evident that the Court bases my client's liability on the fact that at the meeting supposedly held on December 4 at his house, he determined [Nombre026] to commit a crime; however, it holds as proven, without any doubt, that on December 5, the day after [Nombre026] was determined to commit a crime, he votes favorably on points contrary to the supposedly already accepted agreement: first, he votes for a Direct Purchase, when Alcatel demands an open contracting process, and furthermore, he does not vote in favor of Alcatel, but of all its competition. Since said statements are totally contradictory and cannot both be simultaneously true, and this results in the substantiation being incoherent and therefore null and void and subject to appeal, we expressly request the Court of Appeals to declare this ground of appeal to have merit, annulling the contested resolution because it is based on contradictory propositions from which it derives or intends to derive criminal liability for my client*" (cf. appeal, folios 172808 to 172811). **H)** Violation of the rules of sound criticism in the determination and substantiation of facts. In the present case, the resolution flagrantly violates the logical rule of derivation, by estimating, based on the evidence, that there was illicit conduct by my [Nombre012], despite all the evidentiary elements indicating, even [Nombre026] himself, that there was no conduct by my client that in any way favored Alcatel or its contracting by ICE. According to [Nombre026]'s version, he determines at his home, after receiving the proposal from Alcatel officials, that the matter was very complex and that he needed to have the support, he says, of the President, to move forward, but that he never needed to ask him for anything because the procedure "was going very smoothly." The foregoing is essential to corroborate two things: technically, there is not, in any of the evidentiary elements admitted to the debate, a single one from which to legitimately derive the existence of illicit conduct by my client; on the contrary, as we pointed out earlier, when [Nombre026] refers to his participation, he merely limits himself to pointing out that he allegedly consults the President in case the help of a higher authority was needed, which he confesses was never necessary. The majority vote itself holds this as thus proven [alludes to proven fact No. 91]; even under the assumption that [Nombre026] informed the Alcatel officials that he required a higher authority, in none of his versions does he state that he informed them it was the President of the Republic; in fact, this decision to supposedly communicate it to Dr. [Nombre012] arises after he ponders the matter at his home and simply for the event that he might need some help that, we reiterate, was not necessary, according to [Nombre026] (cf. appeal, folios 172811 to 172813). **I)** Violation of the rules of notice to the accused. In their closing arguments of the debate, the defense raised the issue that [Nombre012] was not duly notified during the investigation stage of the facts for which he is finally accused and convicted. "*The basis of such questioning*," points out Attorney Gairaud Salazar, "*lies in the fact that since the Constitutional Chamber has declared that Notice is part of Due Process (votes 9879-2001 and 1739-92. Constitutional Chamber) and consists of the fact that the accused must not only be informed of the provisional classification made of the investigated facts or know the evidence the Public Ministry has at that time, but fundamentally, associated, as Llobet points out, with his right to abstain, to know the specific facts for which he is being investigated. Evidently, as is logical, the facts for which the accused is notified at the time could vary, and this obliges that in the event this variation affects or changes the possible liability, it is the obligation of the Public Ministry to question the accused again, notifying him of the new facts attributed to him* [...] *This is precisely what was presented to the court; my client was questioned on October 15 based on the facts that [Nombre026] had accepted, consisting, as was demonstrated to the Court in closing arguments through documentation, of the assertion that he, [Nombre026], after the award to Alcatel, would have received a gift without a prior promise. In those facts, [Nombre026] does not state that he required help from my client or that the meeting with Alcatel officials had taken place at '[...]' or at my client's house. He was notified that, according to [Nombre026], of the gifts received, a part was given to my client. However, when [Nombre026] changes his version in May 2005, for the purpose of offering an expedited procedure, later used to benefit him with an opportunity criterion, [Nombre026] radically and substantially varies the facts and points out that his original version, given, as he stated in the debate, due to his knowledge or legal veneer and as a mechanism of self-justification and search for lesser responsibility, must be understood in the sense not that he received the gift without a prior promise, but that there was a meeting at '[...]' in Alajuela in which [Nombre035] and [Nombre015] proposed the payment of a gift in exchange for fulfilling three conditions of help in Alcatel's favor, and that finding it attractive and accepting the proposal in principle, after pondering it at his home, he decides to consult it with the President of the Republic, Dr. [Nombre012]. Evidently, there is a huge difference between one set of facts and the other; in one case, it is a gift without a prior promise and without action by my client, except for the receipt in turn of alleged gifts related to the money received by [Nombre026] from Alcatel, and in the second version, there is an alleged 'prior' participation by my client, with a meeting included, in which he is informed of the corruption proposal made to [Nombre026] and favors it. The issue is, then, that since my client was only notified of the first facts and a new questioning was never ordered to notify him of the new facts related by [Nombre026], there is a flagrant violation of his constitutional and legal rights, irremediable as it involves the violation of fundamental rights however (Art 178 of the CPP); surprisingly, the Court affirms, in its majority vote, that there is no defect whatsoever, and shifting the procedural responsibilities, it says on one hand that it was the obligation of my client or his defense to request the new notice, which is an absurdity that violates the constitutional principle of non-self-incrimination, and second, because jurisdiction over the control of the process corresponds to the Public Ministry. It is in the interest of the Public Ministry that the act of notice be carried out, given that by law, said power was conferred upon it with the reform that gave rise to the current Procedural Code, and finally, because it is not the task of the defense—it is not the competence of the defense—to decide if the accused is notified of new facts; what is the competence of the defense is that, once duly notified, the accused testifies or not. Thus, the issue rests on the fact that Dr.

[Nombre012] was not formally charged (intimado) except regarding the receipt of two checks drawn from 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 some certificates with the third payment indicated by [Nombre026] on September 30, 2004; the rest of the alleged receipts of money are facts for which my client was never formally charged and therefore was never investigated, nor was he investigated for the existence of the alleged meeting at his house, in which he supposedly determined [Nombre026] to commit a crime, that is, HE WAS NEVER FORMALLY CHARGED FOR INCITEMENT (INSTIGACIÓN), preventing, in accordance with due process (debido proceso), being tried and much less convicted for such facts." The trial court rejects the defense's objection, saying that the right of defense was not affected, that [Nombre012] could have requested the expansion of his first statement, but the correct procedure—the appellant argues—is that the accused be formally charged regarding the facts imputed to him, at least the fundamental circumstances to fit the conduct into a criminal type and be able to exercise the right of defense, "...something that does not happen in this case, in which the formal charge, based on the first statement of [Nombre026], is not even remotely similar to the one contained in his second statement, not only because of the factual circumstances themselves but also because of the variation in the alleged participatory conduct and its typical classification; for this reason, my client should have been re-investigated after the variation in [Nombre026]'s statement in May 2005, which did not occur [...] Therefore, to maintain, as the majority does, that our questioning is absurd because accepting it would paralyze the investigation stage is a mechanism to evade the specific point raised by the defense; it is not about evidence, I reiterate, it is about facts, and every time the facts vary, the accused must be investigated for those new facts, as many times as possible, if they are susceptible to fitting another criminal type. In this case, such essentiality derives from the fact that it is affirmed that my client incited (instigó) [Nombre026], and this was not a fact known in the case file at the time my client testified, but rather eight months later, when [Nombre026] gave his second version of the facts." [Nombre012] was never formally charged for the facts of which he was accused, he was never formally charged with facts of incitement (instigación); the new formal charge should have occurred at the moment new facts were inserted, which did not happen either in the intermediate stage or in the debate, as is falsely stated in the majority vote; what happened at the beginning of the debate is that the Prosecutor's Office reclassified (recalificó) the facts to a more serious figure, Aggravated Corruption by Bribery (Corrupción agravada por Cohecho propio), but there was no variation whatsoever in the accused facts. It is an irremediable defect, an absolute defect under the terms of Article 178, subsection a) of the Code of Criminal Procedure (Código Procesal Penal), because it is a right of constitutional nature, being a fundamental right enshrined in the Universal Declaration of Human Rights and in the American Convention on Human Rights ("Pact of San José"), as indicated by the Constitutional Chamber (Sala Constitucional); therefore, a dismissal (sobreseimiento) should have been ordered, since it is not possible to revert the matter to stages that have already precluded to remedy the defect (cfr. appeal, folios, 172813 a 172821). J) Violation of the rules of sound criticism (sana crítica) and of the control of the institute of the opportunity criterion (criterio de oportunidad). In the face of interlocutory questions made by the defense regarding the application of the opportunity criterion, the same judges who issued the majority vote in the sentence jointly issued the resolution at 1:30 p.m. on September 2, 2010, indicating that their court was not competent to hear the questions made regarding the opportunity criterion granted in favor of [Nombre026], stating that this power corresponds to the Third Chamber of the Supreme Court of Justice (Sala Tercera de la Corte Suprema de Justicia). This is an illegal, even unconstitutional, renunciation of the criminal court's competencies, which is responsible for hearing all debated matters and exercising jurisdictional control of due process, as ordered by the current procedural law. As Judge Camacho Morales points out in his dissenting vote (voto salvado), the procedure followed for the application of that institute in favor of [Nombre026] transgressed due process. It is in the sentence that the judges determine that it is by comparing the supposed reproaches attributable to [Nombre026], against [Nombre018], [Nombre015], and [Nombre012], that it can be established that supposedly [Nombre026]'s conduct, being the principal actor (autor principal), is less reprehensible: "However," the complainant adds, "such possibility was denied to the judge who heard the request for application of the opportunity criterion, thus violating the jurisdictional control of the opportunity criterion established in the procedural law; the Judge to whom the Prosecutor's Office's request was presented was not allowed to establish whether it was true that [Nombre026]'s conduct was more or less reprehensible than that of the other three mentioned accused. It is precisely the reasoning made by the Court regarding the possibility of comparing the lesser lack of reprehensibility (irreprochabilidad) or lesser severity of the fact, among the different agents involved in the institute, that was violated, because by dividing the competencies, deliberately by the Prosecutor's Office, so that one judge heard the request for application of the Opportunity Criterion and another heard the Accusation, it prevented that control regarding the greater or lesser lack of reprehensibility required by the legal system from being carried out in any way, rendering the procedure for granting the institute completely flawed, violating due process and the legal system, not due to a nullity for nullity's sake, but because the exercise of my client's right to defense derives from the application or not of the institute, his real and not merely formal exercise, even more so when the benefited accused has the virtue of convincing a court that determines that the existence of corroborating evidence is not necessary, but that the problem is one of simple credibility or not. Given that, as we have seen, the statement of the collaborating accused, within the institute of the 'OPPORTUNITY CRITERION' (Art. 22 of the Code of Criminal Procedure), is not EVIDENCE, but rather its content must be accompanied by lawful means of proof that allow corroborating or validating the version of said accused, and therein lies the value of said statement NOT as a MEANS OF EVIDENCE, but as a means of OBTAINING EVIDENCE in accordance with numeral 22 of the CPP which provides '... and the accused collaborates effectively with the investigation, provides essential information to prevent the crime from continuing ... helps clarify the investigated fact or other related ones or provides useful information to prove the participation of other accused ...' It is evident that the Judge who approves said criterion must have at his disposal the totality of possible lack of reprehensibilities, that is, the accusation and the request for approval of the opportunity criterion, and resolve, as the law requires at the end of the preliminary hearing (Audiencia preliminar), numerals 37 and 319 of the Code of Rites violated by the majority vote." Secondly, the challenger reproaches, it was not appropriate to evade the resolution of the opportunity criterion and point out, as the majority vote does, that [Nombre026] testified moved by an altruistic interest, since his spurious interest is evident. He also does not share the majority's affirmation when it says that the Third Chamber has erroneously interpreted the issue of greater or lesser lack of reprehensibility, in the sense that the "repentant" person's participation be milder than that of the one sought to be prosecuted, because reprehensibility cannot be determined until the sentencing stage, when the existence of the unjust act has been determined, which would make said procedural institute inapplicable in any case. In this case, [Nombre026]'s conduct is more serious than that of any other accused, since the Prosecutor's Office itself points out that he was the direct actor with full control of the act (autor directo con pleno dominio del hecho) and therefore his conduct could not be less "reprehensible" than that of a participant; it was not possible to grant impunity to an actor in the face of an alleged incitement that the court recognizes does not consist of a direct action of determination, but was symbolic. He requests that the appealed sentence be declared invalid for being based on an illicitly granted opportunity criterion and that a dismissal (sobreseimiento) judgment be issued (cfr. appeal, folios 172821 a 172828). K) Violation of the rules of application of the penalty and lack of reasoning. He alleges that if the majority imposes the maximum term of the penalty on his client, it does so by saying that this is by virtue of his "greater lack of reprehensibility (irreprochabilidad)" regarding the protected legal interest and for a reason that is clearly spurious, because he was the President of the Republic and because [Nombre026] is less reprehensible, for speaking and because he returned a sum of money, while his client did not return any sum and tried to evade his responsibility by attempting to give explanations that were, in the majority's judgment, unsustainable and because he did not give explanations regarding the origin of part of the money received from [Nombre026]. "These affirmations," alleges attorney Gairaud Salazar, "even though the majority hastened to try to point out that they are not applying the theory of Author-Based Criminal Law (Derecho Penal de Autor), are evidently revealing that indeed the reasons for which the maximum penalty is imposed are unsustainable: First, the greater or lesser lack of reprehensibility does not depend on the hierarchy of the function exercised by the official, but on the greater or lesser impact on the harm to the specific legal interest, not in the abstract, that is, that for the specific fact, the acts of the responsible party are of such or such magnitude as to determine the imposition of the penalty. Second, the exercise of the Right of Defense, which is precisely the corollary of the affirmation that [Nombre026] confessed and that my client did not do so, is a flagrant violation, another one, of due process; the penalty and the maximum penalty cannot be imposed because the accused exercised a constitutional and legal right; such an affirmation becomes arbitrary and illicit legally and constitutionally. Finally, it is based on the reversal of the burden of proof; it is not the accused who must demonstrate, it is the prosecution, in such a way that having not supposedly given said explanation of the funds makes the subject's conduct more or less reprehensible. These three reasons derive in the illegitimacy of the criterion used by the majority to establish the supposed greater lack of reprehensibility of my client compared to [Nombre026], but they do not constitute a reasoning for why the maximum penalty was imposed on my client. In any case, being illicit reasons, they would be excluded as a basis for the imposed penalty, and being so and not having specified the reasons not for the supposed greater or lesser lack of reprehensibility of my client but for the why of the quantum of the penalty, it is evident that the penalty is imposed in a whimsical and illegal manner, violating the duty to provide reasoning for the penalty [...] For exercising his right of defense, the maximum penalty is imposed on him; that is the conclusion we reach after reading the reasoning for the penalty by the majority vote. Nor is it possible to consider said penalty reasonable if we consider that my client acts, according to the majority vote, as a simple instigator (instigador), not as an actor (autor), that the incitement was subliminal, a gesture or a division of percentages, not the direct and express action on [Nombre026]'s psyche, so that it is disproportionate that the Direct Actor with Full Control of the Act goes unpunished and the subliminal instigator is imposed the maximum penalty provided for the crime." He requests that the ground of lack of reasoning and adequate determination and proportionality of the penalty be accepted and that, in the event that the other grounds of appeal regarding form and substance are not accepted and the appealed sentence is confirmed, the imposed penalty be correctly adjusted to an equivalent extent that allows the conditional execution of the sentence (cfr. appeal, folios 172828 a 172831). L) Violation of the rules of application of the substantive norm of Incitement (Instigación) (articles 47, 342, and 340 of the Penal Code). The facts found proven in sentence numbers 90 and 91 do not fit the criminal types of "Accomplices" (article 47 of the Penal Code), "Improper Bribery" (Cohecho impropio) (article 340 of the Penal Code), and "Aggravated Corruption" (article 342 of the Penal Code). [Nombre026] did not require being determined but rather, eventually, counting on help. For the majority, the incitement is not even direct but derives from the statement "let's do 60/40." Attorney Gairaud Salazar adds: "Then, from the very moment the proposal is made to [Nombre026], he accepts it; the majority vote says that [Nombre026] points out that he does so 'in principle,' an adverb that according to the dictionary 'Pequeño Larousse' is provisional, without full acceptance, which evidently is not correct. When [Nombre026] says that he accepts in principle, he says that he accepts the proposal, and the possible conditionality is resolved in proven fact 91; he needed to know if eventually my client could help him in case the matter got complicated, which, as we saw, never happens. In other words, [Nombre026] is determined to commit the crime at the very moment the bribe (dádiva) is offered to him, which according to the violated substantive norms is the moment of consummation, and my client could not determine the commission of a crime that HAD ALREADY BEEN CONSUMMATED, according to the majority vote's own considerations. Accepting in principle reveals that [Nombre026] tells them 'I accept, but I have reservations, I must think about it,' which is effectively what the majority vote says happens when he arrives at his house and, seeing the dimension of the case, decides to consult the eventual collaboration of my client; this evidently IS NOT INCITEMENT, therefore the norm of article 47 and 340 on the topic of CONSUMMATION are flagrantly violated by the majority vote. Consequently, if [Nombre026] accepted the proposal made at the same [...], if later he only required eventual help and not to be determined, evidently my client did not incite him, given that Castillo González, cited by the court, points out: 'Castillo González points out that 'determining' implies that the instigator influences the will of the actor (autor) immediately or, put another way, 'causes' or 'gives rise to' in the actor the resolution to commit the crime (Op. cit., p. 499). Regarding the subjective type, the instigator must determine another and do so intentionally; it is a fraudulent action (acción dolosa) and neither negligence (culpa) nor eventual intent (dolo eventual) is applicable (Op cit., p 510). There is improperly spoken of a double intent (doble dolo): i) that the instigator acts fraudulently regarding his own activity as a determiner. ii) Also, the instigator must have intent directed towards the fraudulent consummation by the actor of the punishable act. (op. cit., p.511).' Consequently, if [Nombre026] accepted the proposal made at the same [...], if later he only required eventual help and not to be determined, evidently my client did not incite him, and therefore the appealed resolution incorrectly applies the norms of incitement and the consummation of Improper Bribery." He requests that this claim be accepted and, finding that from the proven facts it follows that [Nombre026] consummated the crime before supposedly meeting with [Nombre012], that he was already determined at the time of the alleged meeting in the case of his client, and that therefore he could not be incited, that it is illicit that he was convicted as an Instigator of the Crime of Aggravated Corruption by Improper Bribery, and that in his place, and based on the list of proven facts, the acquittal judgment that corresponds in law be issued in his favor (cfr. appeal, folios 172831 a 172836). He concludes his brief requesting this Court of Sentence Appeal (Tribunal de Apelación de Sentencia) to revoke the appealed resolution, order the holding of new procedures, or issue an acquittal judgment in the event that the absence of elements to sustain the accusation against his client at trial is evident to this court. He requests that an oral hearing be scheduled to provide information.

IV.- THE APPEAL OF ATTORNEY RAFAEL ENRIQUE GAIRAUD SALAZAR IS RESOLVED.- In view of what has been resolved regarding the appeal of Dr. [Nombre012] in the preceding Recital (Considerando), it is unnecessary to issue a pronouncement regarding the appeal of his defender, Attorney Rafael Enrique Gairaud Salazar, since his claims have already been accepted.

V.- APPEAL OF ATTORNEY CRISTIAN ARGUEDAS ARGUEDAS.- Attorney Arguedas, also a lawyer for Mr. [Nombre012], has expressed his disagreement with the sentence through various writings, the first of which is an appeal for "annulment (casación)" that he filed on August 1, 2011 (cfr. Volume XXXVII, folios 17387 a 17407). The second is an "appeal of sentence (recurso de apelación de sentencia)" (filed on February 10, 2012, cfr. Volume XXXIX, folios 172687 a 172710), through which Attorney Arguedas adapts his previous annulment claims to an appeal of criminal sentence, in accordance with Transitional Provision III of Law No. 8837 of May 3, 2010 ("Creation of the appeal of the sentence, other reforms to the challenge regime and implementation of new oral rules in the criminal process"). He accuses the non-observance of articles 41, 153, and 154 of the Political Constitution; 41, 112, 142, 266, 363, 365, and 367 of the Code of Criminal Procedure; 99, 290, 291 of the Code of Civil Procedure (Código Procesal Civil); for the following reasons: A) Lack of reasoning for the sentence, by virtue of the court refraining from resolving matters related to the civil action filed by the Instituto Costarricense de Electricidad (ICE), because supposedly its civil action for damages lacks an adequate factual basis (it does not have a clear description of the facts attributable to [Nombre012]) that supports the formulated claims, so it refers the interested parties to the civil jurisdictional venue (vía civil) to clarify the ICE's civil claims. There is no legal norm that authorizes the trial court to decide thus, denying access to prompt and complete justice by not resolving a matter submitted to its knowledge and competence. As the trial court cannot supplement the deficiencies of the parties when litigating, the court should have declared the civil lawsuit of the ICE inadmissible, its filing, or its outright rejection, as required by article 291 of the Code of Civil Procedure, with the consequent condemnation of costs. The trial court should have resolved the matter submitted to its jurisdiction and competence and did not do so, nor did it indicate what its legal reasoning or the applicable norms were to reach that decision of not resolving, thus denying [Nombre012]'s access to justice. The Trial court incurred in "citra petita" because it did not resolve a matter submitted to its knowledge. The defect has been unsuccessfully pointed out in all timely procedural stages and moments. B) Lack of reasoning by virtue of the fact that the trial court did not resolve matters related to the civil action filed by the ICE. The trial court says that a particularity of this process is that not all the accused participated in all the accused criminal acts; rather, it proceeds from the intervention of groups of accused in certain acts, a circumstance that obliges one to have to determine and specify each group of accused and third-party civil defendants who could be held jointly and severally liable (obligados solidarios) among themselves, also in relation to certain acts and certain damages that those specific acts may have caused, with which, one reaches the conclusion that there is no single damage for which all the accused and eventually third parties must respond jointly and severally, which is the assumption on which the civil claims were liquidated by the Instituto Costarricense de Electricidad and the Procuraduría General de la República. What could exist are damages caused by the criminal conduct of determined groups of accused, for which the accused of the group and eventually third parties would respond jointly and severally, independently of the eventual damages caused by other groups of accused. The court says that for each group of jointly and severally liable obligors, it was necessary to specify the damages claimed and the claims, which was not done, making in this regard a global estimate and a single request for condemnation, as if all the accused and legal entities were joint and several debtors of a total damage, which is not the case, because what could exist in the specific case are various individualizable damages per group of accused and third parties who could be obligated to repair them. The total damage referred to in the civil actions could not be more than the sum of the individual damages caused by each group of eventual obligors, which for the purposes of the compensation sought, lacks all legal relevance. The court adds that by the civil actors (Procuraduría General de la República and Instituto Costarricense de Electricidad) proceeding to liquidate claims in the manner they did, they leave the Court unable to rule on their substance, and the foregoing is aggravated by the circumstance that no attempt was made to establish the individual damage eventually caused by each group of joint and several debtors, so that, even if the Court decided to do the work for the civil actor parties, it would lack the inputs for it, and if it did, it would be definitively until sentencing that the civil defendants would come to know what the concrete, determined, and specific claims formulated against them were, in which case due process would be violated, which requires that the specification of claims must occur before the conclusion of the preparatory procedure, so that the civilly sued parties could duly exercise the right of defense, which would be violated if the Court ruled on the substance of the claims as they were formulated. That added to the foregoing, it was also not considered that the same Instituto Costarricense de Electricidad that demands the repair of damages and losses in its favor is one of the legal entities that, according to the law, are jointly and severally liable with the civil defendants for their repair. The Court considers that it could not supply the negligence of the party without gravely violating important principles of the civil process such as the objectivity and impartiality of judges, the right of defense, and due process in general, by allowing actions contrary to the legal provisions that regulate the civil action for damages that affect the correct development of the process and the right of defense of the parties, who would not find out what the concrete claim made against them consisted of until the sentence is issued. According to the court, similar questions can be made regarding the civil actions filed by the Procuraduría General de la República, a State body that the Code of Criminal Procedure entrusts with the exercise of the Civil Action for Damages in representation not of the State, but of Collective and Diffuse Interests (article 38 of the Code of Criminal Procedure). The Procuraduría General de la República could not ignore, when formulating the civil action for damages and its claims, that the State and the Instituto Costarricense de Electricidad were also designated by the law as jointly and severally liable to respond for the damages and losses to the collective or diffuse interests, whose compensation is sought. The foregoing because public officials of the Executive Branch (Poder Ejecutivo), the Legislative Branch (Poder Legislativo), and the Instituto Costarricense de Electricidad intervened in the eventual production of the damages and losses. By not establishing a civil action for damages against said entities, the Procuraduría General de la República breached its obligations according to numerals 20 and 21 of its Organic Law.

Thus, the court concludes, the Office of the Attorney General of the Republic (Procuraduría General de la República), in claiming social damage while representing collective and diffuse interests, could not demand total joint and several liability (responsabilidad solidaria) from all the civil defendants, without differentiating, as was appropriate in this case, among the different groups of joint and several debtors (deudores solidarios), having to determine with respect to each group what the specific criminal act attributed was and the damage caused thereby, all of it factually supported by the description of facts. Therefore, the appellant concludes, the formal defects that the trial court points out regarding the rules of legal joint and several liability (solidaridad legal) generate defenselessness, confusion, and result in the mishandling of the civil actions; the court then decides not to resolve the matter, to escape its constitutional obligation to administer justice, denying justice to the defendant [Name012], sending the matter to the civil jurisdiction, when the appropriate course was to hear the matter and declare it without merit, with the corresponding award of costs against the civil plaintiffs. Attorney Arguedas indicates that during the transfer of the civil action, he raised the objection of necessary passive joinder of parties (litis consorcio necesario pasivo), by virtue of the rules of joint and several liability (solidaridad) that govern the present case, but it was never heard; during the intermediate phase, at the preliminary hearing, and in the trial phase, he supported that objection, since it was considered that the civil lawsuits from ICE and the PGR were not well formulated and that there were several subjects who met the procedural conditions to be considered as defendants and who were not being so considered, as for example the case of [Name026], whom ICE never sued, despite being the main perpetrator of the acts attributed to [Name012]. The court should have declared the objection of necessary passive joinder of parties (litis consorcio pasivo) with merit and awarded costs, but never abstain from hearing the matter. C) Lack of reasoning in the judgment on the issue of costs, because the court does not tell us what its grounds for conviction are, the applicable legal norms, and the basis for, first, resolving with no special award of costs. Second, despite the fact that the court recognizes the irremediable defects of the civil lawsuits from ICE and the PGR, and that these are the responsibility of the civil plaintiffs and the Courts of Justice, this representation does not accept nor share what the court intends: to also hold the defense responsible for the mishandling of their opponents' civil actions, given that this is not the defense's responsibility, nor is such a conclusion logical or rational. In any case, the defense of Dr. [Name012] always made these situations known to the different criminal judges, and for this purpose all kinds of objections were raised at all appropriate procedural moments, which is why said argument lacks any kind of reasoning. If the court recognizes that there are insurmountable defects in the lawsuits due to their mishandling by the civil plaintiffs and the complicity of the administration of justice, that can never be attributable to the defense, especially when it is the defense who, at all procedural stages, denounced such circumstances. Third, what was resolved by the court lacks all reasoning, since it does not say what the plausible reasons for litigating were. Not a single reason or justification is found to qualify as plausible for litigating and, therefore, to exempt the civil plaintiffs from costs, and it does not resolve what was requested by the defense, at least in relation to the objections raised at all times. Nor did it analyze the recklessness and bad faith with which ICE and the PGR litigated, filing absurd lawsuits without any evidentiary basis. He requests that this appeal be granted, declaring the civil lawsuits inadmissible and rejecting them on the merits, sentencing the State and the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) to pay legal and procedural costs, in accordance with the current decree on fees. D) Disregard and erroneous interpretation of the Code of Criminal Procedure (Código Procesal Penal), the Code of Civil Procedure (Código Procesal Civil), and violation of the principle of congruence and correlation between the civil lawsuit and judgment. The court sets forth with great legal acumen the grounds that could give rise to various grounds for appeal and cassation by virtue of the violation of the principles of congruence and correlation between civil lawsuit and judgment; however, it fails, and the court falls into citra petita, by not resolving. According to the jurisprudence of the Second Chamber (Sala Segunda), citra petita is incurred in the event of omitting a ruling on points discussed between the parties (cf. No. 618-2010 of 9:15 a.m. on May 20, 2010), as occurs in this matter. Neither the legal representation of ICE nor that of the PGR requested or asked the court not to resolve the present matter submitted for its consideration. Nor did the technical civil representation of Dr. [Name012] do so; rather, all parties were eager for the court to fulfill its constitutional mandate. From articles 99 of the Code of Civil Procedure (Código Procesal Civil), and 365 and 367 of the Code of Criminal Procedure (Código Procesal Penal), it follows that the option of not resolving a matter submitted to the trial court's consideration has no legal basis in civil procedural or criminal procedural legislation. The principle of congruence is violated when the trial court abstains from hearing the merits of the matter and does not resolve it. For this reason, the present appeal must be granted in its entirety. E) Violation of the principle of congruence previously described because the trial court did not hear the merits of the matter and consequently did not grant the claim of [Name012]'s defense. In addition to the lack of reasoning and contradictory ruling, Attorney Arguedas says that he finds no valid legal argument whatsoever for the court not to rule on the merits of the matter. He requested the court to declare the civil actions of ICE and the PGR without merit, given that the damage claimed by the plaintiffs is non-existent. It never occurred, and therefore there is no compensation to which they are entitled. First, regarding ICE's civil action, Attorney Arguedas raised the objections of lack of right, lack of active standing (legitimación activa), lack of cause, among others, which were never resolved or addressed by the Court, given that ICE did not suffer any economic loss, but rather profited and benefited from the contracting of the four hundred thousand cellular lines. To this effect, the appellate court can consult exhibit number 646, and the testimonies of the former Executive Presidents of ICE, [Name052], [Name053], and the ICE Marketing Manager [Name054], who testified at trial and confirmed the profits obtained by ICE by virtue of the contracting with Alcatel and also denied any economic loss for ICE. Likewise, ICE's claim is based on a reduction made by ARESEP to fixed-line rates, to the deposit or guarantee, and the denial of a rate increase, and therefore what ICE seeks has no causal nexus whatsoever with the facts judged by the trial court. One only has to look at exhibit 782 to realize that the ARESEP resolution that lowered cellular rates dates from the year 2003, long before the facts judged by the Court came to public light (October 2004), which makes the lack of causal nexus with the judged facts evident. That is, what caused the ARESEP resolution was not the facts of this case file. In said resolution (exhibit 782), ARESEP, by virtue of its organic Law, reduced rates for the entire cellular and fixed telephony network, and not only for the four hundred thousand lines contracted from Alcatel. If this is so, the appellant asks, what does the rate reduction one year before the facts concerning telephony contracted with Lucent and Ericsson have to do, or what is the causal nexus, with the 2004 facts attributable to Alcatel? The lack of causal nexus between what ICE seeks and the facts judged is evident. Therefore, ICE's claim should have and must be declared without merit on the merits of the matter. On the occasion of the same ARESEP resolution (exhibit 782), contrary to what ICE requested at that time, the supervisory body for public services did not approve a requested increase of four hundred colones, since, as the witnesses [Name055], [Name056], and [Name052] well testified, GSM generated economies of scale, the administration of the cellular network was made cheaper, and that had to be passed on to the final consumer in the form of a decrease in rates. For this reason, what ICE seeks in its civil action lacks any causal nexus with the facts adjudicated in the court regarding the present case file. Finally, in said resolution, ARESEP reduced the guarantee or deposit per cellular line from sixty thousand colones to twelve thousand five hundred colones, all based on the new and improved cost structure that the implementation of the GSM network entailed. However, as testified by the expert contracted by ICE, the guarantee deposit was not ICE's property, but the users'. However, in an unprecedented manner, ICE sought million-dollar compensation for the impossibility of "floating" (jinetear) or capitalizing the interest on the users' money. This, by all accounts, constitutes unjust enrichment (enriquecimiento sin causa), and is therefore illegal, and in any case, has no causal nexus whatsoever with the facts judged by the Court. In summary, the million-dollar and illegal compensation sought by ICE has no causal nexus with the facts judged by the trial court; for this reason, the judging body should have ruled on the merits, declaring ICE's civil action without merit and sentencing ICE for bad faith, for filing a reckless lawsuit, without any causal nexus with the facts judged by the trial court. Despite this, the Court, in direct violation of the Constitution, did not resolve the defense's petition, but rather, fell into citra petita, as it resolved absolutely nothing. On the other hand, regarding the civil lawsuit for social damage filed by the PGR, it suffers the same fate as that of ICE, as it is reckless and based on non-existent claims, which are discussed below. The PGR claims an alleged damage to democracy by virtue of electoral abstentionism, consisting of an absurd formulation, given that electoral abstentionism is a phenomenon that has been occurring in the country since the 1986 elections and has been constantly growing without stopping since then. The University of Costa Rica, at the request of the Supreme Electoral Tribunal (Tribunal Supremo de Elecciones) just after the 2002 elections (two years before the ICE-Alcatel case was even known), conducted the study "Abstentionists in Costa Rica: Who Are They and Why Don't They Vote?" (Abstencionistas en Costa Rica ¿Quiénes son y por que no votan?), by Ciska Raventos Vorst and others (exhibit 771), which maintains and concludes the following: a) The weakening of party loyalties is not exclusive to Costa Rica; b) In a two-party system, party disaffiliation frequently leads to abstention; c) Starting in 1990 and 1994, but particularly in 1998, a new form of abstention becomes evident, motivated rather by discontent with politics and politicians; d) The interpretation of the data leads us to conclude that the Costa Rican political regime, marked by significant stability in party options and voter preferences, has entered a period of change in the last two elections. (It must be considered that this refers to 1998 and 2002, before the facts investigated). The main feature of this change is the discontent with politics and politicians that is expressed in the distancing of voters from the two-party options of the second half of the last century, and not with the present case. Regarding the 2021 elections, the trend was for greater abstentionism. e) In 2002, this group of voters with a high educational level and good socioeconomic condition felt attracted to the PAC's proposal, such that they once again exercised their right in this election. On the other hand, on this occasion, voters of lower socioeconomic levels once again swelled the percentages of abstention, literally compensating for the possible effect of those who abstained in 1998 but returned to the polls in 2002. The foregoing allows us to affirm that, possibly, if a third option had not existed, the levels of abstention would have increased considerably; f) In summary, the increase in electoral abstention in the last two elections seems to be fundamentally linked to political factors, associated with the closing of the political cycle of the second half of the 20th century, in which the main weakened institutions have been the political parties. Despite the proven real data issued by the University of Costa Rica, the PGR bases its calculation of the abstentionism percentage on a news item from the Al Día Newspaper of October 6, 2004, which indicates that abstentionism for the 2006 elections was 64.20/0r which, as is publicly known, never actually occurred, since the abstentionism of 2006 was 34.80/&quot;, for which it suffices to see exhibit 772, which is the certification of electoral results issued by the TSE. In a totally absurd manner, the PGR proposes a methodology to calculate a totally non-existent damage to democracy based on the following. The PGR proposed that since in 2002 an abstentionism of 3l.2% was obtained in 2002 and the figure that the Al Día Newspaper reported when it interviewed 500 people was estimated at 64.2% in 2004, the difference between those figures, which is equal to l33%, or 841,702 voters who would eventually abstain according to the electoral roll, then, that number of voters must be multiplied by the sum of $12.71 which, according to him, is the cost per vote, and which yields the sum of USD $10,697,617, so in this case, with the ICE-ALCATEL case having a responsibility of 33.9% according to a survey of 104 people, the amount imputed to his client is USD $3,626,492. The above calculation is preposterous and absurd for several reasons: 1) the real percentage of abstentionism has no relation whatsoever to the facts judged in this Court (exhibits 771 and 772), given that it was lower than that maintained by the PGR and is due to factors unrelated to the facts judged, as stated previously. 2) The budget for elections is constitutionally defined, and is spent regardless of the voters who go to the polls, whether 1, 10, 300, or the entire electorate vote. Simply put, that investment is part of our decision as a country and democratic identity, so the calculation of $12.71 per voter is by all accounts unfortunate. 3) The weight of 33.9% referring to the responsibility of the ICE-Alcatel case was defined by 104 people from Heredia in a survey, meaning it does not come from a serious study that is extrapolable to the entire national population, just as the PGR's own expert maintains and expert [Name057] did when testifying at trial. 4) A real figure is compared with an evaluation from a survey that is not extrapolable to the population, conducted in the middle of the electoral period, which demonstrates the lack of seriousness and the recklessness of the PGR's civil action. 5) An action on election day is compared with a belief outside the electoral period, but above all, with data from a newspaper issued by a journalist with no knowledge of the matter, not even with real data. 6) There is no logic whatsoever, nor is it justified by any serious study, that national abstentionism is the result of the image of or trial being held against a political leader; for this, in an extreme case, one would have to assume that there had never been electoral abstentionism before 2002 and that 100% of voters attended each election. 100% only attends in the entirety of the electoral roll. [Name012] has no responsibility for the abstentionists or for damage to democracy in this sense. This makes the alleged damage to democracy simply untenable and has no causal nexus whatsoever with the facts judged; for this reason, the Court should have declared it without merit and sentenced the PGR to pay legal and procedural costs. In the same way, the PGR seeks reparation for an untenable and non-existent damage to the national economy. The defense of Dr. [Name012] offered evidence and real data that affirm that the Costa Rican economy suffered no damage from the facts judged, but rather was strengthened year after year. Despite the fact that the PGR proposed an ineffective methodology with no scientific basis, the real data indicate that the national economy suffered no detriment whatsoever, or at least, the facts judged by the Court had no negative impact on national economic development. Exhibit 774, which is a certification issued by the Central Bank of Costa Rica, clearly reflects that the economy from 2001 to 2006 strengthened and increased year after year, and there was no detriment whatsoever. Likewise, exhibit 774 indicates that tourists and tourism income between 2002 and 2006 were always increasing and never deteriorated; that is, the facts judged here had no interference, except to benefit them, therefore there is no causal nexus and an alleged damage to the national economy sought by the PGR with the facts judged here is non-existent. The same exhibit 774 is conclusive in the sense that national exports did not deteriorate due to the facts judged by the Court. Note that the series of years from 2001 to 2006 indicate a sustained increase in national exports; that is, the facts judged here had no impact whatsoever on exports, therefore, the PGR's civil lawsuit had to be declared without merit, with the corresponding award of costs borne by the PGR. Regarding foreign direct investment, exhibit 773 is clear, certifying that the Ministry of Foreign Trade confirms that foreign investment for the years 2001 to 2006 never stopped growing, but rather increased and grew year after year; therefore, the PGR's civil lawsuit had to be declared without merit with the corresponding award of costs borne by the PGR. Therefore, the PGR's civil claims regarding the non-existent damage to democracy and the national economy are by all accounts preposterous and have no evidentiary or legal basis whatsoever, since in reality, neither democracy nor the economy were affected in any way by the facts judged by the trial court regarding the Ice-Alcatel case. For this reason, the Court incurs in citra petita, since it did not resolve what was requested by the civil defense of Dr. [Name012], as the appropriate course is to declare the PGR's civil lawsuit without merit due to the absolute non-existence of any social damage. By virtue of the foregoing, the Court incurs in the defect of incongruence, since it had to resolve the civil actions of both ICE and the PGR, and the only legally possible solution was to declare them without merit and sentence both civil plaintiffs to legal and procedural costs.

Petition. By virtue of the foregoing, he requests the Chamber of Appeals the following:

"a) Grant this appeal against judgment No. 167-201I of three in the afternoon on April twenty-seventh, two thousand eleven, from the Criminal Treasury Court (Tribunal penal de Hacienda) of the Second Judicial Circuit in relation to the civil actions." "b) Declare the inadmissibility of the civil lawsuits filed by both the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General of the Republic (Procuraduría General de la República), sentencing both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." "c) Declare the objection of necessary passive joinder of parties (litis consorcio necesario pasivo) with respect to the civil lawsuits filed by both the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General of the Republic (Procuraduría General de la República), sentencing both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." "d) Grant this appeal by virtue of the lack of reasoning in relation to the grievances previously mentioned and sentence both the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General of the Republic (Procuraduría General de la República) to pay legal and procedural costs in favor of the civil defense of [Name012], by virtue of the reckless, untenable, and bad faith lawsuits." "e) Grant this appeal and reject on the merits the civil lawsuits filed by both the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) and the Office of the Attorney General of the Republic (Procuraduría General de la República), given that the damages claimed by both civil plaintiffs are non-existent, sentencing both civil plaintiffs to pay legal and procedural costs in favor of the civil defense of [Name012]." VI.- THE APPEAL OF ATTORNEY CRISTIAN ARGUEDAS ARGUEDAS IS RESOLVED.- The disagreement of Attorney Cristian Arguedas is valid; the failure to resolve in the judgment what pertains to the civil actions presented constitutes a denial of justice. A) Regarding the compensatory civil action of the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad). In Considerando XV of the contested judgment, the issue of compensatory civil actions is addressed. It indicates that:

«The Compensatory Civil Action filed by the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad) lacks an adequate factual basis to support the founded claims and the possibility of exercising the right of defense and the control of the principle of congruence between the judgment and the compensatory civil action, a defect which, in itself, constitutes an insurmountable obstacle at this stage of the process that prevents this Court from ruling on the merits of said civil action.» (judgment, page 1862).

According to the trial court, article 112 subsection d) of the Code of Criminal Procedure (Código Procesal Penal) (specifically the indication of the grounds on which the action is based) implies that the civil plaintiff must provide a clear, precise, and detailed description of the facts for which the civil action is filed, in order to safeguard the principle of congruence (cf. judgment, pages 1862 to 1873). The court indicates that this ground must be established at the time of formulating the request to be constituted as a civil plaintiff, that it would in no way be admissible for it to be done in the closing arguments of the debate as ICE's representation intended (cf. judgment, page 1873). It adds that the lack of the formal element of the description of facts leads to a compensatory civil action having to be declared inadmissible, in accordance with article 291 of the Code of Civil Procedure (Código Procesal Civil) (cf.

judgment, page 1874), but that:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"<i>When the formal defect is detected at the time of issuing judgment, 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</i>" (judgment, page 1874).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>And further on it adds:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"<i>Faced with such a scenario, the appropriate course is to refrain from issuing a ruling on the merits of the civil action for damages (acción civil resarcitoria) brought by the Instituto Costarricense de Electricidad, whose evident formal defects should obviously have been corrected in earlier stages of the proceeding, and had this not been done, to proceed to a declaration of inadmissibility; however, as already noted, at this stage of the proceeding the only solution the Court finds is to not rule on the merits so that the interested party may pursue its claims in the civil jurisdiction</i>" (judgment, page 1879).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>We consider the trial court's reasoning to be erroneous: even assuming that the very detailed description of the facts that the lower court (a quo) finds lacking constitutes a requirement of the initial brief for joining as a civil claimant (actor civil) (a formalistic criterion not shared by this Chamber), in any event it should have ruled as appropriate on the merits of the matter, since having reached trial, the proceeding cannot be rolled back to precluded stages—admissibility or joinder (constitución)—under the pretext that the civil claimant "supplement its action and correct the defect" (judgment, page 1873) of its joinder application (this is expressly prohibited by Article 179, second paragraph, of the CPP), much less to refer the parties to the civil jurisdiction. <span style='mso-spacerun:yes'> </span>What the trial court ordered constitutes a very clear denial of access to justice, a formalism that has no reasonable basis in Article 112(d) of the CPP and that results from an interpretation of that rule that conflicts with the principle set forth in Article 2 of the CPP, an error that must be corrected. <span style='mso-spacerun:yes'> </span>Also note what will be said in the following section of this recital (considerando). <span style='mso-spacerun:yes'> </span><b><u>B) Regarding the civil action for damages (acción civil resarcitoria) of the Procuraduría General de la República.</u><span style='mso-spacerun:yes'> </span></b>Between pages 1879 and 1892, the trial court adds that it is also not possible to rule on the merits of the civil actions filed by the Instituto Costarricense de Electricidad and by the Procuraduría General de la República, because both made an inadequate formulation of their claims (pretensiones), because "...<i>there is no<span style='mso-spacerun:yes'> </span>single damage for which all the defendants must respond jointly and severally (solidariamente), which is the assumption on which the civil claims were calculated by the Instituto Costarricense de Electricidad and the Procuraduría General de la República.<span style='mso-spacerun:yes'> </span>What could exist are damages caused by the criminal conduct of specific groups of defendants, for which the defendants of the group and potentially third parties would respond jointly and severally, independently of any eventual damages caused by other groups of defendants</i>" (sic, page 1884). <span style='mso-spacerun:yes'> </span>Each group of defendants, the lower court explains, has its own responsibility independent of the other groups, insofar as the accusation (acusación) does not establish participation in all the crimes by all the defendants, the only possibility for joint and several liability of everyone for the entirety of the eventual damage caused. <span style='mso-spacerun:yes'> </span>Furthermore—the trial court says—there are scenarios where the liability of the State or the Instituto Costarricense de Electricidad is ruled out, so it was necessary to specify the damages claimed and the claims (pretensiones) for each group of jointly and severally liable parties, which the civil claimants did not do (cf. judgment, page 1886). <span style='mso-spacerun:yes'> </span>The trial court points out:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"By the civil claimants (Procuraduría General de la República and Instituto Costarricense de Electricidad) proceeding to calculate claims (pretensiones) in the manner they did, they leave the Court unable to rule on the merits thereof. To rule validly, the Court would have to disaggregate the different groups of jointly and severally liable debtors (deudores solidarios),<span style='mso-spacerun:yes'> </span>determine the specific facts attributable to them, and determine the eventual damage that those facts could have caused to the Instituto Costarricense de Electricidad and/or to the collective or diffuse interests (intereses colectivos o difusos) that the Procuraduría General de la República represents. Based on the foregoing, the civil claims could then be assessed, which would have to be modified according to the mentioned factual scenarios, which are their cause (causa). The foregoing is not a task that the Court can undertake, because these are matters whose determination is the exclusive province of the parties and not the Court; were the Court to do so, it would lose its objectivity and impartiality by supplementing (suplir) the deficiencies of the parties and would violate the principle of congruence (principio de congruencia), by ruling beyond what was requested (fuera de lo pedido). The foregoing is aggravated by the circumstance that<span style='mso-spacerun:yes'> </span>no attempt was made to establish the individual damage eventually caused by each group of jointly and severally liable debtors, such that, even if the Court decided to do the work for the civil claimant parties, it would lack the inputs to do so, and to do so would ultimately mean that only in the judgment would the civil defendants (demandados civiles) come to know what the specific, determined, and individualized claims formulated against them were, in which case due process (debido proceso), which requires that the specification of claims occur before the conclusion of the preparatory procedure (procedimiento preparatorio), would be violated so that the civilly demanded parties could properly exercise the right of defense (derecho de defensa), which would be violated if the Court were to rule on the merits of the claims as they were formulated."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Added to the foregoing, it was also not considered that the same Instituto Costarricense de Electricidad that is demanding reparation (reparación) of damages (daños y perjuicios) for its benefit is one of the legal entities (personas jurídicas) that, according to the law, are jointly and severally liable with the civil defendants for its reparation. In other words, had the damages claimed by the Instituto Costarricense de Electricidad been produced, said institution must bear part of those damages, its own public officials (funcionarios públicos) (members of the Board of Directors and others) having intervened in their production. In other words, and in principle, the Instituto Costarricense de Electricidad is a jointly and severally liable debtor for the totality of the damages it claims, for which reason, having borne them entirely, which is equivalent to having fully assumed the joint and several obligation (obligación solidaria), should its existence be proven, the other jointly and severally obligated parties, vis-à-vis the Instituto Costarricense de Electricidad, do not have joint and several liability, but rather the liability that exists among jointly and severally liable debtors internally within the relationship. In this regard, Article 649 of the Civil Code (Código Civil) establishes that <i>"The jointly and severally liable co-debtors (codeudores solidarios) shall divide the debt among themselves into equal parts, unless there is an agreement to the contrary."</i>"</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"As the civil action for damages (acción civil resarcitoria) of the Instituto Costarricense de Electricidad, itself a jointly and severally liable civil party for the damages it claims, is directed against other of the jointly and severally obligated parties, the claim must be limited to the proportional part corresponding to each one, which can only be determined by considering the totality of jointly and severally obligated parties, since the debt is divided into equal parts among all. What is being attempted to be asserted are the actions that a jointly and severally liable co-debtor legally has against the others, and not those of the creditor against the jointly and severally liable debtors. According to Article 693 of the Civil Code, <i>"Every civil obligation confers upon the creditor the right to compel the debtor to the execution of that to which he is obligated."</i><span style='mso-spacerun:yes'> </span>As to the amount of the reparation in joint and several obligations, vis-à-vis another jointly and severally liable party, a debtor is only obligated for the proportional part corresponding to him and not for the totality (Art. 649 of the Civil Code), the foregoing when dealing with private parties. In the case of public officials, each one answers according to the degree of participation in the act and, in that determination, all participants must be taken into account even if they are not parties to the proceeding (Art. 205, subsection 1 of the Ley General de la Administración Pública)."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Thus, the Instituto Costarricense de Electricidad could not claim the totality of the damages caused from the civil defendants, nor did it have a joint and several action against them. In the first place, it had to determine a specific and individualized claim regarding each group of jointly and severally liable debtors, considering the specific and individualized damage that the specific act produced; furthermore, it had to specify, regarding each civil defendant and in the context of each group of jointly and severally liable debtors, the specific claim through a proportional distribution of the claim, in the case of the private defendants, according to Article 649 of the Civil Code, and with respect to the public officials, that specific claim had to consider the degree of participation of each official (Art. 205, subsection 1 of the Ley General de la Administración Pública), all of which, of course, had to have full support in the description of the facts, which had to provide the factual substratum (sustrato fáctico) for the claim, all matters that are exclusively determinable by the civil claimant party (parte actora civil)."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"As already indicated, both in application of the Ley General de la Administración Pública and the Civil Code, the specific determination of the claim had to take into account not only the civil defendants with respect to each group of jointly and severally liable debtors, but the totality of jointly and severally obligated parties according to the law, including those not sued, who must be equally considered in the distribution within the internal relationship of civil liability (responsabilidad civil) in cases of joint and several obligations, because otherwise the other jointly and severally liable debtors would be prejudiced, increasing their liability. The Court again could not supplement the negligence of the party without seriously violating important principles of civil procedure (proceso civil), such as the objectivity and impartiality of judges, the right of defense, and due process in general, by allowing actions contrary to the legal provisions that regulate the civil action for damages (acción civil resarcitoria) that affect the correct development of the proceeding and the right of defense of the parties, who would not learn until the judgment is issued what the specific claim made against them consisted of."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Similar objections can be made to the civil actions filed by the Procuraduría General de la República, a State organ which the Código Procesal Penal (CPP) entrusts with the exercise of the Civil Action for Damages (Acción Civil Resarcitoria) in representation not of the State, but of the Collective and Diffuse Interests (Intereses Colectivos y Difusos) (Article 38 of the Código Procesal Penal). The Procuraduría General de la República could not ignore, when formulating the civil action for damages and its claims, that the State and the Instituto Costarricense de Electricidad were also designated by law as jointly and severally obligated parties to answer for the damages to the collective or diffuse interests whose indemnification (indemnización) is sought. The foregoing because public officials of the Executive Branch (Poder Ejecutivo), the Legislative Branch (Poder Legislativo), and the Instituto Costarricense de Electricidad intervened in the eventual production of the damages. By not bringing a civil action for damages against said entities, the Procuraduría General de la República breached its obligations under Articles 20 and<span style='mso-spacerun:yes'> </span>21 of its Ley Orgánica (Organic Law). According to the first, <i>"The procuradores (attorneys) have, regarding the proceedings in which they intervene before judicial authorities, the powers that correspond to judicial representatives (mandatarios judiciales) under ordinary legislation, with the following restrictions:<span style='mso-spacerun:yes'> </span>they are absolutely prohibited from acquiescing (allanarse), settling (transar), mediating (conciliar), or withdrawing (desistir) from the lawsuits or claims, or submitting the proceedings to the decision of arbitrators,<span style='mso-spacerun:yes'> </span>without the prior written authorization of the Procurador General (procurador general), the Adjunto Procurador General (procurador general adjunto), or the official to whom these delegate.<b> </b>Whatever is done in opposition to the preceding paragraph shall have no value or effect, in or out of court, and the nullity of the proceedings, to which the violation reasonably gives rise, must be declared, even ex officio (de oficio), by the courts of justice."</i> The second cited provision states: <i>"It is forbidden for the servants referred to in the preceding article to fail to bring the lawsuits or claims in which they must intervene as plaintiffs (actores); (…)."</i>"</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Thus, the Procuraduría General de la República, when claiming social harm representing the collective and diffuse interests, could not demand total joint and several liability from all the civil defendants without differentiating, as was appropriate in this case, among the different groups of jointly and severally liable debtors, having to determine for each group what the specific criminal act attributed was and the damage caused thereby, all factually supported by the description of facts. By not proceeding in that manner, but rather through a global claim, as if all the civil defendants had participated in all the crimes charged and without describing in the facts the specific damage caused by the specific act regarding each group of jointly and severally liable debtors, the Court, as with respect to the civil action for damages brought by the Instituto Costarricense de Electricidad, finds itself unable to rule on the merits of the civil actions because to do so it would also have to do the work for the civil claimant party, regarding matters that only concern it, with the corresponding loss of objectivity and violation of due process manifested in the principle of congruence, the principle of inviolability of the defense (principio de inviolabilidad de la defensa), and the principle of impartiality (principio de imparcialidad)."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"The conduct of the civil claimant parties involves deficiencies in the civil actions that, for the stated reasons, prevent the Court from ruling on the merits thereof. The truth is that such defects could have been corrected (subsanado) with a timely and adequate intervention by the courts that acted in the stages prior to the trial (debate), ordering their correction, but by not doing so and by admitting the civil actions in the form in which they were filed, they contributed to the defective procedural activity not being overcome and persisting until this moment when no corrective measure (medida de saneamiento) is possible, and because the procedural activity involves defects of an absolute nature such as the violation of due process and the right of defense, it is not possible to consider said activity corrected (saneada), making applicable the provision in Article 194 of the Código Procesal Civil [...]" </span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"Like the Courts of the preparatory procedure (procedimiento preparatorio) and intermediate procedure (procedimiento intermedio), the civil defendant parties could also have alleged the noted defects in the civil actions for damages in the prior stages and not waited until the closing arguments (conclusiones) of the trial, in which case they also bore their share of responsibility for the defects not being overcome and for the Court's inability to rule on the merits of the allegations, claims, and defenses (excepciones) formulated."</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>"The appropriate course, under the protection of the foregoing, is to omit a ruling on the merits of the civil actions formulated by the Procuraduría General de la República and the Instituto Costarricense de Electricidad and refer them to the civil jurisdiction (vía civil) so that they may resolve their claims." (Judgment, pages 1887 to 1892).</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>Again, the trial court's reasoning is erroneous. Note that it says it cannot go on to supplement the deficiencies or negligence of the civil claimants (actores civiles) without violating its objectivity and impartiality, that it cannot do the work for the civil claimant parties of properly specifying their claims with respect to each civil defendant (demandado civil); however, it chooses to "omit a ruling" and refers them to the civil jurisdiction, so that there they may correct all the supposed errors they made when joining (constituirse) (recall what was said in the previous section of this recital) or when formulating their claims, a decision that truly compromises the objectivity and impartiality of the judge, because it denotes a tendency (or "paternalism," as Licenciado Alejandro Batalla said at the oral hearing) favorable to the civil claimants, which significantly aggrieves the civil defendants, who are deprived of a judgment that defines or resolves the situation promptly and fully until the civil claimants manage to correctly carry out their actions. An injury (agravio) has been caused to the appellant (impugnante) that must be corrected through this channel. <span style='mso-spacerun:yes'> </span><b><u>C) Regarding costs (costas).</u><span style='mso-spacerun:yes'> </span></b>The matter of costs was resolved in Considerando XV, Section D (judgment, pages 1892 to 1893). <span style='mso-spacerun:yes'> </span>The trial court says it rules without a special award of costs (sin especial condenatoria en costas) regarding the civil action, because since a ruling on the merits thereof was omitted, the circumstances for an award of costs (condenatoria en costas) are not present, adding that the civil claimant parties had plausible reasons for litigating. <span style='mso-spacerun:yes'> </span>As claimed by Licenciado Arguedas, on the one hand there is no express explanation of why it is to be supposed that the civil parties had plausible reasons for litigating, a defect that leaves the ruling without foundation; Article 266 of the CPP clearly indicates that the court must issue a reasoned decision (en forma motivada) regarding the payment of procedural and personal costs (costas procesales y personales) when issuing the resolution that terminates the case. <span style='mso-spacerun:yes'> </span>On the other hand, in accordance with what has been previously stated, by having omitted the lower court a ruling on the merits of the civil actions, it committed an error that directly affects the setting of costs (cf. Article 270 of the CPP), causing injury (agravio) to the parties, which must be corrected through this channel. <span style='mso-spacerun:yes'> </span><b><u>D) Conclusion.</u><span style='mso-spacerun:yes'> </span></b>The errors indicated in this recital regarding the civil actions and costs have caused an injury (agravio) to the civil defendant [Name012], and by application of the extensible effect (efecto extensivo), his appeal (recurso) benefits the other civil co-defendants (codemandados civiles), since it is not based on exclusively personal grounds (cf. Article 443 of the CPP). Bear in mind that Article 124 of the Código Procesal Penal warns that "<i>From his intervention in the proceeding, the civilly sued third party (tercero civilmente demandado) shall enjoy all the powers granted to the accused (imputado) for his defense, in what concerns his civil interests (intereses civiles)</i>." As for the correction or amendment that is appropriate in this case, it is not possible for this Chamber to make it directly—as Licenciado Arguedas intends—but rather it is necessary to order a retrial (juicio de reenvío) before the competent criminal court (tribunal penal) so that, with a different composition, it may proceed to a new processing of those matters (civil actions for damages and costs). The correction must occur in a retrial—in this same criminal channel (vía penal)—, with the safeguards of the adversarial process (contradictorio) to preserve the principle of procedural equality (principio de igualdad procesal) (Article 6 of the Código Procesal Penal) and to allow any of the civil parties who might potentially feel aggrieved (agraviadas) the opportunity to challenge (impugnar) what is ordered through the remedy of appeal (recurso de apelación). <span style='mso-spacerun:yes'> </span>The trial on the civil consequences and costs must be conducted according to the rules set forth in Article 359 of the CPP, and on the basis that the act charged by the civil and criminal claimants (actores civiles y penal) against the civil co-defendants was not proven at trial. <span style='mso-spacerun:yes'> </span>For all the reasons stated, the appeal (recurso de apelación) filed by Licenciado Cristian Arguedas is granted (se declara con lugar), the judgment is annulled in its civil aspect, insofar as it ordered omitting a ruling regarding the substantive law (derecho de fondo) at issue in relation to the civil actions brought by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as well as the ruling regarding costs, and the case is remanded (reenvío) to the competent court for the new processing of those matters.</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination:none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span><b>VII.-</b><span style='mso-spacerun:yes'> </span><b><u>THE APPEAL (RECURSO DE APELACIÓN) OF [Name001] FILED BY LICENCIADA YAMURA VALENCIANO, PUBLIC DEFENDER (DEFENSORA PÚBLICA), IS RESOLVED</u></b><u>.-</u><span style='mso-spacerun:yes'> </span><b>1.<span style='mso-spacerun:yes'> </span>Regarding the crime of improper bribery (cohecho impropio): </b>Of the issues proposed by Licenciada Yamura Valenciano Jiménez, on behalf of Mr. [Name001],<span style='mso-spacerun:yes'> </span>she has expressed her disagreement with the judgment through various writings, the first of which is a remedy of cassation (recurso de casación) that she filed on August 30, 2011 (cf. Volume XXXVII, folios 17685 to 17738), and subsequently in an appeal by conversion (recurso de apelación por conversión).<span style='mso-spacerun:yes'> </span>This Chamber proceeds to resolve the grounds that, by themselves, entail the nullity (nulidad) of the judgment and the acquittal (absolutoria) of the defendant <b>for the crime of improper bribery in the modality of aggravated corruption (corrupción agravada).<span style='mso-spacerun:yes'> </span><u>Section One.- Defects that by themselves entail the nullity of all that has been resolved</u></b>. <b><u>A.</u> Statute of limitations (prescripción) of the case. In the first ground of Licenciada Valenciano, a violation of due process (debido proceso) is alleged because the case has prescribed (prescrito)</b>. She indicates that she raised the preliminary objection (excepción) of statute of limitations in various instances, and it was rejected.<span style='mso-spacerun:yes'> </span>The reason given by the Trial Court (Tribunal de Mérito) to dismiss the statute of limitations was based on the declaration of complex processing of the case that occurred on March 3, 2006, the judges considering that by virtue of that, the reduction of the statute of limitations term could not apply, by virtue of the provision of the third paragraph of Article 376 of the procedural legislation (legislación de rito).<span style='mso-spacerun:yes'> </span>As the defense explains, procedural acts (actos procesales) are governed by the law in force at the time they occur and take effect according to that law.

According to Attorney Valenciano, Article 376 of the CPP does not afford the declaration of complex processing any possibility of making its effects retroactive, nor does it allow for the interruption of the statute of limitations. <b>She is correct in her claim. The initial statute of limitations for the criminal action, in the case of Mr. [Nombre001], is five years for the crime of improper bribery in the form of aggravated corruption, which, according to Articles 340 and 342, subsection l, carries a maximum penalty of five years. Therefore, five years is the full statute of limitations period that had to be calculated, until one of the acts occurred that interrupt the statute of limitations and reduce the term by half. The first act interrupting the statute of limitations occurred on October 8, 2004, the date on which the defendant appeared to give his statement regarding the facts; thus, from that day forward, the period for calculating the statute of limitations changed from five years to two and a half years, or what is the same, thirty months. These thirty months were completed on April 8, 2007, without any of the grounds for interruption provided for in Article 33 of the Code of Criminal Procedure or the grounds for suspension established in Article 34 occurring in the interim. Consequently, by the time the preliminary hearing was scheduled for the first time, that is, on September 10, 2007, the criminal action against [Nombre001] for the crime of improper bribery had already prescribed, and with it, the State's authority to prosecute him criminally. The reasoning supporting this conclusion has already been expressed when resolving Dr. [Nombre012]'s appeal, to which this Court refers to avoid unnecessary reiterations. It is therefore appropriate to declare the case against [Nombre001] prescribed and to acquit him of the crime of improper bribery in the form of aggravated corruption for which he was being charged. <u>B.</u> Defects regarding the determination of the fact and the assessment of the evidence to determine the indicia that led to the conviction for the crime of improper bribery. </b>In the <b>Second ground</b> <b>of Attorney Yamura Valenciano's Appeal on behalf of [Nombre001]</b>, a violation of the rules of sound criticism was alleged, specifically the rules of logic, the principle of derivation, concerning the crime of improper bribery. The applicable rules indicated are Articles 1, 6, 9, 142, 361, 363, and 369 of the Code of Criminal Procedure. The appellant argues that it is taken as proven that her client accepted a promise of a gift from the company ALCATEL in exchange for performing the necessary actions to ensure that said company was awarded the abbreviated process 1-2001, within the scope of his duties as advisor to the presidency and coordinator of the interdisciplinary commission responsible for the project called 400K. To reach this condemning conclusion, the Trial Court gave importance to four evidentiary elements. On the one hand, a REPRETEL video from 3:59 a.m. on January 29, 2004; a lunch invitation, as described in evidence number 81; document 8 of evidence number 396 (folios 17, 19, and 21); the ICE internal memo PE-0102-P of February 22, 2002, evidence No. 75, folios 324 and 325; and, finally, evidence 686, which contains the so-called "[Nombre058]'s action proposal." According to [Nombre001]'s defense, from these evidentiary elements, it is impossible to derive the condemning criterion expressed in the judgment, in the sense that [Nombre001] accepted a promise of a gift from [Nombre015] and [Nombre035] at the end of the year 2000 and the beginning of the year 2001. <b>She is correct in her claim. </b>Even though the act is considered prescribed, and for this reason it would be unnecessary to continue any discussion regarding the crime of improper bribery attributed to [Nombre001], this Chamber considers that the determination of the improper bribery in its form of aggravated corruption attributed to him cannot be derived from the evidentiary elements taken into account by the majority of the Trial Court. This Chamber considers that the indicia the judgment attempted to construct do not reach the necessary relevance and specific weight to be able to attribute criminal liability to [Nombre001]. In this regard, it must first be noted that the action proposal designed by the political scientist [Nombre058] was not an invitation to commit corruption crimes and promote the illicit activity of public officials. As of 1999, it was not possible to define the course that the issue of cellular market opening in Costa Rica would follow. [Nombre058] designed a strategy that essentially meant the need to reach important sectors in public decision-making and convince them of the need to proceed along that path. In other words, Mr. [Nombre058] was pointing to the need to promote approaches that would facilitate the path of a potential opening in the telecommunications sector, but his plan did not encompass bribery and the promotion of corruption of public officials. In 1999, indeed, Mr. [Nombre001] was not an official of the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad). [Nombre001]'s arrival at the institution occurred with the objective of unblocking certain processes that, at that moment, were indispensable for the smooth running of the ICE, and where [Nombre001]'s expertise, due to his prior experience, would be of great help in those tasks. The decision for his entry into the ICE was the result of Mr. [Nombre052]'s management. At least here, there is no influence from Alcatel and [Nombre015] to introduce a key person for their interests into the ICE structure. The judgment itself, at folio 15894 (folio 1452 of the judgment, Volume XXXIII), accepts that [Nombre001] began working at the ICE in October 2000 as the Senior Administrative Executive Assistant in the Executive Presidency, a designation formalized starting January 1, 2001. Among other activities assigned to him were reading and studying documents, advising and making recommendations on matters entrusted to him, and representing the ICE in certain forums before governmental and non-governmental bodies. The ruling refers to the coordination work assigned to [Nombre001] in the abbreviated process 1-2002 for leasing the 400 thousand GSM cell lines (folio 1452). The designation was communicated by the Executive Presidency to the different Strategic Business Units (UENs) on February 22, 2002 (evidence 75, folio 324). At folio 15896, the majority vote states that the person who appointed [Nombre001] was none other than [Nombre052], who confirmed in his statement that the official's arrival was to help "recover institutional peace," severely affected by the events that occurred with the "electric combo." Mr. [Nombre052] stated that he met [Nombre001] at the National University, in the School of Planning, and after hearing about his skills and characteristics, decided he was the person he was looking for those pacification tasks, which he indeed fulfilled (folio 15896, folio 1454 of the judgment, Volume XXXIII). Regarding coordination in the concession process for the 400 thousand cell lines, [Nombre001] was responsible for managing communication with the various groups so they could present their technical criteria, and was also very active in the procedures carried out inside and outside the institution, such as before the Comptroller General of the Republic (Contraloría General de la República). As the condemning ruling considers, [Nombre001] was a person who lacked experience in telecommunications matters, and the decision by Mr. [Nombre052] to hire him is surprising; however, it goes no further than pointing out eventual negligence in his designation. In this regard, it takes the opinion of Ms. [Nombre059] (folios 15896 to 15897, folios 1454 and 1455 of the judgment, Volume XXXIII), who alludes to that lack of technical and legal experience, which, however, he overcame over time. In general, the judgment strings together elements to consider [Nombre001] a key figure in the process of defining the 400 thousand cell phones project, an activity in which he engaged intensely, as several witnesses indicated in the ruling made known, such as Messrs. [Nombre060] and [Nombre061], who had contact with him and knew him at that time, but also Mr. [Nombre062], Associate Director General of Alcatel, and [Nombre063], Director of the Development and Project Execution Unit of the ICE, place him in these tasks (folios 1455 and 1456 of the judgment). From what is stated in the ruling, it is deduced that at a certain point, Mr. [Nombre001]'s main activity consisted of supporting and coordinating the activities related to the 400 thousand cell lines project. The court's thesis consists of accusing [Nombre001] of having accepted a promise of a gift, between the end of 2000 and the beginning of 2001. The promise supposedly came from [Nombre015] and [Nombre035], with the objective that he would perform actions within the scope of his duties as advisor to the Executive Presidency of the ICE, and as the person in charge of executing the 400 thousand lines project, to favor Alcatel in this matter. The majority vote accepts that this conclusion must be produced indirectly, as it involves illicit activities, conceived in clandestinity, and therefore a conclusion about them must come from the concatenation of indicia. This is how the first element assessed by the Court is reached, that is, the Repretel video from 3:59 a.m. on January 29, 2004, where [Nombre001] accepted having received money from Alcatel, that he would assume the consequences of his illicit behavior, and that it was all due to a spiritual weakness on his part (folio 1457 of the judgment). Defense attorney Yamura Valenciano disputes this indicium. She maintains the thesis that her client only accepted having received a sum of money, but that this in no way means the acceptance of a specific criminal classification, concretely, bribery, and that rather it was illicit enrichment, which would already be prescribed. Indeed, Mr. [Nombre001]'s spontaneous statement does not provide certainty about what he committed in terms of a criminal offense; he only affirms having received a sum of money he considered an illegitimate act for which he would assume consequences. According to the court's thesis, it was not necessary for [Nombre001] to qualify his action from a criminal-legal perspective, that it was a journalistic interview that must be assumed and interpreted judicially. It is thus that it begins to interweave that statement by [Nombre001] with the so-called evidence no. 396, which seems to be closely related to 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. <b>Regarding the notes included in evidence numbered 396</b>, identified as document 8, a folios 17, 19, and 21, evidence to which the court states it gives full credibility, Attorney Valenciano criticizes that the right of defense has been violated since the dubious authenticity of these was argued, given that they lacked any element allowing one to know if they were sent or received, and also that they were unsigned and without reference to who prepared them. This was alleged, but the claim was rejected by the Tribunal. According to the defense's thesis, these documents do not show that [Nombre001] received any promise of a gift from [Nombre015]; they only refer to the fact that [Nombre001]'s appointment was made by [Nombre052], and that [Nombre001]'s intervention arose within the ICE itself to unblock project execution. What the note actually shows is that an initial approach is made with an official surnamed [Nombre061], with whom little progress is made, and that they require a change of interlocutor. The person signing the note says they know [Nombre001], a person recently appointed by [Nombre052], and that this person could be Alcatel's interlocutor in the negotiations aimed at the new cellular expansions. In fact, the note alludes to certain characteristics of [Nombre001], describing him as "more political" and that he "will not be contaminated by the influences affecting the central administration." Rather, these statements give the idea that conditions exist for maintaining more fluid communication with him. In a later note, it is added that they managed to make [Nombre001] "lead the baton" in the negotiation, now hoping for a "more flexible position from the negotiating group." The reading of this evidence does not generate in this Chamber the understanding that a gift was promised to [Nombre001]; rather, the idea arises that they have a person more inclined to dialogue and to flexibilize positions in the face of a need also understood as political, due to the great market pressure ahead of an electoral year. Similarly, a note from November 29, 2000, denotes enthusiasm, as progress had been made in getting the ICE to consider other alternatives for immediate needs. Here, the position of the person signing these notes goes in the sense of showing a positive perspective regarding the progress in conversations on the topic of the ICE's opening, but it also alludes to the eventual refusal of the Comptroller's Office to accept Mr. [Nombre052]'s proposal for an eventual direct purchase, and that progress was rather being made towards a bidding process (cf. fls. 1458, 1459). The direct purchase, it must be said, was an objective set by Mr. [Nombre052], and he directed his efforts there, clashing, however, with the Comptroller's refusal, as will be seen later. The undersigned of the notes was analyzing the progress of the opening process, the setbacks, the difficulties, and [Nombre001]'s role in the progress. A derivation from this, for example, that [Nombre001] had accepted a gift cannot be proposed, only that there was allusion to positive information about the institutional climate favorable to cellular market opening. This is how the court proceeds to include in its reasoning a lunch invitation from [Nombre015] to [Nombre001], coincidentally on November 29th, the same day as one of the notes just alluded to. The judges accept that a lunch means nothing, but combine it with the fact that these invitations are also offered to [Nombre026] and [Nombre021], as if that were the modus operandi for offering gifts, when the truth is there is evidence that these lunches were also offered to other ICE officials who have not been accused of any crime. But the majority court concentrates on [Nombre001], and also on [Nombre004], and deduces from these courtesies an illicit closeness, an institutional advantage supported by a remunerative promise, which would ultimately benefit Alcatel in the award of the 400 thousand cell lines. The judicial discourse aims to see these elements not as isolated circumstances, or at least disconnected from a willingness of Alcatel to influence the entire cellular opening process and ensure its preponderance when intervening in the award of the 400 thousand lines. Arriving at this moment in the argumentation, they proceed to study the internal memo PE-010-P of February 22, 2002, sent by the Executive Presidency of the ICE to the Strategic Business Units (UENs), informing them that for the abbreviated contracting process for 400 thousand GSM lines, a commission had been appointed, coordinated by [Nombre001], who would be in charge of the study and award process for the project. In this same line, it is reported that the commission's objective is the study of offers, answering clarifications, evaluation in all aspects, award recommendation, consultation, and resolution of possible appeals, all with the goal of having the contract duly countersigned. The commission would report directly to a high-level body composed of [Nombre052], [Nombre061], and [Nombre027]. Because these notes are supposedly received by [Nombre015] and representatives of Alcatel Cit in France, they infer that [Nombre015] was aware of what was happening internally at the ICE regarding the 400 thousand lines project, and of his pleasure in the appointment of [Nombre001] as coordinator of the commission. However, that pleasure, generally or specifically, is not derived from that evidence, even though it can be admitted that he could logically have been satisfied with the path the whole process was taking, for which [Nombre001] was not solely responsible, but rather it was a concatenation of other conjunctural, institutional, and even opportune factors that were not controlled by [Nombre001], even if he had wanted to control them. Thus, it can be concluded, at least preliminarily, that the accusation is based on the idea that [Nombre001] was made an offer of a gift as the person responsible for the award process for the 400 thousand lines, which he is, at least as of February 2001, and there is no clarity on which acts were expected of [Nombre001], beyond obtaining some advantageous position in a process not controlled by [Nombre001], and which was under the supervision and control, as well as the decision, of a higher-level body. The dissenting vote alludes to this circumstance, regarding the indeterminacy of the acts expected from [Nombre001], which puts the defense in a difficult position and hinders its work, as it is unknown what [Nombre001] did that could have positively impacted Alcatel's expectations. In contrast to the thesis of the dissenting vote, the two main supporting bases of the majority vote's argument go in the direction of considering [Nombre001] an Alcatel asset whom they managed to place within the ICE, and who then managed to become an architect of this multinational's business expectations, ultimately achieving the award of the four hundred thousand lines. The truth is that [Nombre001]'s designation did not originate from Alcatel's management. His designation came from a decision-making process in which Alcatel did not intervene, however pleased it might have been with the appointment of a person who was "more political" and less "contaminated" by the vices inherent to public administration. On the other hand, the effective award did not depend on [Nombre001] either. His coordination and communication exchange work was aimed at creating conditions for making a decision that was ultimately not his responsibility. The documents signed by "[Nombre091]," or that at least bear this indication, also do not show that [Nombre001] received instructions from Alcatel or that he placed his services in favor of the multinational's expectations. The truth is that these documents, lacking established linkage and authorship, do not permit proof of what the Tribunal wishes to derive from them, nor can the concatenation with the video or the memos addressed to the UENs lead one to think that [Nombre001] received a specific promise from Alcatel. The video may allow deriving the receipt of a gift for an accomplished act, after the effective award, if one wishes to extract a criminal-legal consequence from what was stated by the accused, or, at least, the acceptance of illicit enrichment, but it is not indirect evidence of a promise of a gift, however much one might wish to think so given the decidedly extraordinary conditions of that public acceptance of illegitimate conduct on the part of [Nombre001] to Repretel journalists. Decidedly, these funds were not received for legitimate acts, as [Nombre001] accepted, but the information did not contextualize why they were received, or in exchange for what they were received. Without that prior promise, the bribery charge collapses under its own weight and only leaves subsidiary offenses that the Public Ministry could well have charged. The defense attorney's complaint about the prosecutor's accusatory work and the court's effort to string together indicia leads her to discuss the logical problems of the ruling, which prevent imputing bribery conduct to both [Nombre001] and [Nombre004], and the ample margin existing to acquit them based on *in dubio pro reo*, at least for not having clarity on which illicit actions they were being prosecuted for, and specifically which acts were carried out in relation to Alcatel's expectations. The judges of the majority vote accept that the final decision in the award process was not the responsibility of [Nombre001], but insist that for [Nombre015] and [Nombre035] it was important to have a key person on the coordination committee, since they already had [Nombre027], [Nombre026], and [Nombre004] in key positions. The conviction of [Nombre027] and [Nombre064] in their respective abbreviated proceedings gave the court certainty of this chess game designed by Alcatel to ensure success in this award process. To this they add the document prepared by the external consultant Mr. [Nombre058] (folio 1463 of the judgment), called the "action proposal," which alludes to the need for approaching people from different sides, be they business, religious, and, above all, political, spanning the entire ideological spectrum, as well as deputies, former Presidents of the Republic, pre-candidates for the Presidency of the Republic, the political directory of the National Liberation Party, and even the advice of a former president. According to the majority ruling, this would have influenced the considerations of [Nombre015], as the representative of Alcatel Costa Rica, in carrying out the plan to approach [Nombre001], [Nombre004], and the others implicated in the case. However, the consultant's document did not promote the creation of a network of bribes and corruption, but rather gave advice on how to achieve a consensus favorable to a telephone opening solution aimed at using the GSM network. The strategic plan designed by this political scientist, aimed at preparing Alcatel's participation in the Costa Rican cellular market, did not imply committing crimes, nor does it state that public officials must be corrupted with gifts to achieve their participation and consent. Mr. [Nombre058]'s document, as defense attorney Yamura Valenciano states, is not an element that can justify the conclusion that it is the basis of the corrupt criminal plan, much less the source of support for the eventual illicit behavior of Alcatel's directors. In "Considering V" of the Judgment, regarding some background of the case, it was taken into account that Alcatel was a company that was outside the direct purchases of telephone services made from Ericsson and Lucent Technologies, companies already positioned in the national market thanks to their distribution of TDMA networks, dominant until that moment. According to the majority tribunal (folios 974 and 975 of the Proven Facts - Considering V -, Volume XXXII), this state of affairs did not suit Alcatel, so its directors, among them [Nombre015], planned a strategy of approaches to change that situation. On January 26, 1998, via a memo addressed to the Executive Presidency of the 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 commitment that these lines would not be used to meet demand needs, an aspect that was corrected later in a Council session in April 1998. Regarding the issue of opening the ICE to GSM (PCS) lines, the Board of Directors made the decision not to venture into them until the matter was included in the Telecommunications Law (Session No.

5042 of February 2, 1999). Here, there are already indications that venturing into this field was being evaluated since 1999, with the reservation, of course, that it would not be done until the relevant law contemplated this new field of development. Meanwhile, other decisions of the ICE Board of Directors were aimed at arranging direct purchases of additional cellular lines from Lucent Technologies and Ericsson, in equal parts, which represented a natural move, considering that it was said TDMA technology that dominated the cellular telephone market at that time. Then, through another agreement, it was decided to increase by 10 thousand lines of that type with Ericsson for the metropolitan area. The move was explainable given the great demand for cellular lines and the prevailing technology at that time, it must be stressed. Thus, it was decided, subsequently, to make a direct purchase of 100 thousand cellular lines from the two existing suppliers at the time (Lucent and Ericsson) under the protection of Article 79.1 of the General Regulation of Administrative Procurement (folio 976 and 977 of the judgment). According to the report of the ruling, Alcatel did not agree with this course that events had taken; it considered that the direct purchase was not justified, since the articles they wished to acquire were not exclusive. On May 23, 2000, during Session No. 5186, Alcatel Cit made a formal presentation to the ICE Board of Directors on the benefits and advantages of GSM technology. As a result of this presentation, the Board asked ICETEL to prepare and present a feasibility study, including a business plan, within a period of three calendar months, to allow the governing body to make a decision on the matter. On May 30, 2000, in Board of Directors Session No. 5187, after some statements by the members, it was decided that it was not the time to make direct contracts with suppliers other than those already established or to migrate to another technology, but a period of sixty calendar days was established to carry out a feasibility study, a business plan, and a draft tender document on GSM-PCS technology, to determine the viability of the technology change and the expansion of telephone technology suppliers for upcoming contracts (number 24, folios 977 and 978 of the judgment, Volume XXXII). Up to this point, it could not be said that the ICE was not interested in migrating to another technology, or that it discarded any possibility of introducing Alcatel among the cellular technology offerors in Costa Rica. This Chamber considers, as defense attorney Yamura Valenciano rightly weighs, that these steps are directed at creating decision-making conditions that would allow migration to another technology, with all the necessary technical studies to make a reasoned decision in that regard. Thus, on June 13, 2000, in Board of Directors Session No. 5191, it was agreed to give a period of 45 calendar days to the Deputy Management of ICETEL to present a comparative study to continue learning about the procurement of GSM-type cellular lines, leaving what was decided in Session No. 5182 of May 9 in suspense, and it was ordered that the requested report be presented on July 30, 2000. The need for an ICE decision on the issue of the demand for cellular lines that existed in the country at that time is noted, and on the framework or horizon of possibilities that was opening up at that moment, which was almost restricted to continuing growth in TDMA lines or migrating to GSM technology, which promised aggregated services and more favorable prices. The ICE's decision seemed to be defined by this demand factor, but also by the situation that was arising with the available technologies. That is why the benchmarking studies (for comparing installation costs), feasibility studies, and business proposals were essential elements for a correct decision according to the country's needs, addressing the evident public interest in this matter. This can be read from the decisions of the ICE Board of Directors that are outlined. However, the judgment interprets that this entire scenario was adverse for Alcatel, that decisions were not taken with sufficient speed, and that [Nombre015] and [Nombre035] needed to ensure Alcatel's preponderance, since the actions of this Board were not directed at accelerating decision-making. From this, the judges derive the need of these defendants to corrupt public officials, directly or indirectly linked to the decision, to achieve their objective of getting the ICE to open the bidding process for GSM cellular lines and for the final result to favor Alcatel (cf. number 28 of folio 978 of the judgment, Volume XXXII). On July 11, 2000, in ICE Board of Directors Session No. 5199, it can be verified that the decisions the ICE was making were inspired by the search for the best technology, at the best price, in order to meet the growing demand for cellular lines afflicting the country, through the most suitable procurement system in accordance with the Costa Rican legal system. By virtue of these guiding lines, it was decided to form a commission composed of [Nombre065] and [Nombre004], so that with the support of an external consultant, the legal viability of using a special abbreviated procurement procedure for the supplying companies that would allow the acquisition of mobile technology equipment in the shortest time could be analyzed (number 29, from folio 979 of the judgment, Volume XXXII). <u>The events, then, begin to head towards the acquisition of GSM technology telephone services</u>. The ICE Board of Directors, in Session No. 5249, in accordance with the recommendations of the technical area, ordered the implementation of this technology in the 1800 MHZ band, and as indicated by the UEN for mobile telephony, which had explored the technical feasibility of 400 thousand mobile telephony solutions based on existing fixed central offices from Alcatel, Siemens, Nortel, Ericsson, and Lucent. From this, the idea can be derived that the decision for GSM technology did not arise from pressure from Alcatel, but was an institutional objective, based on technical decisions and business recommendations that allowed observing GSM technology as an opportunity to meet the existing demand and the expected growth of the Costa Rican market. The ICE Legal Advisory, through document T-15547 ALCO 1187 of December 5, 2000, and taking into account adaptability, technological convergence, and public interest, considered the direct procurement appropriate. The ICE Board of Directors reasoned, in turn, that GSM technology, being an open standard, allowed the participation of several offerors, which would positively impact the reduction of infrastructure costs and the cost of final terminals for consumers. Without a doubt, these were considerations that benefited the country, the consumers, and in any case, the business and growth expectations of the ICE itself. There was also the endorsement of an internal ICE department, as was the Legal Advisory, which considered the direct procurement process appropriate. In the cited Session No. 5249, it was decided to request permission from the Office of the Comptroller General of the Republic to expand the central offices through the direct procurement procedure, and Mr. [Nombre052] signed the notes addressed to the oversight body. Finally, the Comptroller's Office would not endorse the direct procurement system and would opt for an abbreviated competitive procedure. The note signed by Lic. Manuel Martínez Sequeira, Manager of the Division of Legal Advisory and Management of the Office of the Comptroller General of the Republic, dated January 23, 2001, was made known to the ICE Board of Directors in Session No. 5260 of January 25, 2001. In that note, the "direct procurement" procedure is qualified as non-viable, but for the outlined reasons of public interest, the oversight entity authorized the ICE to implement an "<u>abbreviated competitive procedure</u>" (cf. judgment, folio 980, Volume XXXII). In the referred session itself, No. 5260, the Board of Directors agreed to instruct the Deputy Management of Telecommunications to immediately publish in all national newspapers, with the objective of inviting potential offerors of this equipment, which implied not only the existing competitors, some of them already ICE suppliers, but all those that faithfully conformed to the protocols of GSM technology. At folio 981 of the judgment, what was discussed and analyzed in Extraordinary Session No. 5271 can be read. The spirit of said session was oriented towards assessing the problems in meeting the existing demand for cellular telephone lines, where with the planned moves to acquire more lines, only the existing demand would be met, with a shortage of more than two thousand six hundred fifty applications remaining. The Board of Directors took into account the donation made by Alcatel, which was received on May 5, 1998, GSM technology equipment that provided the opportunity to meet the existing demand and do so with favorable and reasonable operating prices and conditions for the institution (folio 981 of Volume XXXII of the judgment). It was observed that this was an ideal way to mitigate the demand for lines, and it was agreed to accept the proposal of the UEN for Mobile Services for the expansion of the GSM cellular system by 160 thousand lines, through the approval of direct procurement number 108792 with the company Alcatel CIT as the equipment manufacturer and Arrendadora Interfin S.A. as the leasing company for the same (folio 981 of the judgment, number 38, Volume XXXII). Curiously, on March 20, 2001, when the approval of the minutes of session No. 5271 was put to a vote, the convicted [Nombre027] requested that it be repealed with respect to the expansion of the 160 thousand cellular lines by purchase from the company Alcatel. [Nombre027]'s motion was submitted for discussion and was rejected. Voting against [Nombre027]'s proposal were [Nombre052], [Nombre026], [Nombre066], and [Nombre004], while the directors [Nombre027], [Nombre067], and [Nombre055] voted in favor, whereby minute 5271 became final. The path would be open, then, to work on the acquisition of GSM technology lines, and it would be done through the abbreviated process suggested by the Office of the Comptroller General of the Republic. Now, regarding the abbreviated process 1-2001, defense attorney Yamura Valenciano points out shortcomings in the assessment made by the Trial Court, and stresses that one of them consists of not having thoroughly studied the bidding process. At folio 1170 of the judgment, it is stated that the defenses of the various defendants consider the award procedure lawful by virtue of the fact that the expert [Nombre089] so determined, since all the legally ordered steps to achieve it were fulfilled; furthermore, Ericsson's proposal presented non-compliances and defects that led to its exclusion. <u>They insist, the favoring of Alcatel does not occur, according to the judges, due to the observance or not of the described procedure</u>, but in prior phases, such as when they indicate that [Nombre001] carries out preparatory acts or when the vote takes place in the Board of Directors, where directors [Nombre027], [Nombre004], and [Nombre026] participate (folio 1171 of the judgment). In a word, for the Trial Court, even if the stages of publication of the tender document were satisfied, Alcatel was an offeror, Ericsson was disqualified, the latter company's appeal was dismissed, and the Comptroller's Office endorsed the contract, it cannot be considered - according to the trial judgment - that there were no corrupting and corrupt actions (folio 1171 of the judgment). According to the defense attorney, the judges make mentions of procedure 1-2001 but there is no serious study of it. If it had been done, says Licda. Valenciano, especially in view of the appeals filed, the Trial Court would have realized that the decision process was accompanied by technical studies that reflected that all aspects of importance were taken into account; the procedure followed is described thus: "…<i>The tender document was prepared publicly, after convening the entire telecommunications industry with a presence in the country or their duly accredited representatives. Workshops were held at the San José Palacio hotel where the tender document was assembled with its technical, financial, technological, and legal requirements and the procedure for receiving offers. This led to the articulation of the bidding document that was finally published. The purpose of doing it this way was to achieve a kind of consensus between the industry and the ICE that would allow a high-level technological proposal and, at the same time, comply with the deadlines imposed by the Comptroller's Office and the provisions of the Law of Administrative Procurement, since if the tender document was made jointly, the stage of objections to it would be significantly reduced and thereby the times of the process itself.</i>" The witness Licda. Mónica Valerio De Ford was clear in stating that: <i>"…The 400K was a very large leasing contract, for GSM. A complex contract of civil works and another for equipment leasing, it was a very open process from the beginning, that even before publishing the tender document, all companies were invited. Meetings were held by the ICE with ICE teams, all companies brought their teams to participate."</i> The bidding document did not carry Alcatel's "DNA," but was the result of transparent, public work discussed extensively with companies like Lucent and Ericsson that were already ICE suppliers, but Nortel and Motorola also participated, apart from Alcatel. The process reflected, as [Nombre056] proposed, an open procedure with participation from all interested companies. Ms. [Nombre059] expressed on June 14, 2010, in addition to what was proposed by [Nombre056], that the process took into account the ICE's budgetary restrictions, so it was a process where there was analysis of the various elements involved, where companies such as Alcatel, Nortel, Ericsson, Nokia, Siemens, and Lucent made their contributions, in meetings that took place in the ICE auditorium, but also in a capital city Hotel, which she could not determine if it was the Corobicí or the San José Palacio. As a result of these findings, the defense maintains that it was not feasible to think that Alcatel made an offering to the defendant [Nombre001] just at the end of the year 2000, since Alcatel's entry into GSM technology was already given, and the bidding itself was not an idea of the ICE, nor of [Nombre001], but of the Comptroller's Office. Furthermore, at that moment, there could also be no talk of the 400 thousand lines project nor a procurement process, since this was something that arose from the Comptroller's Office itself on January 23, 2001. Therefore, it was not possible for a gift to be offered to him in the year 2000 so that he would take effective actions to achieve a successful procurement that was not known at that time. From the documentary evidence, as stated by Licda. Valenciano, and from the judicial reasoning, it is possible to construct a logical fallacy incurred by the judges when determining fact number 132. It establishes that it was [Nombre001], together with other ICE officials, who achieved the opening of the public tender for the purchase of cellular telephony and the award of the contract for the 400 thousand GSM lines in favor of Alcatel, and that it was precisely for this reason that the gift was given to him. However, and as she explains, it was not that [Nombre001] "achieved" it, nor that the public tender for the purchase of cellular telephony was opened, which was a decision of the Comptroller's Office, without ICE participation, since the latter preferred to proceed with the direct purchase. Nor could it be said, the appellant stresses, that [Nombre001] achieved that the bidding be awarded to Alcatel, since said award recommendation was the product of an extensive study of the offers that were presented only by two companies: Alcatel and Ericsson, which were evaluated legally, technically, and financially by officials of specialized ICE units, who were not under [Nombre001]'s influence, this last aspect which stands out, especially, due to the multiple technical, legal, and financial opportunity considerations, which were not within [Nombre001]'s expertise, and where he could not exercise influence or control. That is why the judgment's annotations on the circumstantial basis for attributing these facts to [Nombre001] collapse under their own weight, and due to the solid content of the evidence available on the abbreviated procedure under analysis, which allows deriving the legal and technical correctness for its award. If one makes the journey that this Chamber has made, following the points raised in "Considerando V" of the ruling under examination, where the context of the entire award of the GSM lines is expressed, it can be observed, without a doubt, that the decision was not easy. There were many reasons to continue with the growth of the TDMA platform, and continue with its technical limitations, or to open the national market to a technology that was beginning to be used everywhere in the world, with great advantages and value-added services, which also allowed promptly addressing the needs for new cellular lines that Costa Ricans required. The trial judgment tried to present a scenario where Alcatel felt excluded from all direct purchase processes and urged decisions that would allow the opening to the new technology it could supply. The idea is sustained that to streamline the decision process, it was necessary to have key figures who would support the orientation towards this path, and who, furthermore, would favor Alcatel. In other words, the trial judgment attempted to read the various sessions of the Board of Directors, finding in them the "symptom" of a corrupt decision, which would end up benefiting an offeror who had not acted transparently and who used corrupting strategies to ensure the successful result of the process. However, the reading of these sessions and their agreements allows seeing a Board of Directors that wanted to satisfy the public interest, meet the existing demand, and prepare the country for the challenges that were already looming on the horizon. Before making any decision, technical studies, comparative studies, business strategy designs, and explorations on the positioning of technologies are requested, with the objective of being able to know if the decision to steer the country towards GSM technology and displace the until then dominant TDMA technology was convenient and in accordance with the public interest. This Chamber can perceive that there was interest in such migration and the technical studies endorsed that path. It is not lost from sight that Alcatel had donated equipment and some GSM lines that the ICE accepted, all under the condition of not using them to alleviate the demand for telephone lines. Nevertheless, Alcatel presents the advantages of this technology in an exhibition to the Board of Directors, and this generates a positive reaction. Technical and subsequently benchmarking studies are requested with the objective of analyzing the technical opportunity and the need for technological change. All of this allows estimating that by May 9, 2000, there was, at least in gestation, an interest in this new technology. Everything would later lead to a proposed bidding document that was inspired by the opening to the new GSM technology, and with technical and legal framework studies that endorsed the steps the ICE was taking in that direction. The Trial Court, in its majority vote, did not detect this trend, and considered that by May 23, 2000, there was no clear declaration from the ICE in that sense, when as has been seen, the Board of Directors itself assessed the public interest in adopting a technology that would satisfy demand, be capable of maintaining a wide number of offerors, and also have advantages for the consuming public. All of this was already being said in May 2000, so there is an important contradiction in the ruling at folio 1117, where the Trial Court, in its majority vote, considers that "…<i>regardless of the economic advantages of the proposal presented by Alcatel in said session, or the benefits of GSM technology-, the truth is that the described agreement of the institution's board allows establishing that even by May 23, 2000, there was no clear or certain determination by said body to venture into GSM technology. It is observed that, on one hand, the collegiate body was ordering a market study with a business plan so that the board could make a decision. On the other hand, it ordered that such a study be prepared within a period of 3 calendar months, and, finally, it established that said analysis should be accompanied by a proposal for a public bidding document, which was contradictory because if the decision to opt for GSM technology had not yet been made, it was not understandable how the board, simultaneously, established that it should be accompanied by the tender document for the public tender.</i> (judgment, folio 1117, volume XXXII). The truth is that there were several levels of decision: on the one hand, the satisfaction of the existing demand for new telephone lines, and the decision towards a technology that would allow better serving the public interest in quality telephone communications. The Board of Directors sessions show these two levels very clearly, and it is observed how the steps of the decision were accompanied by technical studies and business and opportunity opinions that were pertinent. The majority vote says there was a contradiction, since even though a decision had not been made to opt for GSM technology, they do not understand why the Board requests to accompany the tender document for the public tender. This was understandable if it is observed that initially, the decision was to buy cellular lines, in equal quantities, from the two existing suppliers, within the framework of the equipment available at the time. This necessarily entailed continuing with the direct purchase processes that the ICE had already carried out before. The opening of a bidding document was precisely to allow the participation of several offerors, not just Alcatel, in said process.

In fact, those competitors that had experience in providing cellular technology services that would allow ICE to offer quality at a good price and with promptness would intervene. As defense attorney Yamura Valenciano correctly postulates in the oral defense of her challenge, what suited Alcatel most was the direct purchase and not the abbreviated procedure. In the direct purchase, the acquisition of cellular solutions would be distributed proportionally among each of the bidders, and Alcatel would certainly have participated there. Meanwhile, the abbreviated procedure had several uncontrollable circumstances for Alcatel: the number of bidders, the economic and technical offers, and the evident possibility of not emerging victorious. Meanwhile, ICE's moves, through Mr. [Nombre052], were heading toward the direct purchase of technology from five competitors. This outcome would not ultimately be endorsed by the Contraloría, which, weighing the public interest that had been set forth by ICE's own Board of Directors, would indicate the appropriateness of the abbreviated procedure. The judgment itself clearly underlines that Alcatel was denied the possibility of participating in the direct purchase of the original 100,000 cellular lines, and that a public tender would be held for the acquisition of GSM technology (folio 1119 of the judgment, volume XXXII). The relevant technical studies were requested in order to proceed with the tender, and a period of 60 days was set to obtain said studies. The judges of the majority vote prefer to lean toward viewing the path toward the acquisition of GSM technology as uncertain, or at least unclear, and not as an immediate decision. However, they accept that it was conditioned upon the preparation of technical studies. The position of [Nombre027] and [Nombre004] is cited to the effect that they insisted on the direct purchase of more TDMA technology cellular lines, which would have to be carried out with the suppliers already present at ICE, that is, Lucent and Ericsson. Alcatel was not and could not be involved here. On folio 1122 of the judgment, it is clearly noted not only that the judges dismissed the consistency of ICE's decision to move toward GSM technology, but also that there was a double discourse within the Board, since, while the advantages of the multi-provider concept that GSM technology offered were being evaluated, direct hirings continued, the judges disregarding the two decision-making planes that have been set forth above, and which are justified by ICE's dependence on the TDMA infrastructure that had been dominant in the country up to that date. The same judges also underline that the benchmarking studies indicated a drop in prices for cellular interconnections, so the path toward a technology opening was not nonsensical but rather a natural step that needed to be evaluated, and one that ICE's directors were clearly on. Now then, the judges highlight the campaign carried out by Alcatel and other suppliers in the media and the movements to try to get the Board to make a decision on the issue of opening. From this they deduce that [Nombre015] and [Nombre035] understood that Alcatel's commercial interests were in danger and that its possibilities for communication with ICE were reduced due to the tense atmosphere that had been unleashed. Starting from folio 1123, the majority court analyzes the award of the 400,000 cellular lines. Defense attorney Yamura Valenciano argues that the judges could have seen preparatory acts by [Nombre001] to favor Alcatel in said procedure, but that said acts are never described. It is not known if they reproach [Nombre001] for having transferred confidential information to Alcatel, or for receiving proposals outside of the allowed timeframe, or for some illegitimate or unlawful act. According to the appellant, from a reading of the bidding procedure, it can be clearly deduced that the procedure was transparent, with broad participation from the bidders, with contributions from all, from Siemens, Lucent, Ericsson, and even Alcatel. Siemens subsequently decided not to participate due to conditions inherent to the tender, but there was an identical opportunity to contribute to the process. But the defense attorney argues that the judges saw fraudulent intent (dolo) in all of this. The procedure was carried out following the procedures established by law. Only two bidders submitted proposals to this procedure: Consorcio Ericsson II and the joint bid between Alcatel CIT and the Banco Centroamericano de Integración Económica (BCIE). Ericsson's bid was disqualified due to technical defects, while the Alcatel-BCIE bid met the requirements established in the tender specifications (cartel), so it was unanimously agreed to award the abbreviated competitive procedure (sentencia, folio 1127, Volume XXXII). Mr. [Nombre052] declared at trial, it is underlined in the ruling, that ICE's technical bodies all recommended awarding the contract to Alcatel, adding furthermore that the award of the 400,000 lines resolved a large part of the demand for mobile lines, and that the negotiation was positive and justified the need to migrate to GSM technology to provide more and better services to users of new technologies, a point on which former directors [Nombre055] and [Nombre067] also agreed (folio 1127, volume XXXII of the judgment). Ericsson's appeal before the Contraloría, regarding its disqualification, was dismissed, as can be seen in Exhibit No. 640, which contains a certified copy of the entire Abbreviated Competitive Procedure No. 01-2001. The contract signed for the execution of the lease with purchase option for the 400,000 GSM technology lines in the 1800 Mhz band exceeded 149 million dollars, and was endorsed by the Contraloría General de la República (see official communication No. 2543 DI-AA-698, folios 341 a 3446, Volume IX (Exhibit 10), an endorsement that took place at the beginning of March 2002 (folio 1128 of the judgment, Volume XXXII). It is clear then that these two pillars upon which the judgment finds [Nombre001] guilty lack support: on one hand, the promise of a gift collapses because the migration was decided well before the date on which the accusation places the promise of a gift to [Nombre001], and because it is easily verifiable, as this Chamber has done, that the decision for the abbreviated procedure is a recommendation from the Contraloría General de la República, which directly departs from the will of Mr. [Nombre052], who wanted to follow a different path through the direct purchase procedure, which would have directly benefited Alcatel by including it among the suppliers that would have provided, in proportional quantity, a specific number of GSM technology cellular lines, without the uncertainty created by a bidding process in which there were no guarantees of winning. **Grounds of Disagreement by [Nombre001] Regarding the Bribery (Cohecho). Conclusions: Regarding proven fact 28 and its comparison with proven fact number 35**, the appellant indicates that there is a contradiction described as follows: "…*since in the first, the court indicated that [Nombre015] and [Nombre035] determined that it was necessary to resort to offering gifts for ICE to initiate the bidding process, but in fact 35 it finds it proven that it was the oversight body (ente contralor) that authorized the abbreviated competitive procedure, that is, the tender. So, how can it have been proven that Alcatel offered [Nombre001] money to manage to open the competition, if the same judgment indicates that the competition was opened by the Contraloría*…" The appellant refers to a series of studies, which are found in the copy of the file for tender 1-2001:

• Legal study of the bids, folios 1939 a 1907. It is dated August 16, 2001.

• Study and recommendation for awarding abbreviated procedure 1-2001, from the UEN Mobile Services, folios 2037 a 2026.

• Financial study, folios 2025 a 2006.

• Technical study from the infrastructure and energy network planning group, dated August 10, 2001, folios 1954 a 1953.

• Technical study from the generalities, radio, and services group dated August 9, 2001, folios 1952 1950.

• Technical study from the switching group, dated August 8, 2001, folios 1949 a 1940.

It is underlined that Ericsson's bid was declared unviable for containing at least 32 incurable instances of non-compliance with the tender specifications (cartel). It was then that Alcatel's economic bid was opened, after which new studies were conducted, now with the bid price in hand, and it was equally determined that it was advantageous for ICE to contract with Alcatel. The instrument (figura) through which the project was processed was the lease with purchase option. This was financed by the Banco Centroamericano de Integración Económica, which was the owner of the equipment to be installed, with Alcatel being responsible for the operation and maintenance of the network and for the training of ICE personnel. Therefore, and the appellant insists here, it was the responsible area that made the proposal to award the tender in a well-founded manner, and the Board of Directors on August 28, 2001, in session No. 5326, awarded Alcatel the contract for the 400,000 cellular lines. The company Ericsson appealed that decision before the Contraloría on October 14, 2001, an appeal that was dismissed on December 19, 2011, with the endorsement (refrendo) of the contract occurring on March 7, 2002. She thus concludes that the Court reaches an incorrect conclusion about the criminal participation of [Nombre001], not only because it does not indicate what the "necessary actions" were that he undertook to achieve the opening of the competition and the awarding of the contract to Alcatel, but also because those processes occurred, and there is evidence of this, through lawful procedures fully endorsed by ICE's technical departments and by the Contraloría itself, the latter being the entity that made the determination to conduct a bidding procedure such as the one that ultimately took place. Regarding the conduct of improper bribery (cohecho impropio), the appellant raises the following: "…*The acts accused as improper bribery against [Nombre001] range from number 133 to 187, of which only five attempt, in an imprecise manner, to describe the imputed conduct. The rest of the numbers were dedicated by the prosecution to describing the destination of the money that [Nombre001] received. This corresponds to the fact that a large part of the testimonial evidence brought to the debate was to determine if [Nombre001] spent the money on cows, cars, or motorcycles. The court did the same*…" According to the defense, her strategy was to indicate that so much interest should not be paid to the money, as its existence and payment could make [Nombre001]'s conduct fit into a different criminal act, but rather to the defects in the accusation, and the impossibility that the facts it contained could be sustained, and that they rather recounted a different story, suggesting that the money could have been delivered to [Nombre001] for reasons unrelated to the award of the 400,000 GSM cellular lines. She insists that there was a forcing of the evidence to make it fit within the terms of the accusation, without attending to the commitments of the principle of derivation (principio de derivación), sound criticism (sana crítica), and due process (debido proceso). The appellant argues that it is considered proven that her client accepted a promise of a gift from the company ALCATEL in exchange for carrying out the necessary actions so that said company would be awarded the abbreviated process 1-2001, within the framework of his functions as advisor to the presidency and coordinator of the interdisciplinary commission in charge of the project called "400K". This Chamber agrees with defense attorney Valenciano, in the sense that [Nombre001]'s participation in the award of the abbreviated procedure was neither important nor transcendental. Everything indicates that the award coincided with objective elements that contributed to backing Alcatel's technical and economic proposal, a company which received the approval of ICE's technical bodies, in addition to being the only company that ended up being considered upon Ericsson's disqualification due to the technical defects that affected its proposal. The abbreviated procedure did not have Alcatel's DNA, which is to say that the configuration of the requirements was not made taking into account what Alcatel could or wanted to offer, but rather that the drafting process was open and participatory, with the collaboration of all potential bidders, all with the objective of configuring the best proposal, taking into account ICE's technological and financial needs, the latter institution wishing to attend, in the best possible way, to the overriding public interest in obtaining not only the telephone lines to meet existing and future demand, but also at a reasonable cost for ICE and the citizens. It is for this reason that the linking of [Nombre001] through the indicators (indicios) pointed out by the Majority Court does not allow the aspects that constitute the criminal type of improper bribery (cohecho impropio) to be considered settled, and permits considering that the determination of the facts against him lacks the solidity and consistency required by a conviction (sentencia condenatoria), and this would give grounds to annul the ruling. **2. Regarding the crime of simulation fraud (fraude de simulación).** In the **third ground of the appeal by attorney Yamura Valenciano on behalf of [Nombre001], a violation of the rules of sound criticism (sana crítica) is alleged, specifically the rules of logic, the principle of derivation (principio de derivación), regarding the crime of simulation fraud (fraude de simulación)**. The appellant maintains that the court considered it proven that the defendant [Nombre001] fraudulently transferred two vehicles, plates [Valor037] and [Valor038], to the corporation Sociedad Anónima Dominical Antigua, with the purpose of removing them from the possible consequences of a criminal proceeding against him, alerted to this by the news circulating nationally. The accusation was based on the following facts:

- The emergence into the public light of news that mentioned Servicios Notariales QC as one of the companies that deposited money on behalf of Alcatel and the knowledge of [Nombre001]. - The obtaining by [Nombre029] and [Nombre001] of the corporation Dominical Antigua. - The appearance of [Nombre029] and [Nombre001] before the notary public [Nombre028] on September 30, 2004, for the sale of three vehicles to the corporation Dominical Antigua.

Regarding the crime of Simulation Fraud (Fraude de Simulación), the appellant starts from the assertion that not all people are assiduous in finding out about events of interest via newspapers and television news. However, the truth is that in the case of the events related to the famous "CAJA-FISCHEL" case, the dissemination of what happened there, of the flow of money that paid gifts (dádivas) and other royalties to those involved in the matters investigated there, occupied the entire country for quite some time, disseminating details that were commented on by all citizens. It is not possible to follow the defense's reasoning to the effect that [Nombre001]'s actions were decontextualized from those news events and without any fraudulent intent (dolo) to simulate contracts to conceal pecuniary benefits he had obtained illegitimately. It is thus from facts 183 and 184 that it is extracted that the Court considers it proven that it was in mid-2004 that news about corrupt businesses carried out by officials of the Caja Costarricense del Seguro Social was disclosed in the media. As a result, both [Nombre001] and [Nombre029], both with the last name [Nombre068], learned of the investigations and the involvement of Servicios Notariales QC S.A. as part of the criminal scheme to pay the gifts (dádivas) in the CAJA-FISCHEL case. With the objective of keeping these assets safe from the eventual investigations that would be initiated, [Nombre001] agreed with his sister to divert these assets through simulated legal acts. The defense questions this factual derivation because it was not demonstrated, or at least there is no argument demonstrating, that [Nombre001] was a person assiduous in reading national newspapers or watching the country's television news, but the truth is that this circumstance is not central to preventing the judicial inference. It is not necessary to suppose that only citizens who read newspapers and watch television news knew the details of the journalistic investigations and later of the Public Ministry on the CAJA-Fischel matter. The scale of the case, the type of people involved, and the national significance of the matter must have been a subject of commentary in the circle close and immediate to [Nombre001], who was also ready to acknowledge illegitimate acts to the media, to which attorney Yamura Valenciano believes Mr. [Nombre001] was not so partial. The idea underlying the court's criterion is not that all people learn of events through the news, but also through the comments that these events provoked, in the circles close to Mr. [Nombre001]. Therefore, it could be understood that the court elaborated an argument that included [Nombre001], not as a citizen who reads newspapers and watches television news, but as a person who was informed of what was happening, and who was part of events that had the entire country waiting for the course of the investigations. The publications alluded to in Exhibit number 682, in effect, refer to details of the investigations carried out and that involved the characters supposedly involved in the illicit acts of that case (pp. 1548 of the judgment). There are good possibilities that [Nombre001] knew of these news items, not necessarily through the news programs and newspapers, but through the gossip and general commentary they were provoking, and that he knew could turn against him by virtue of the payment channel for the sums that he himself later accepted as illegitimate before a television news program of the company Repretel. It is very possible that this happened in this way, and caused the defendant to imagine the possibility that his criminality might be discovered, and this motivated him to fraudulently transfer two vehicles. For its part, from Fact 185, the following is established: "185) Approximately on September 20, 2004, the defendant's sister, [Nombre029], located Mr. [Nombre069], who was her acquaintance and owned an accounting business, asking him to get her three corporations, making him believe it was for some family procedures. Mr. [Nombre069] told her that he would contact Attorney [Nombre071], who had corporations for sale." In this regard, attorney Valenciano maintains: "…*This fact, as the court considered it proven, does not derive from the statement of [Nombre069], the only one who could have confirmed it. Starting from page 390 of the judgment, the testimony of [Nombre069] is recorded, given on August 12, 2010, who, in what is of interest, indicated: "Around 2004 I was called for an interview, you yourself were the one who asked me if I knew Mrs. [Nombre029], if [Nombre029] had visited me, and I told you that yes, she visited me back in 2004, she visited me to greet me, besides she needed the services of a law firm and I recommended Attorney [Nombre071]. 1 ...] I don't remember having informed the Prosecutor's Office that [Nombre029] asked me to tell her who sold corporations." Upon reading this testimony, it can be corroborated that the witness never said that it was around September 20, 2004, that [Nombre029] visited him at his office; he also did not say that she had asked him for three corporations to carry out a family procedure, but rather indicated that Mrs. [Nombre029] asked him to recommend a law office, so he recommended Attorney [Nombre071]. Therefore, it is evident that what the court considered proven does not derive from the witness's statement. In the intellectual reasoning (fundamentación intelectiva), the court does not point out another means of proof from which it would have obtained the necessary confirmation of this point of the accusation, which is indispensable to have considered it proven*…" However, this Chamber does derive from this testimony that [Nombre029] was indeed seeking a law firm and legal advice for procedures, which, even though it was not said they were of a family nature, were indeed of her interest. Furthermore, in effect, Mrs. [Nombre029] visited the office of Attorney [Nombre071], who had available anonymous corporations (sociedades anónimas) that were later seen involved in the legal act or business under investigation. Regarding facts 186 and 187, the following is established in the ruling: "*186) On September 30 of that year, Attorney [Nombre071] delivered for sale to [Nombre069] three corporations named Terra Toscana S.A., legal ID 3-101-376929, Dominical Antigua S.A., legal ID 3-101-381503, and Camino Medieval S.A., legal ID 3-101-381113, each with book number one of Shareholder Registry, General Assembly Minutes, Board of Directors Minutes, Journal, Ledger, and Inventory and Balances, original articles of incorporation, legal ID, and duly endorsed shares*." 187) That same day, [Name029], by common agreement with the co-defendant [Name001], had the documents of the aforementioned companies brought to the office of [Name069], and once they were in their possession, they immediately appeared before Attorney [Name028] and in the act simulated, through deed number [Value020], the sales contract for three vehicles: two that were in the name of the accused [Name001], plate [Value037], Volkswagen brand, 1999 model, for an amount of four million colones (04,000,000) and plate [Value038], Toyota brand, 2002 model, for an amount of five million colones (05,000,000); and the other in the name of the company MCS Moriah, plate [Value033], Suzuki brand, 2003 model, for an amount of four million colones (04,000,000), all documentarily transferred to Mrs. [Name070] in her capacity as representative of the company Dominical Antigua S.A. Regarding these facts, attorney Valenciano disputes the possibility of deriving that, in effect, this happened as described in the judgment. However, [Name071] himself confirms that this sale of the corporations did, in effect, take place, and that a receipt was prepared that [Name069] had signed. Regarding this signature, the appellant says there is a situation that the court does not clarify, about whether or not it was actually executed by [Name069], since he did not recognize his signature stamped on the document on folio 89, coming from evidence number 404. However, the mentioned discrepancy, which so concerns the defense attorney, can be assessed following the rules of sound criticism, and it can be considered that although it is not confirmed with a graphology test, there is at least an indication that said document existed and that it confirms, at least in principle, that the companies were delivered to [Name069], and with this, the statement of [Name071] about the delivery of the companies would be confirmed, which would later be involved in the dubious transfers that were investigated. The testimony of [Name069], as the trial court itself recognizes, was fearful and not very fluid, but its shortcomings were filled with the testimony of [Name071] and [Name070]. Mr. [Name071]'s professional firm, like other legal offices, prepares and registers corporations that are available for eventual clients who may need them, and they are sold with duly legalized books and with shares endorsed in blank. The alleged "lack of memory" of the witness [Name069], who said he did not recognize his signature on the receipt on folio 89, of evidence item 404, is shown to the other witnesses, who recognize the document with the office logo, the one that was customarily used and which is the receipt and the invoice for collection, and they recognize that of the witness, as it is the same signature customarily used in other office documents. In fact, Mr. [Name071] recalled that days after the sale of the companies, he spoke with [Name069] by phone, who indicated that a client was going to come by the office to pick up [Name070]'s signature to transfer a vehicle or properties and that there was no problem with [Name070] signing (folio 1550 of the judgment). She equally questions, calling them "mere presumptions," the derivations the Trial Court makes in fact number 187, where it is taken as proven that [Name029] and [Name001] had the documents of the companies brought to the notary's office of attorney [Name028], to proceed with the sales reflected in deed number [Value020] of the Protocol of the aforementioned professional. Attorney Valenciano insists that there is no evidence whatsoever demonstrating that [Name029] and [Name001] had acquired the companies Terra Toscana, Camino Medieval, or Dominical Antigua. For the defense attorney, only the testimony of attorney [Name028] could have elucidated whether the defendants had in their possession the books of the aforementioned companies. She claims the Public Ministry's lack of investigation regarding whether the vehicles plates [Value037], [Value039], and [Value038] were de facto possessed by [Name001], which could have determined if the transfer was real or simulated. However, there are elements assessed by the trial court that could provide an important indication of said de facto possession. Observe that [Name070], according to her testimony, has never owned a vehicle, and even though she was the representative of the company acquiring the vehicles, it is surprising that she acquires them if she has never owned a vehicle. Mrs. [Name070], furthermore, was the secretary of attorney [Name071]'s office, following the firm's custom of integrating the boards of directors of the companies for sale with members of the firm, in this case with [Name070], his assistant (folio 1546 of the judgment). It is true that she participates in the legal act as the representative of the legal entity "Dominical Antigua," but it is logical that if the company acquires these vehicles, it would be Mrs. [Name070] who is in charge of controlling, maintaining, and even driving the mentioned motor vehicles. It is true that the acquisition of these vehicles via the corporation is an act permitted by the legal system, in principle, however, it is strange that the representative of the legal entity would not dispose of these assets, at the very least to attend to the maintenance needs of the mentioned motor vehicles, or transfer them to a place where they were properly parked. In this conclusion, there is no confusion of legal terms or a requirement incompatible with the legal nature of the position of representative of the corporation; it is simply a plausible reflection on the participation of Mrs. [Name070] in these transfers and the legal reason and sense of the acquisition of the motor vehicles. It is true that Mrs. [Name070]'s testimony is not the proof that the transfer was rigged and illicit; this derives from the integral assessment of the available indications, which the trial court divided into two moments for its study. On the one hand, the acquisition of the corporations and, then, the legal act of the transfer, which demonstrates that the entire legal scheme only hides a simulated contract that did not have the objective of transferring anything but rather of hiding assets acquired with money that [Name001] himself qualified as illegitimate. Furthermore, the attitude of the defendant himself, of acquiring the company and rushing to make the transfers, reveals, as the Court rightly underlines, his objective of carrying out a fictitious transfer to protect those assets from the action of justice. It is for this reason, also, that the logical fallacy claimed by the defense attorney does not occur. According to her, a circumstance cum hoc ergo propter hoc occurs, according to which there would be a cause-effect condition that is nonexistent. However, in this case, there is an important circumstantial relationship, which allows the deduction that the events that occurred in the Caja-Fischel case led [Name001] and his sister to seek 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 of the connection between the two events, and there is sufficient factual basis to conclude as the trial court does regarding the elements that constitute the crime of Simulation Fraud. It is for the foregoing that the ground raised by the defense attorney against the judgment cannot be granted. On the issue of fixing the value of the transferred assets that constitute the Simulation Fraud and the justification for the penalty for the mentioned crime. The fourth ground raised by attorney Valenciado on behalf of the accused [Name001] has to do with the setting of the value exceeding ten base salaries that the Court makes for the transferred assets that constitute the object of the simulated purchase-sale contract that has been the object of the accusation. The issue has to do with fact number 187: "That same day, [Name029], by common agreement with the co-defendant [Name001], had the documents of the aforementioned companies brought to the office of [Name069], and once they were in their possession, they immediately appeared before Attorney [Name028] and in the act simulated, through deed number [Value020], the sales contract for three vehicles: two that were in the name of the accused [Name001], plate [Value037], Volkswagen brand, 1999 model, for an amount of four million colones (44,000,000) and plate [Value038], Toyota brand, 2002 model, for an amount of five million colones (05,000,000); and the other in the name of the company MCS Moriah, plate [Value033], Suzuki brand, 2003 model, for an amount of four million colones (4,000,000), all documentarily transferred to Mrs. [Name070] in her capacity as representative of the company Dominical Antigua S.A." The appellant indicates the following in this regard: "…The Penal Code establishes, in Article 218, that the penalty indicated in Article 216 shall be imposed, depending on the amount, on whoever, to the detriment of another and to obtain an undue benefit, made a simulated contract. Article 216 establishes that the penalty to be imposed shall be from two months to three years, if the amount defrauded does not exceed ten times the base salary, and from six months to ten years if it exceeds said amount. In such a way that, from the penalty imposed for the crime of simulation fraud—ten years in prison—it is assumed that the court considered that [Name001]'s conduct fits the second paragraph of Article 216, that is, that the amount defrauded exceeds ten times the base salary, even though the judgment did not analyze, explain, or justify it in the legal grounds. The judgment held as proven that the defendant [Name001] simulated a sales contract for two vehicles to the company Dominical Antigua S.A., plate [Value037] Volkswagen brand and plate [Value038], Toyota brand. The deed stated that the value of the vehicles was four million and five million colones, respectively." The appellant is correct in her arguments. The Court does not explain from where it derived the value of the transferred vehicles: on the one hand, whether it extracts it from the value indicated in the deed or if it used some other parameter to estimate whether the amount defrauded exceeds the amount of ten base salaries. There is no expert opinion in this regard or a prudential determination that could have served as a basis for a discussion on this topic, of great importance for setting the penalty ranges to which the accused could be subject in case of being found guilty of the illicit act of Simulation Fraud. The defense attorney Valenciano must also be given reason on the issue of the determination of the penalty for the illicit act of Simulation Fraud for the accused [Name001], to which she dedicates the sixth ground of her appeal. The Court did not give sufficient reasons to be able to consider as proportional, suitable, and necessary the amount of ten years in prison that it imposed on the defendant, the highest extreme of the penalty provided for this criminality. After indicating what is related to the capacity for culpability and the awareness of unlawfulness, as well as that the facts are typical, unlawful, and culpable, and recapitulating the proven facts, the court proceeds, in a scant paragraph, to attempt the reasoning of the penalty (cfr. folios 1553 and 1554 of the judgment). The peculiarity upon which it is of interest for the defense to draw attention is that this paragraph is exactly the same one the court used for the justification of the penalty for the defendants [Name001] and [Name004] in the case of aggravated corruption, which reveals the court's total lack of interest in expressing the reasoning that led it to impose, it is insisted, the maximum extreme of the penalty provided for simulation fraud…" She transcribes the passages of the judgment where this weighing is done, and analyzes that the only thing changed in the weighing for both defendants was the name. As already explained, the court prefers reasonings of negative special prevention, but without giving any true reason that, in accordance with the principles of the Rule of Law, allows the judgment on the penalty established for the wrong committed to be considered substantiated. There is no way for the defendant's defense and for this Chamber to control the true reasons for the imposition of this penalty, and what the basis was for an individualization of the quantum of the custodial sentence at its highest extreme. It is therefore appropriate to annul the judgment regarding the Simulation Fraud for which [Name001] was convicted, solely, regarding the determination of the extreme from which the penalty would be fixed in the relationship existing between Article 218 and 216 of the Penal Code regarding the value of the amount defrauded, as well as the penalty imposed. The referral of the case is ordered so that these two extremes may be discussed: the amount defrauded shall be fixed in accordance with procedural rules and, according to this amount, the minimum and maximum extreme of the penalty to be imposed shall be established, and a justification of the penalty shall be carried out in accordance with constitutional requirements and Article 71 of the Penal Code. The judgment on the Simulation Fraud remains unscathed in all other aspects. 3. On the violation of due process due to the introduction of illegitimate evidence not admitted in the hearing. Attorney Yamura Valenciano explains that the Court never established, in a manner consistent with the rules for incorporating evidence into the process, what the date of the REPRETEL video was, in which [Name001] had supposedly accepted having received money from ALCATEL. She recounts the procedural legislation norms that regulate the incorporation of evidence in the Costa Rican criminal process, and establishes that, in violation of what is stipulated there, the Trial Court subtly establishes a date and time for the video that was never legally defined. In fact, the defense did not exercise control over this aspect until this appellate venue. As the defense establishes, this action by the Court puts her in a state of defenselessness, since she was not aware of the evidence, and could not exercise control over it nor could she oppose it. She transcribes the section of the judgment where the defect is committed: "Now then, as has already been mentioned, a video dated September 24, 2004, from Repretel has been viewed in which the accused [Name001] voluntarily accepts before the journalist interviewing him having received money from the Alcatel company; between September 28 and 30, 2004, the news about this event is published in the national newspapers." (page 1551). Regarding this, the appellant adds: "…According to the text of the judgment just pointed out, there was a video from the Repretel company that was incorporated into the hearing. On this point, there is no discussion whatsoever; in effect, it was offered by the Public Ministry, accepted by the court, and duly incorporated. The defense's claim rests on the fact that no evidence was ever incorporated into the hearing that would allow defining the date on which the video was made, which was even alleged by the defense in the closing arguments phase since, as part of the defense strategy, the omission of that datum by the prosecutors was vital, insofar as the video could not be placed temporally and this limited its evidentiary value. It is inadmissible, in a Rule of Law State, for a court to wait until the parties' closing arguments are finished and, in accordance with the weaknesses of the investigation pointed out, especially by the technical defense, substitute the labor of the accuser and search for data that were not duly incorporated into the process and assess that data to the detriment of the defendant…" There is a subtle reference to the datum, but a clear omission of the reference to the licit evidentiary element from which said information is derived, which causes a reference from a nonexistent evidentiary element, which the Court well knows is the situation available in the case. The appellant finds other references in the judgment to the video where reference is made to other dates and other times of its supposed broadcast: "…See how, even, in another part of the judgment, specifically on page 1457, the court refers to the same video, but says it is a Repretel video from 3:59 a.m. on January 29, 2004, which leaves the doubt as to what the date is, January 29, 2004 or September 24, 2004, data over which the defense did not exercise any control in the hearing but only at the cassation venue. The incorporation in the judgment of the supposed date of the Repretel video in the judgment leaves the defendant in a state of defenselessness, since, as this was not established in the hearing as offered and incorporated evidence, he was left defenseless; the technical and material defense could not control the veracity or not of the datum, could not contradict the evidence in any way, nor could they contradict the conclusions that, in the judgment, the court obtains from the datum that was gathered after the closure of the hearing. It is not a simple date. This incorporation has a transcendental consequence in the court's decision, which is to give it a temporal reference point that was never provided by the prosecution, and which the court uses to 'prove' that at the moment the defendant carries out the sale of the vehicles to the company Dominical Antigua, September 30, 2004, he already knew that he could be linked to the corruption events dealt with in the judgment…" "To determine what the defendant's intention was at the time of the mentioned acts and thus to disperse his assets, simulandi, in the sense that he would be subjected to a criminal process and as the time in which these legal acts take place and the need he had (…) Now then, as has already been mentioned, a video dated September 24, 2004, from Repretel has been viewed in which the accused [Name001] voluntarily accepts before the journalist interviewing him having received money from the Alcatel company; between the 28th and 30th of September, the news about this event is published in the national newspapers. In said information, a series of data are mentioned that reveal the magnitude of the events. The Court estimates that it is precisely those circumstances that lead the defendant to carry out the transfer of the vehicles from his property to a corporation. From that moment, together with the voluntary manifestations that he had provided days before, [Name001] strengthens his knowledge that he will probably be subjected to a criminal process and that his patrimonial assets could be pursued by the authorities, so it was necessary to place them in safekeeping." (folio 1551). In this regard, the appellant reaffirms her criticism of the judgment, not only for making an affirmation that is not based on a justification using properly incorporated evidence, but also because the court derives the knowledge of the situation from a date of a video whose exact date was unknown until the judgment was notified. In support of her claim, she cites a note by Magistrate Rosario Fernández Vindas to Vote No. 1329-2006, where she understood that a court could not say it had acted according to sound criticism and experience when an assessment made of an evidentiary element is not extracted from the evidence received at trial but from the appreciation generated by the Court itself without going through the analysis of the adversarial process, leaving that appreciation as part of the judge's private knowledge. Magistrate Fernández's note is relevant, according to the appellant, because in this case there are consequences, since if the incorporated datum is suppressed, there is no way to demonstrate that by September 30, 2004, the defendant had news that there was an open investigation where Servicios Notariales QC S.A. was mentioned, so that he would suspect that his name would become involved in a scandal and that as a result he decided to fraudulently transfer his vehicles. She requests that the ground be granted, and that the judgment be annulled as to the conviction for the crime of Simulation Fraud and, for procedural economy, that the defendant be acquitted for lack of evidentiary means to demonstrate the accused conduct. The appellant is correct, however, the nullity of the datum of the date of the Repretel video does not have the virtue of leaving the determination of the fact on the issue of simulation fraud without proof. The consideration made by the defense attorney for [Name001] on the issue of the date and time of the video from the Repretel company, where the defendant supposedly acknowledged having received money from the Alcatel company, was not established in a manner that could be known and questioned by the material and technical defense of the defendant. In fact, there is no determination in the judgment that allows knowing how the date and time of said video are fixed with the certainty that the majority vote grants it.

The defense counsel additionally manages to determine that in various sections of the judgment, two different dates are set; in one part of the judgment, specifically on page 1457, the court refers to the same video, but states it is a Repretel video from 3:59 a.m. on January 29, 2004, which casts doubt on which is the correct date: January 29, 2004, or September 24, 2004—data over which the defense exercised no control whatsoever during the trial, but only at the cassation stage. The information regarding the date and time is, in effect, of great importance to the defendant's defense strategy, given that it was in that interview that he admitted to having illegitimately received money from Alcatel, and that he accepted the consequences thereof. In the same way, and based on the video, he is linked to an entire criminal scheme to remove movable property from his personal assets (peculio) and place them beyond the reach of justice. The latter is an important part of the derivation made by the court in the case of the crime of Fraud by Simulation (Fraude de Simulación) attributed to him, as it affirms that this is part of the elements that lead it to decide to simulate a purchase and sale agreement (contrato de compraventa) to a corporation (sociedad anónima). At the hearing of the appeals filed in this case, defense counsel offered a note dated October 30, 2012, signed by [Name072], News Information Chief of Noticias Repretel, visible at folio 174382 of Volume XLI, where he indicates that it is not possible to certify on what date journalist [Name073] conducted the interview with Mr. [Name001]; what could be certified was that the document entered its archive on October 7, 2004. He explains that the television station stored that type of video in a broadcast format, which is now obsolete since digital format is used today. Thus, even with the information coming from the television company itself, the reference that the defense of defendant [Name001] now challenges could not be determined with the chronological and date certainty that the court provides. Similarly, it must be analyzed whether this is the private knowledge of the judge or an inference drawn from other elements; there must be sufficient reasoning so that it can be analyzed at this appellate level (sede de apelación) and eventually at cassation, to derive which elements allowed the judges to consider that the video's date is a specific one. However, and even though this would render the fixing of the video's date and time unlawful, it would not do the same to the document itself, since it was offered and introduced into the process lawfully, and can be assessed by the trial court (tribunal de mérito) and by this appellate level. In the same way, there are other elements of evidence, which have been weighed in the preceding section, that allow it to be held as true and valid that the accused attempted to remove some movable property from his personal assets from the reach of justice through simulated acts or purchase and sale agreements. The evidence, of course, was questioned by the defense, but this Chamber has already considered that it does allow for the conclusion reached by the trial court, together with the fact—which must be underscored—that it was not necessarily the Repretel video itself or the news from television news programs or newspapers that led [Name001] to decide to remove these goods from his personal assets, since it is clear that he could well have learned of it from general comments made within his close or trusted circle, or from co-workers who discussed those circumstances that were interwoven with the investigations carried out regarding the case known as Caja-Fischel, which had some common elements with the matter in which [Name001] knew himself to be involved. For the foregoing reasons, even if hypothetically the reference to the date and time of the video granted by the Trial Court were excluded, other evidence elements subsist, correctly introduced and assessed at trial, that support the circumstantial evidence that allows the criminal planning of [Name001] to be derived, in his attempt to remove property from his personal assets from the eventual inquiries that would not take long to be brought against him.

VIII.- THE APPEAL OF [Name004] RAISED BY LICENCIADA YAMURA VALENCIANO, PUBLIC DEFENDER, IS RESOLVED.- 1. Regarding the crime of improper bribery (cohecho impropio): Of the issues proposed by Licenciada Yamura Valenciano Jiménez, representing Mr. [Name004], she has expressed her disagreement with the judgment through a conversion appeal that she filed in Volume XXXIX. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the accused for the crime of improper bribery in the modality of aggravated corruption (corrupción agravada). First Section.- Defects that by themselves imply the nullity of everything decided. A. Prescription (statute of limitations) of the cause. In the first ground of Licenciada Valenciano, a violation of due process is alleged because the cause has prescribed. She indicates that she raised the objection of prescription at various instances, and it was rejected. The reason given by the Trial Court to dismiss the prescription was based on the declaration of complex processing (tramitación compleja) of the cause issued on March 3, 2006, the judges considering that by virtue of this, the reduction of the prescription term could not apply, pursuant to the third paragraph of Article 376 of the procedural legislation. As the defense argues, procedural acts are governed by the law in force at the time they occur and take effect according to that law. According to Licenciada Valenciano, Article 376 of the Criminal Procedure Code (CPP) would not give the declaration of complex processing any possibility of making its effects retroactive, nor of interrupting the prescription. She is right in her claim. In the present matter, [Name004] has been accused of the crime of improper bribery in the modality of aggravated corruption, which, according to Articles 340 and 342, subsection 1, has a maximum penalty of five years. Therefore, five years is the full prescription period that had to be counted, until one of the acts that interrupt the prescription and reduce the term to half occurred. The first interruptive act of the prescription occurred on October 10, 2004, the date on which the accused appeared to give his statement on the facts; therefore, from that day forward, the period for calculating the prescription went from five years to two and a half years, or equally, thirty months (see folio 146, Volume I). Those thirty months elapsed in April 2007, without any of the grounds for interruption provided for in Article 33 of the Criminal Procedure Code or suspension established in Article 34 occurring in the interim. Consequently, by the time the preliminary hearing was scheduled for the first time, that is, September 10, 2007, the criminal action against [Name004] for the crime of improper bribery had already prescribed, and with it, the State's power to prosecute him criminally. The reasoning supporting this conclusion has already been expressed when resolving the appeal of Dr. [Name012], to which reference is made to avoid unnecessary repetitions. It is appropriate, then, to declare the cause against [Name004] prescribed and to acquit him of the crime of improper bribery in the modality of aggravated corruption that was being attributed to him. B. Defects regarding the determination of the fact and the assessment of the evidence to determine the circumstantial evidence that led to the conviction for the crime of improper bribery. Despite the fact that the cause against [Name004] has been declared prescribed, and any subsequent assessment of the elements that make up the jurisdictional conviction criteria could lack interest, it is now appropriate to analyze other aspects that could cause the nullity of the judgment due to deficiencies in the argumentative process and in the generation of the inferences of the majority vote of the trial court. Thus, it is of interest to analyze the third ground of the appeal formulated in favor of [Name004], where Licenciada Yamura Valenciano raises affronts to the rules of logic, to the principle of derivation in the reasoning of the judgment insofar as it attributes the crime of improper bribery to the accused. She begins with a transcription of facts 116 and 117 of the judgment: "116) That during his tenure as a director of I.C.E., defendant [Name004] maintained fluid communication and extreme trust, derived from his position, with defendant [Name015] and with indictee [Name035]. 117) Without specifying a date, but in the period between late 2000 and early 2001, defendants [Name015] and [Name035] asked defendant [Name004] to carry out the necessary actions within the scope of his functions as a Director of I.C.E., in support of Alcatel's interests, primarily, to promote the migration from TDMA technology to GSM technology, promote purchases through tenders (licitaciones), and prevent them from being aborted. Subsequently, once the abbreviated contracting process for the 400,000 was authorized, they asked him to vote in favor of the award of said tender to the company Alcatel; in exchange for all the above, they promised him the delivery of a bribe (dádiva), which would be paid in money. Said promise was accepted by defendant [Name004]…". The arguments that the court uses to establish said promise as true are the following: "Consequently, it is clear that the described scenario did not favor the commercial interests of Mr. [Name015] and [Name035], representatives of the firm Alcatel CIT, a circumstance that motivated them to promise and later deliver a bribe to [Name004] who, as a member of the ICE Board of Directors, had the power to promote the change from TDMA technology to GSM, to vote in favor of a public tender thus allowing the participation of Alcatel Costa Rica, and to vote affirmatively for the award of the 'abbreviated 1-2002' contract for the lease of the '400,000 GSM cellular lines' in favor of Alcatel. As indeed happened. A second evidentiary element to consider that this 'promise of a bribe' effectively occurred is constituted by the statement of cooperating defendant [Name026], to whom the Court by majority has given full credibility, without finding to date any reason to say that he has come to lie to the trial, as has already been indicated in previous considerations; even though we could find some differences regarding the statements that were incorporated by reading at trial, the truth is that in their relevant points, he has always maintained the same version. This is how he points out that he effectively met with [Name015] and [Name035]. In said meeting, in his own words, the aforementioned offered him a reward if he helped them in three directions: 1) to help materialize the migration to open technologies or GSM; 2) that the project or initiative to purchase materials and equipment for this expansion be materialized through a public contest or tender; and 3) that he vote affirmatively for the technical criteria or those of the technical bodies as the ICE director that he was. An important piece of information that we must not overlook is that, according to the testimony of [Name026], the 'offerors' at the beginning of that meeting stated that they had courtesies or rewards for the people who helped them. [...] A third element to consider for the purpose of considering the promise of a bribe as proven is constituted by the so-called 'proposal for a course of action' prepared by [Name058], a witness who although abstained from testifying at trial, this does not prevent the use of that document since it was incorporated by reading to the trial. Said proposal, which describes a basic scheme of action to address Alcatel's problems with the ICE, as has already been specified, covers for example the business sector, the Catholic Church, minority parties, but also the political sector. The document is very clear in warning that the support of at least three deputies, a pre-candidate for the Presidency of the Republic, members of the political directorate of the National Liberation Party (Partido Liberación Nacional), and private advisement, including from a former president, would be needed (Evidence No. 686). This document, without a doubt, demonstrates the urgency and need that Alcatel Costa Rica, in the person of co-defendant [Name015], had to exhaust all social and, above all, political instances so that its offer regarding GSM technology would be the one accepted by the ICE. Let us recall said company's dissatisfaction with the administrative policies in the area of procurement that the ICE had. The foregoing only confirms what the prosecutorial accusation has already described, regarding the fact that co-defendants [Name015] and [Name035] effectively contacted not only [Name026], but also [Name004] and [Name001], in order to promise them a bribe in exchange for helping the company Alcatel to succeed, given their functions...". It is thus that the defense of [Name004] maintains that three are the fundamental elements to sustain this conclusion of the judgment regarding the offer of a bribe that the former director received. On one hand, the statement of [Name026], the roadmap drawn up by [Name058], as well as the presumed adverse scenario that was presented for Alcatel's interests. This Chamber considers that Licenciada Valenciano is right in her appreciation of the argumentative elements of the judgment, and in her criticism thereof. It has already been analyzed, in great detail, when resolving the appeal in favor of [Name001], that this Chamber does not share the view of the majority vote of the trial court in the sense that the "roadmap" drawn up by Mr. [Name058], as Alcatel's political advisor, implies the design of a criminal plan to corrupt public officials. It is rather a design of a strategic plan to build a consensus regarding the need for decision-making on the issue of technological opening in the cellular field, which implied reaching various sectors and opinion-forming persons, with the aim of generating knowledge about the technical issue and the technological advantages that said opening could bring. It is possible that Alcatel felt lagging regarding its aspirations to participate in the Costa Rican cellular market, and it is also possible that at some point it felt excluded from intervening in direct purchases already made from the suppliers—up to that moment dominant at ICE: Lucent and Ericsson. However, the scenario of lagging behind did not necessarily mean that Alcatel decided to approach [Name004] to make him a promise of a bribe, specifically, to collaborate with the multinational's business objectives. In the same way, deriving from the statements of [Name026] certainties about the intervention of [Name004] in any corrupt criminal scheme is, as has already been studied on the occasion of the resolution of Mr. [Name012]'s appeal, impossible, for the reasons already expressed when analyzing the issue of [Name026] and his role in this process. The defense counsel correctly points out the circumstance that the same reason for the accusation that could correspond to [Name026] cannot be attributed to another ICE director like [Name004] was. [Name026] himself said he did not know if other ICE directors received the same bribe proposal that he received. This argumentative proposition of the Trial Court cannot be endorsed by this Chamber and collapses under its own weight. The Trial Court attempted to involve [Name004] in the decision regarding the concession of the 400 thousand cellular lines to Alcatel, traces his participation in the sessions of the Board of Directors where the matter is discussed, and cites the Extraordinary Session No. 5249 of December 5, 2000 (folio 1395 of the judgment, Volume XXXII). However, the judges' own citation of this Session does not omit the reference to the fact that there was a Comprehensive Telecommunications Plan project that needed to be promoted and that authorization had to be requested from the Comptroller General's Office (Contraloría General) to expand the exchanges and provide solutions with a GSM system. Right there it was noted that the Business Unit (UEN) for mobile telephony justified the "technical affability" to implement 400 thousand cellular lines starting from the existing fixed exchanges. As was seen during the study of the appeal raised in favor of [Name001], said process up to the decision of proposing the matter of the 400 thousand lines in an abbreviated procedure was not devoid of problems, difficulties, and requests for information and technical studies. The decision itself to opt for an abbreviated procedure was not the ICE's but the Comptroller General of the Republic's. The ICE preferred to continue with the matter of direct purchases. The abbreviated procedure itself, and the core of the request for offers, did not specifically carry Alcatel's orientation. The generation of said tender arose from the joint work of the ICE authorities, the suppliers, and was an intensive process that sought the best offer that would allow the ICE to fill the existing demand and incorporate services of interest to Costa Rican users. All aspects related to these arguments have already been discussed and analyzed before, but they are repeated here to point out the weakness of the derivations made by the majority Court, as well as the alleged offer of a bribe that [Name004] might have received to pave the way for the Alcatel company in an abbreviated procedure that, at the date the alleged bribe was given, did not even exist as a real possibility. According to the Court, there was a relationship of trust and friendship between [Name004], [Name015], and [Name035] (folio 1401, Volume XXXII); said closeness explained why it supposes that between late 2000 and early 2001, they promised him a bribe in exchange for promoting the migration from TDMA technology to the GSM technology that Alcatel supplied. Among the favors and closenesses, the judgment mentions the letters sent to Alcatel Chile to attend to [Name004] when he visited that country, or the reservation of Hotels in Spain and France in March 1996 (folio 1402 of the judgment). The courtesies extended to the accused occurred on other occasions, even paying for a trip for him to Spain in October 1999. The judgment weaves together this relationship of [Name004] with [Name015] and with Sapzisian and then connects him to the plans for favoring the multinational in its venture in Costa Rica. That is why, in the judgment, the Court links the payment of the sums of money to [Name004] with the fulfillment of the tasks entrusted to him in relation to the 400 thousand cellular lines. However, and as already explained for the case of [Name001], the plan to offer bribes at a time when there was still no clarity on the path to be followed and when a path was finally chosen that was not entirely favorable to Alcatel, such as the abbreviated procedure, which did not guarantee it any certainty of emerging victorious from the offer process, leaves much of this argumentative line of the Court without support. It is true that, finally, Alcatel emerges victorious, but as could be observed from the previous decision-making path, this occurs precisely because it met the requirements of the offer and because the company Ericsson was disqualified. The circumstantial evidence that the judgment constructs in this regard proves, therefore, meager and amphibological, as defense counsel Valenciano accused. This Chamber has already insisted on the need for the weighing of the circumstantial evidence to result in a conclusion based on its global analysis. It is from there that the rules of logic and experience demand that the circumstantial evidence lead rationally to the conclusion sought to be sustained. The three elements that the judgment on the merits attempts to use lack the solidity that the Trial Court intends to give them, and its conclusions cannot be endorsed to sustain a conviction. This is why the ground raised by the defense of [Name004] must also be declared well-founded for this reason, and for these reasons, the judgment would also have to be annulled because there is no support in the determination of the fact attributed to accused [Name004].

IX.- THE APPEAL RAISED BY DEFENSE COUNSEL NAZIRA MERAYO ARIAS AND WILSON FLORES FALLAS IN FAVOR OF ACCUSED [Name007] IS RESOLVED.- 1. Regarding the crime of Illicit Enrichment (Enriquecimiento Ilícito): Of the issues proposed by Licenciados Nazira Merayo Arias and Wilson Flores Fallas, representing Mr. [Name007], their disagreement with the judgment has been expressed through various writings, the first of which is a "cassation" appeal filed by defense counsel Flores on April 27, 2011 (cf. Volume XXXVI, starting from folio 171102), and subsequently in a conversion appeal. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the accused for the crime of Illicit Enrichment. First Section.- Defects that by themselves imply the nullity of everything decided. A. Prescription of the cause. In the first ground regarding form of Licenciado Wilson Flores's appeal and in the first regarding form of Licenciada Nazira Merayo's appeal, a violation of due process is alleged because the cause has prescribed. They indicate that the objection of prescription was raised at various instances, and was rejected. The reason given by the Trial Court to dismiss the prescription was based on the declaration of complex processing of the cause issued on March 3, 2006, the judges considering that by virtue of this, the reduction of the prescription term could not apply, pursuant to the third paragraph of Article 376 of the procedural legislation. As the defense argues, procedural acts are governed by the law in force at the time they occur and take effect according to that law. Article 376 of the CPP would not give the declaration of complex processing any possibility of making its effects retroactive, nor of interrupting the prescription. They are right in their claim. The appellants mention that the legal classification given to the facts against [Name007] was reduced to the crime of illicit enrichment, which for the date of the facts stated (December 10, 2001, Article 346, subsection 3): "A public official who, without incurring a more severely punished crime, shall be punished with imprisonment from six months to two years: 3) Accepts bribes (dádivas) that were presented or offered to him in consideration of his office, while he remains in the exercise of his position." Hence, co-defendant [Name007] is attributed 3 crimes of illicit enrichment, in material concurrence (concurso material), according to the provisions of Article 346, subsection 3 of the Penal Code, punishable with prison sentences of 6 months to 2 years, whose prescription period, according to Article 31 of the Criminal Procedure Code, would be 3 years; therefore, the period reduced by half would be 18 months from one of the events of interruption of the prescription. Specifically, Article 33 of the procedural law establishes that prescription periods shall be reduced by half in several cases; the one of interest here is when the investigatory statement (declaración indagatoria) has been rendered. In the case of Mr. [Name007], this took place at 2:05 p.m. on March 7, 2005 (Folio 1984).

Therefore, a statute of limitations period of 18 months must be calculated from this moment until the holding of the Preliminary Hearing. The scheduling of the Preliminary Hearing was done on September 10, 2007, meaning that by the time said act took place, the case would have already prescribed since September 7, 2006. However, the Trial Court considers that the declaration of complex proceedings declared on March 3, 2006, produces a retroactive effect, affecting the declaration as an accused (imputado) that had begun with ordinary proceeding prescription rules. This Chamber had already ruled against the retroactive effects given to the declaration of complex proceedings for the case. The reasoning supporting this conclusion has already been expressed when resolving the appeal of Dr. [Nombre012], to which reference is made to avoid unnecessary reiteration. It is therefore appropriate to declare the case against [Nombre007] prescribed and to acquit him of the crime of Illicit Enrichment (Enriquecimiento Ilícito) that had been attributed to him. **B.** Spurious evidence. In the sixth ground on procedural form of the appeal of attorney Wilson Flores and also in the sixth ground on procedural form of the appeal of attorney Nazira Merayo, on behalf of the defendant [Nombre007], the incorporation of evidence obtained in violation of fundamental rights is challenged. The appellants state that the judgment would have incurred a violation of due process, by violating the provisions of articles 24 of the Political Constitution (Constitución Política), 175, 176, 363 paragraph b and 369 paragraph d, both of the Code of Criminal Procedure (Código Procesal Penal), 29 of the Law on the Registry, Seizure and Examination of Private Documents and Intervention of Communications (Ley Sobre Registro, Secuestro y Examen de Documentos Privados e Intervención de las Comunicaciones), an aspect punishable by nullity. With respect to documentary evidence No. 588, which is a certified copy of the Judicial Assistance from the Republic of Panama, sent via official letters PGR-030-2004, dated September 10, 2004, and No. 316-DN-TALM-04 of September 6, 2004, consisting of 420 folios, the appellants state that the consent of the legal representative of Marchwood Holding, the account holder, Mr. [Nombre032], is not sufficient, since the proceeding was carried out, in its time, without a judicial order as required by Costa Rican law. They argue in this regard, based on some considerations about the fundamental right to privacy derived from article 24 of the Constitution, which is in turn a guarantee derived from international human rights law (article 11, paragraph 2 of the American Convention on Human Rights (Convención Americana de Derechos Humanos), article 17 of the International Covenant on Civil and Political Rights (Pacto Internacional de Derechos Civiles y Políticos)). Intervention in the private sphere of citizens may only be authorized by law, and under the conditions it establishes, and in whose application and interpretation there will always be jurisdictional guarantee. By virtue of this, consent such as that expressed by [Nombre032] would not have the virtue of enabling the disregard of the guarantees derived from that constitutional right to privacy. The action consented to by [Nombre032], moreover, affects the fundamental rights of other actors, and through it, an element of evidence is obtained and information is obtained linking Servicios Notariales Q. C. S. A. with the Cuscatlán International Bank and international transfers from Servicios Notariales Q. C. S. A., in favor of accused persons in this case and from Alcatel Cit in favor of Servicios Notariales Q. C. S. A., therefore the evidence derived, including evidence against [Nombre007], would also be unlawful, and it is requested to be declared so. **They are correct in their claim.** The arguments for analyzing this legal problem have already been explained above, when resolving the appeal filed by Dr. [Nombre012] (A-1). Accordingly, it is appropriate to apply to the defendant [Nombre007] the same effects that this determination had for the defendant [Nombre012]; the nullity of documentary evidence No. 588 and all the evidentiary elements dependent on it are declared, the nullity of the criminal conviction judgment handed down against [Nombre007] is declared, and instead he is directly acquitted of all penalty and liability. The contested judgment remains intact insofar as it acquitted him for two crimes of Illicit Enrichment. **B.** Defects regarding the determination of the fact and the assessment of the evidence to determine the indicia that led to the conviction for the crime of Illicit Enrichment. **1) Regarding the elements of the objective and subjective actus reus (tipicidad) of the crime of Illicit Enrichment that must comprise the accusation and the evidence that must be assessed for the legal-criminal attribution of the fact to the defendant.** In the first ground of the appeal of attorney Wilson Flores, and in the fourth ground on procedural form of the appeal of attorney Nazira Merayo, an erroneous application of substantive law is alleged, since the **facts described in the accusation corresponding to facts 203, 208, and 210 do not describe the objective and subjective elements of the criminal definition of illicit enrichment that is charged, corresponding to article 346, paragraph 3 of the Criminal Code (Código Penal).** They argue that the judgment incurs a violation of the principle of correlation between accusation and judgment, as established in articles 363, paragraph b) and 369, paragraph h), both of the Code of Criminal Procedure. According to attorney Wilson Flores, the facts from 199 to number 211 present problems with respect to the typical description of the crime of illicit enrichment. **They are correct in their claim.** This Chamber has carefully read the facts attributed to the defendant [Nombre007], and it is observed that, indeed, it is attributed that various gifts (dádivas) consisting of money were presented to him, which were admitted by him, while he remained in his position as an ICE official in the Switching Department (Departamento de Conmutación). Thus, fact 201 states:

“*…201) The defendant [Nombre015] and the indictee [Nombre035], as representatives of the Alcatel company, presented to the accused [Nombre007], in consideration of his office, a gift consisting of money, which was admitted by [Nombre007] while he remained in the exercise of his position as a public official, specifically as Deputy Head of the Direction of the Switching Department of I.C.E., a situation that generated illicit enrichment for him.*” The Illicit Enrichment charged is based, as the Public Ministry (Ministerio Público) might be posing in its accusation, first, on having been the subject of an offer of a gift, which is not a specific and specializing element of the crime charged, but of some other criminal figures, such as, for example, the crime of Bribery (Cohecho). As postulated by the defense, there would be a need for the accusation to contemplate the specializing elements of Illicit Enrichment every time the act carried out by the defendant is described, on the various occasions on which said criminality may have taken place. That is, each time an offer of a gift occurs, there should also be the imputation of the correlative acceptance. In a word, for the criminal imputations to be complete, they should be described in this manner each time a new act of Illicit Enrichment is attributed to the defendant. Furthermore, the crime of Illicit Enrichment requires that the accusation describe that the presentation of the gift is made in consideration of the office of the person who is a public official, since the gift by itself is already an objective requirement of the criminal definition of various offenses such as improper bribery (cohecho impropio), proper bribery (cohecho propio), or the same acceptance of gifts for an act performed, for example. Hence, the accused fact and the eventual actus reus (tipicidad) of the conduct that could derive from it are not clarified with the required precision. In facts 203, 208, and 210 this deficiency is again noted:

“*Without specifying a date, but after December 10, 2001, and before January 10, 2002, [Nombre015] and [Nombre035] presented to the accused [Nombre007] a gift consisting of investment certificates Nos. [Valor040], [Valor041], [Valor042], and [Valor043], all issued to bearer on December 10, 2001, with an expiration date of January 11, 2002, from Banco Cuscatlán of Costa Rica, each for ten thousand dollars ($10,000), for a total of fifty thousand dollars ($50,000), and their interest coupons for one hundred eighty-two dollars and ninety-five cents ($182.95)*”.

*In fact 208 it is charged:* *“Without specifying a date, but between July 2, 2002, and August 5 of that same year, [Nombre015] and [Nombre035] presented to the accused [Nombre007] a gift consisting of bearer investment certificates from Banco Cuscatlán of Costa Rica No. [Valor044], [Valor045], [Valor046] for the respective amount of ten thousand dollars ($10,000), five thousand dollars ($5,000), and five thousand dollars ($5,000), and their corresponding interest coupons for the total sum of $53.17.”* *In fact 210 it is charged:* *“Without specifying a date, but between December 17, 2002, and January 21, 2003, the corrupters [Nombre015] and [Nombre035] presented to the accused [Nombre007] a third gift consisting of bearer investment certificates from Banco Cuscatlán of Costa Rica No. [Valor047], [Valor048], [Valor049] and [Valor050], each for the amount of ten thousand dollars ($10,000) for a total of forty thousand dollars ($40,000), and their respective interest coupons for a total of $100.80., which was accepted by the accused [Nombre007] and he disposed of it in the following manner:..”.* In this regard, the defense counsels for the defendant [Nombre007] indicate that the preceding description does not contain the necessary requirements for the objective and subjective actus reus (tipicidad objetiva y subjetiva) of the charged illicit act, so that, eventually, the accused facts would become atypical by not establishing what, how, and in what manner the behavior attributed to the defendant was carried out. On the one hand, taking into account that we are dealing with an intentional conduct in which the person presenting the gift does so in consideration of the office of the official receiving and accepting it, there would be a need to describe the circumstances in which this knowledge plays a role, beyond admitting that such an element would be deduced from the position that [Nombre007] held at ICE. This second condition of the typical fact is also intentional, and requires that the active subject know the reason motivating the presentation of the gift. As well expressed in the dissenting vote (voto salvado) of Judge Camacho, the criminal definition of Illicit Enrichment can be fulfilled through two alternative conducts: i) the acceptance of an offered gift and ii) the acceptance of a presented gift. These are, in effect, two possibilities for the actus reus (tipicidad) of the fact, which must be differentiated to clarify what is attributed to the active subject, who is, in effect, a public official, and is the object of these offers in consideration of said position. It is for this reason that, determining the scope of the prohibition, the active subject who enters into material possession of the gift that is placed in his presence by another subject would fulfill the criminal definition; but the active subject who agrees to receive in the future the gift that another subject has committed to give him would also be punishable. As can be seen, the criminal figure is complex, requiring the demonstration of these alternative circumstances, in order to establish the conditions of the attributed fact. However, as Judge Camacho correctly points out in his dissenting vote, these are two facts that do not have the same legal significance (cf. Dissenting Vote of Judge Camacho, folios 2013 to 2015). The receipt of the gift has different consequences in these alternative typical conducts: in the case where it is consummated by the mere acceptance of the offered gift, it is not necessary to demonstrate the receipt of the gift itself, since consummation occurs with the “acceptance.” In the other case, precisely the consummative phase requires that there be a demonstration of the receipt of the gift. In this regard, the dissenting vote holds the following considerations, which this Chamber endorses:

“*The receipt of a gift from an offer previously accepted and the acceptance of a presented gift do not have the same legal meaning. In the first assumption, it is an irrelevant act of exhaustion (agotamiento), and the second assumption is the act that consummates the crime. All elements of the criminal definition must be present at the moment of consummation. It is at the moment of consummation that the active subject must be a public official, that the gift must be presented and offered to him in consideration of his office, and additionally, the official must remain in the exercise of the position at that moment. In the assumption of the typical conduct of “acceptance of a presented gift,” all the cited typical elements must be fulfilled when the active subject enters into possession of the gift. In the assumption of the typical conduct of “acceptance of an offer of a gift,” all the typical elements must be present when the acceptance occurs, but it is not necessary for all the typical elements to be present when the active subject enters into material possession of the gift, which, as we have seen, is an irrelevant act, a moment at which he could have ceased to be a public official, and that would in no way affect the actus reus of the conduct at the moment of consummation (acceptance of the offer). It is for the foregoing reason that it is essential to determine in each case the specific conduct carried out by the active subject in light of the criminal definition of illicit enrichment*” (Dissenting Vote of Judge Jorge Camacho, folio 2015).

In the case of the facts attributed to [Nombre007], we would be, then, in the presence of an accusation for an incomplete fact, which does not satisfy all the elements of the objective definition (tipo objetivo) and leaves the subjective element of the fact without substance, both for the one who offers and the one who accepts the gift. It is considered, of course, that Illicit Enrichment is a subsidiary criminal figure, and that it comes into consideration given the difficulty or impossibility of demonstrating other figures against the duties of public function, but in this specific case of the criminality attributed to [Nombre007], that subsidiarity cannot be found, not only because the accusation remains at the mere fact of the offer of the gift, and does not elaborate, with sufficient evidence, the other typical considerations of the punishable act. Moreover, the accusation leaves to a judicial elaboration the requirements for framing the punishable conduct that are not in the prosecution's hypothesis and that must arise from an effort of elucubration that conflicts with the limits of judicial work imposed by article 39 of the Political Constitution. The defects of the accusation lead to preventing the attribution of criminal conduct to [Nombre007], no matter how much evidence is available of the sums of money offered or received. It is for this reason that the conviction judgment against [Nombre007] for one crime of Illicit Enrichment would have to be annulled, for not having charged and proven the elements of the alternative objective and subjective actus reus attributed to him; and it is appropriate, in such a case, to acquit him of all penalty and responsibility for the crime of Illicit Enrichment, reclassified, for which he was convicted. **2)** Offense against the principle of *in dubio pro reo*, since it is not possible to know which gift the Court grants the virtue of conferring the condition of being an “acceptance of a presented gift” that has specific characterizing elements that should have been charged and proven by the court of merit. In the fourth ground on procedural form of the appeal of attorney Wilson Flores, an infringement of the principle of *in dubio pro reo* is challenged, since the court, in addition to substantially modifying the accused facts, convicts the defendant for an Illicit Enrichment that includes the payment of a gift divided into a payment in three installments. **The point raised implies a violation of the principle of correlation between accusation and judgment**, and implies a contravention of the provisions of articles 9, 363 paragraph b and 369 paragraph d, all of the Code of Criminal Procedure, a judicial action that is punishable by nullity. According to the appellants, it is not known with scientific certainty which of the three gifts that were offered to the defendant was in consideration of his position as a public official, that is, as Deputy Head of the Direction of the Switching Department of the Costa Rican Institute of Electricity (Instituto Costarricense de Electricidad) and while he was exercising the same. This last point, because as set out in the preceding analysis, each acceptance of a gift would constitute an independent fact, and, by all indications, the fact contemplated as 201 would not cover the three gifts that, according to the accusation, Mr. [Nombre007] received. The underlying thesis of the appeals of attorneys Flores and Merayo would entail accepting that if one of the gifts described in fact 201 retains its typical materiality, the other two would be atypical, and it would be necessary to acquit the defendant for their commission. The surviving conduct, if it indeed maintains the requirements of actus reus, would have evidentiary problems, which would prevent knowing which of the gifts, specifically, was received while the defendant was a public official. Along with this, there is a significant area of doubt, since it is not known what type of behavior Mr. [Nombre007] was expected to display. A first hypothesis would imply that he was expected to perform an act proper to his functions. A second hypothesis would consist of the hope that [Nombre007] would omit an act proper to his functions. If this were the case, the applicable actus reus to the behavior of [Nombre007], in both hypotheses, would correspond to a criminal definition different from that contained in article 346, paragraph 3). The same would happen if the expected act of [Nombre007] was that he would delay an act corresponding to his functions or perform one contrary to them. An additional hypothesis is also acceptable, and that is that the gift was intended as a reward for an act performed or omitted. It would also not be out of the picture that [Nombre007] was accused of, in abuse of his position, having compelled [Nombre015] or [Nombre035] to give or promise a gift. This last case also corresponds to a different imputation from Illicit Enrichment, strictly speaking. The solution proposed by the majority vote seeks, then, to concentrate the illicit enrichment into a single offer with a gift in three installments. This circumstance, in effect, was not included in the accusation. The Public Ministry accused three independent crimes without characterizing elements, and in Recital XII (Considerando XII) of the Judgment, on “Description of the conduct of the accused [Nombre007],” it was stated:

“*190) The defendant [Nombre015] and the indictee [Nombre035], as representatives of the Alcatel company, presented to the accused [Nombre007], in consideration of his office, a gift consisting of money, which was admitted by [Nombre007] while he remained in the exercise of his position as a public official, specifically as Deputy Head of the Direction of the Switching Department of I.C.E., a situation that generated illicit enrichment for him. Said gift was paid in three installments.*” This, without a doubt, transforms the accused fact, trying to accommodate the circumstance of the gifts and the absence of specializing elements for each one of them, to involve a fact that surprises the defense, in the sense that it convicts for a gift in installments that [Nombre007] would receive for the performance of activities or omissions that are not clarified, as well as the conditions within which the payment in installments would be explained. This latter point does not align with the circumstance accepted by the majority court that convicts the defendant for “acceptance of a presented gift,” which is a different fact and requires the demonstration of different characterizing elements that have not been proven, and much less attributed to the defendant. It is true that the Court, in application of the principle of favorability, preferred to convict for a single act of Illicit Enrichment; however, despite this, the imputation of a single offer of a gift does not allow one to know which one it is, as explained in the preceding section, and could lead one to think of the actus reus of different criminal facts where a gift is an element to take into consideration, as is the case of proper bribery (cohecho propio), improper bribery (cohecho impropio), acceptance of gifts for an act performed, and the same penalty for the corrupter. It is for this reason that, for this reason as well, there would be no basis to convict the defendant [Nombre007], and there would be sufficient reason to declare the nullity of the judgment, insofar as it holds the defendant as the responsible author of a crime of Illicit Enrichment, by reclassification. **A) Regarding the conviction on personal costs imposed on the defendant [Nombre007].** Attorney Wilson Flores challenges that the judgment incurs the defect of lack of reasoning on this aspect, and thereby violates the provisions of articles 142, 363 paragraph b and 369 paragraph d, both of the Code of Criminal Procedure, an aspect punishable by nullity. The fifth ground of the appeal of attorney Nazira Merayo pronounces in the same sense.

**They begin their argument with what was raised regarding the personal costs (costas personales) imposed on [Nombre007], without any evidentiary basis regarding his solvency**. Regarding the issue of costs, the judgment states: "Given the proven economic solvency of the convicted individuals [Nombre004], [Nombre001], [Nombre018], and [Nombre007], who opted for legal counsel from the Public Defense lawyers of the Judicial Branch, in accordance with articles 152 of the Organic Law of the Judicial Branch and 265 of the Criminal Procedure Code, each must pay the fees of the professionals who have assisted them during this process. This item is set at the sum of TEN MILLION COLONES, covering their professional performance from their appearance until the issuance of this ruling, but not any eventual appeals and other procedures required after its issuance. Said sum must be paid by each of the defendants to the Judicial Branch within fifteen days following the date the judgment becomes final, with the corresponding seizure and auction of their assets in the event of non-compliance with this obligation." In this regard, it indicates that the judgment does not state how it reached the conclusion of the effective economic solvency of [Nombre007], which leaves the ruling unfounded in this respect, because even though the personal freedom of the defendant is not affected, the judgment must be self-sufficient in its reasons regarding the impact on the defendant's assets. **This aspect must be granted.** Indeed, the judgment does not have an adequate reasoning for the economic condition of the defendant and the reasons why he should pay for the judicial services of the public defenders who have represented him. This aspect, of great importance for the case, required a detailed reasoning that allows understanding why [Nombre007] must assume these costs of the proceeding against him. By virtue of this, and because the judgment lacks sufficient reason in this regard, its annulment regarding the issue of costs must be declared. **B. Forfeiture (Comiso) of the Suzuki Grand Vitara XL vehicle, license plate No. [Valor032].** The defendant was sentenced, as a consequence derived from the punishable act, to the forfeiture of a vehicle, specifically a Suzuki Grand Vitara XL, license plate No. [Valor032], for which there is no reasonable determination in the judgment that such vehicle was acquired with money from the illicit activity under investigation or is a direct product of the criminal activity undertaken. **The appellants are correct regarding the issue of the forfeiture of this vehicle.** It is observed that the resolution of this point is unfounded, which in principle warrants its annulment for a new substantiation; however, by virtue of the way in which the other issues raised in relation to [Nombre007] have been resolved, a remand is not appropriate and, on the contrary, based on the provisions of the third paragraph of article 465 of the Criminal Procedure Code, in this appeal venue it is appropriate to amend the issue raised. It has not been possible to determine that the vehicle in question was acquired with money from the alleged illicit activity of [Nombre007]; the mere circumstance that the defendant held ownership of this vehicle is not sufficient to prove that it was acquired with money from illicit activities. Consequently, it is appropriate to grant the ground for challenge, order the annulment of the forfeiture (comiso), and the return of the vehicle to the person from whom it was seized.

X.- THE APPEAL FILED BY DEFENDER MARIO NAVARRO ON BEHALF OF THE ACCUSED [Nombre009] IS RESOLVED.- Mr. Mario Navarro filed a cassation appeal on behalf of his client [Nombre009], but also starting from folio 172091 and concluding at folio 172271 of Volume XXXVIII, based on articles 39 and 41 of the Political Constitution; 1, 142, 184, 363, 367, 437, 438, 439, 447, 458, 459, and 460 of the Criminal Procedure Code, Transitory III of Law No. 8837 on the Creation of the Sentence Appeal, and within the two-month period granted by the Third Chamber of the Supreme Court of Justice, filed an APPEAL against judgment 167-2011 issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, at three o'clock in the afternoon on April 27, 2011, which convicted his defendant for three crimes of Penalty of the Corruptor for Aggravated Corruption in the modality of Improper Bribery, imposing a total of 15 years of imprisonment. In this appeal, Mr. Mario Navarro Arias includes two new grounds based on form, regarding the alleged incorporation of illicit evidence into the ruling, as well as for disagreement with the determination of the facts. In the same way, he adds a new ground directed against the scant reasoning of the sentence imposed on his client, as well as three grounds in relation to the civil aspect of the judgment. Of the issues proposed by Mr. Navarro, representing the defendant, this Chamber proceeds to resolve the grounds that by themselves imply the annulment of the judgment and the acquittal of Mr. [Nombre009] for three crimes of Penalty of the Corruptor for Aggravated Corruption in the modality of Improper Bribery. **Section One.- Defects that by themselves imply the annulment of everything resolved. A. Spurious Evidence.** In the first ground based on form of Mr. Mario Navarro's appeal on behalf of [Nombre009], the incorporation of illicit evidence and the consequent violation of due process is alleged. He indicates that the illegality of documentary evidence number 588 has been insisted upon, which is a certified copy of the Judicial Assistance from the Republic of Panama, sent via 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 of the Panamanian company Marchwood Holding, would be tainted for several reasons: 1. It was brought into the process at the instance of the Public Prosecutor's Office without a prior judicial order. 2. The banking documentation was obtained from the so-called "CAJA-Fischel" case, case file No. 04-005356-0042-PE, where, as the banking secrecy had not been lifted, the Third Chamber of the Supreme Court of Justice, by resolution number 2011-00499 at 11:45 a.m. on May 11, 2011, by majority, granted the appeal filed by the defense, decreeing the nullity of the evidence gathered in Panama, and all the evidentiary elements that depend on it. 3. By virtue of the fact that the chain of custody was violated, as the content of said evidence was leaked to the press long before the intervening parties in the process became aware of it, so much so that in the newspaper "La Nación" on September 8, 2004, visible at folios 2 and 3 of Volume I, the public is informed of its content. In the same vein, and for greater clarity, it refers to the accused fact number 190, where the Public Prosecutor's Office expressly alludes to the publication made in "Telenoticias" in the first days of September 2004, which indicates that as a result of the evidence gathered in Panama, it was discovered that the Company Servicios Notariales Q.C. deposited large sums of money into the account of Marchwood Holding Company. Regarding what was indicated about the illegality of evidence 588, it is considered that the lifting of banking secrecy was not ordered by a competent judge, and, consequently, there was also no reasoned resolution evaluating said diligence prior to its execution. The Trial Court rejected the defective procedural action filed by the defense, indicating that the order to lift banking secrecy was not necessary, given that [Nombre032] himself, a co-accused in the Caja-Fischel case and a witness in the sub judice, had given his consent for said evidence to be gathered. The appellant believes that the authorization given by [Nombre032] would cover the elements of said evidence that affect his own interests, but in no way can it authorize the impairment of the fundamental rights of the remaining accused. As Mr. Navarro analyzes it, Law No. 7425, Law on the Registration and Seizure of Private Documents and Intervention of Communications, in its article 29, clearly establishes that "There shall be no illegitimate intrusion when the holder of the right expressly grants consent. If there are several holders, the express consent of all must be obtained." Furthermore, if hypothetically [Nombre032] were authorized to grant that consent, it is clear, according to his point of view, that said assent must have been prior and not subsequent. He cites in support of his thesis the doctrine of Prof. Francisco Castillo, in his text "Derecho Penal. Parte General, p. 366, quoted, in turn, by the dissenting opinion. With support also in Voto 111-1993 of the Third Chamber, at 8:40 a.m. on March 26, 1993 (which has doctrinal references to Bacigalupo, who also refers to Schmidthäuser), he insists that the consent must be prior to the injury of the legal right. Based on this doctrinal assertion, he says that the evidence argued to be illegitimate was obtained in September 2004, and it is not until May 2010, according to document no. 759, that Mr. [Nombre032] "validates" with his consent the illegally obtained evidence in Panama. This consent, then, cannot conceal the constitutional injury committed in relation to the rights of the other co-defendants. If the consent of all the affected parties was not obtained, an express order from a competent judge should have been requested to order the lifting of banking secrecy, which evidently did not occur, hence the irregular action of the Public Prosecutor's Office. As it was evidence 588 that allowed the detection of the existence of Servicios Notariales Q.C. S.A., as is evident from the reading of accused fact number 190, and from there request the lifting of banking secrecy in relation to that corporation, as is evident from documentary evidence numbers 86, 87, 90, and 91, outlined by the Public Prosecutor's Office in its prosecuting brief and used as an essential basis for issuing the judgment. Both the request and the orders for lifting secrecy would be, as the challenger postulates, devoid of evidentiary validity. The same happens with the evidence obtained through Banco Cuscatlán, as well as all that which is linked to documentary evidence number 588 and refers to Servicios Notariales QC S.A. On the subject of illicit evidence and its problematic, he cited several jurisprudential precedents from the Third Chamber and the Constitutional Chamber, which emphasize the need to obtain the investigation of the real truth through a fair trial, based on legitimate evidence, which will be assessed by the judges. He also reviews the criterion of the Third Chamber regarding the banking evidence obtained in the Caja-Fischel case and deduces that one is in the presence of an absolute defect that has been ignored by the intervening authorities in the cause known as Caja-Fischel. He considers, therefore, that the direct request from the Costa Rican Public Prosecutor's Office to the Attorney General's Office for it to obtain the evidence, without the intervention of the Guarantee Judge, is inadmissible. In this regard, he considered the emphasis made by the Costa Rican legal system in entrusting the judge with the final decision when fundamental rights of citizens are at stake, especially when the right to privacy, the secrecy of communications, or the inviolability of private documents is going to be affected. The Chamber stressed the need, in accordance with ordinary legislation, to review that the order was substantiated, as well as to individualize the documents on which the order would fall, the name of the person holding them, and the place where they are located. Regarding the criminal activity, it would be essential to assess the verified indication regarding the commission of the act and the weighing of the extremes of the principle of proportionality. The request, as it was formalized by the Costa Rican Public Prosecutor's Office, failed to comply with a requirement that was not a mere formality but was a primary element to allow, under domestic law, the intrusion into the private sphere of a person. The Chamber includes a list of a series of norms of the legal order that would require said judicial intervention. Among them, 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 contained in articles 2 and 3 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications and 107 of the Organic Law of the Judicial Branch. This implies, states the Chamber, that articles 226 and 290 final paragraph of the Criminal Procedure Code, establishing the possibility that the Public Prosecutor's Office requires reports from private persons or public entities, in accordance with what is stipulated, as long as it is not private information protected by article 24 of the Constitution; otherwise, there would be, pursuant to the second paragraph of article 181 of the Criminal Procedure Code, a violation of the right to the inviolability of private documents. He insists that the Mutual Legal Assistance Treaty is an instrument to strengthen and facilitate the cooperation of justice organs in the region, but such cooperation must be carried out with full respect for the domestic legislation of the member countries. The streamlining of procedures could not be, the ruling of the Third Chamber maintains, a way to promote arbitrariness, arrogance, or disrespect for constitutional guarantees and the current internal order. He assures that an ultra-condemnation cannot be reached but rather one that results from a correct introduction of evidence into the process, in accordance with the Constitution and the law in force in the country, and, in its assessment, with strict adherence to the rules of sound criticism. He finally considers, after making some evaluative and doctrinal comments, that the Assistance Treaty is not above the Political Constitution. Therefore, obtaining the evidentiary elements that were brought into the criminal process against [Nombre032] and the other co-defendants, through letters rogatory to Panama and their extensions, without observing the constitutional and legal guarantees that govern to be able to request their obtaining under Costa Rica's internal order, constitutes spurious evidentiary elements, illegitimately incorporated into the process. And through the defective procedural action of an absolute nature, their ineffectiveness is declared, as well as the other evidentiary elements derived directly from them, specifically: the documentary evidence obtained through the Letters Rogatory to Panama and their extensions, the investigation statement of [Nombre032], insofar as it is based on the Panama evidence, among other considerations of interest. The challenger requests that the ground for appeal be granted and that the nullity, the ineffectiveness of the evidence gathered in Panama through the Mutual Legal Assistance Treaty in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama be decreed, as well as all the evidentiary elements directly dependent on it, and, by virtue thereof, as the accusation lacks evidentiary basis, his defendant [Nombre009] be acquitted of all penalty and responsibility for the acts attributed to him and his immediate release be ordered, given that it is unnecessary to remand the process to a new trial under the terms established in the law regulating the appeal of sentences. **He is correct in his claim.** The arguments to analyze this legal problem have already been explained further above, when resolving the appeal filed by Dr. [Nombre012] (A-1). Therefore, the same effects that this determination had for the defendant [Nombre012] must be applied to the defendant [Nombre009], the nullity of documentary evidence No. 588 and all evidentiary elements dependent on it is declared, the nullity of the criminal conviction judgment issued against [Nombre009] is declared, and in its place, he is directly acquitted of all penalty and responsibility. **B. Defects regarding the determination of the fact and the assessment of the evidence to determine the indications that led to the conviction for three crimes of Penalty of the Corruptor for Aggravated Corruption in the modality of Improper Bribery. 1. Violation of the principle of evidence assessment and the rules of sound criticism based on the assessment given to the statement of [Nombre026] regarding the promise that the payment would be made through Servicios Notariales Q.C. S.A. accounts.** Mr. Navarro raised this argument in both the cassation appeal and the appeal by conversion. In the seventh ground based on form, he questions that the Court in its majority opinion sustained the existence of a prior plan in which [Nombre009] participates based on the version of [Nombre026], because according to the ruling, the latter affirmed that he knew from the beginning that the promise would be paid to him through payments or transfers from the accounts of Servicios Notariales QC S.A. He refers to the cross-examination that the defense conducted of [Nombre026] regarding his knowledge of [Nombre009] and the way he became interested in this corporation. On this topic, he maintains in his brief the following: "...When [Nombre026] is testifying, this defender questions him whether or not he knows [Nombre009]. [Nombre026] answers affirmatively and adds that he met my client in the nineties, at a meeting of the Unidad Social Cristiana party, since it seemed that both were militants of that political party. When the defense of [Nombre009] confronted [Nombre026] regarding the investigated facts and their date, he answers NO, THAT IN RELATION TO THESE FACTS HE NEVER HAD CONTACT WITH [Nombre009]. And he adds in summary, KNOWING THAT THE MONEY TRANSFERS CAME FROM A BANK ACCOUNT IN THE NAME OF THE COMPANY SNQC, he undertook the task of investigating who was behind that account, and that is how HE MANAGES TO REALIZE, FIND OUT, LEARN, HAVE KNOWLEDGE, NOTICE THAT THE ONE MANAGING THAT ACCOUNT WAS my client [Nombre009]. But he never said, affirmed, or indicated that PRIOR TO THE MONEY TRANSFERS or delivery of the certificates of deposit, he had knowledge that he was going to be paid through SNQC, as the Court erroneously states, thereby violating the rules of sound criticism, particularly the principles of sufficient reason and derivation in the assessment of the evidentiary elements. This circumstance being a fundamental pillar to attribute to my client his participation in a prior plan for the commission of crimes, it is evident that the ruling presents an insurmountable defect...". He also rejects the court's thesis, adding the detail that there is also no evidence linking his client with [Nombre004] or with [Nombre001], in the sense of having met in meetings, conversations, or in any other way with them. There is no contact between them, much less before the 400-thousand-cell-line project occurred, or before the endorsement of the Comptroller General's Office was produced, or even before the contract between Alcatel and I.C.E. was finalized. He considers that the judicial conclusion harms the rules of sound criticism, not only because there are no elements to think of a possible action within that prior plan allegedly known to him, but also because the rest of the indications the court uses are ambiguous in this regard, such as, for example, the kinship between [Nombre009] and [Nombre015]. Thus, he suggests that if the false statement sustained by the Court—the one stating THAT [Nombre026] INDICATED THAT FROM THE BEGINNING HE KNEW HE WAS GOING TO BE PAID THROUGH SNQC—is hypothetically removed, it is not possible to sustain the conviction of his client as part of a prior plan established for the commission of the crimes of Aggravated Improper Bribery. He suggests, then, that if his position is admitted, what is appropriate, in application of the principle of procedural economy, is to apply the content of numeral 9 of the Criminal Procedure Code, that is, the principle of in dubio pro reo, and in that sense, abide by what most favors his client, that is, that he only made the delivery of the money without participating in the prior plan. If this is so, then his conduct is atypical for not constituting the criminality he is reproached for or, at least, acts of real favoritism that would have the consequences this Chamber decides to give them. Subsidiarily, he requests a remand for a new trial, following the ineffectiveness of the ruling in its entirety and the debate held. **He is correct in his claim.** This Chamber has attentively listened to the statement of [Nombre026] and it is observed that, indeed, he does not affirm that he knew that [Nombre009] would handle the funds he would receive as payment for the gifts that were promised to him, as the Court erroneously assesses in the ruling. In addition to this, and as has already been maintained in relation to the analysis of [Nombre026]'s statement regarding Dr. [Nombre012], the statement of this "collaborating accused" is unreliable and had to be subjected to a critical analysis of its consequences, not only because of the constant variations in the content of what happened, but also because of the significant modifications of the facts in which he incurred. His statement has already been recognized by this Chamber as unreliable, not only because of the various versions of the facts offered, but because there is certainty that his was a statement interested in achieving impunity, which should have subjected the majority court to a stricter duty to be suspicious and submit to a solid and deep criticism all independent evidentiary elements that confirmed or corroborated that, in effect, Mr. [Nombre009] was part of a prior plan to corrupt public officials of ICE. The judgment at folio 1130 and following maintains that there was a prior plan built by [Nombre015], [Nombre035], [Nombre009], and [Nombre018] to channel resources from Alcatel CIT, making its officers believe that said money was for the payment of consultancies signed with the companies Servicios Notariales Q.C. S.A. and Intelmar S.A. The majority opinion locates Mr. [Nombre009] as a key piece for the payment of the gifts, by virtue of his link to the Company Servicios Notariales Q.C. S.A.

and due to the professional and consanguineous ties with officers of that company, despite him not being the legal representative of that legal entity. The judgment manages to place him, as of August 2001 (folio 1142), as Vice President of the corporation and, therefore, involved in the payments made from that date onward. Specifically, at the time when his wife, Mrs. [Nombre074], a teacher by profession, was the owner of the share capital of Servicios Notariales QC S.A., clearly a person who had no connection with the line of business of the legal entity, and therefore a mere symbolic representative of the company. [Nombre009] is also linked to [Nombre015], since the wife of Mr. [Nombre015] is the sister of [Nombre009] (folio 1143 of the judgment). It is for this reason that the judgment places [Nombre009] in charge of the corporation's activities as of September 2001, in fact, he is placed giving instructions to the Private Banking Department, leaving Mrs. [Nombre074] as a simple front person without greater control over the activities carried out. This is why this Chamber considers that, along with the statement of [Nombre026], all these circumstances were decisive in placing [Nombre009] at the center of the executive plans for corruption of officials, making him a key piece in getting the payments to the dishonest officials. However, there is no proof that [Nombre009] directly participated in that common plan, beyond the continuation of the consulting activities that the Corporation had already been providing for Alcatel since 1990. Consulting activities that also encompassed the management of funds, which of course involved the payments made during the period in which the intervention of this corporation for the payment of gratuities is being investigated, but also for other contracts and activities of the company that have not been alleged to be illicit. The judgment places these consulting contracts as a mechanism to conceal the real reason for which these funds were received, but the truth is that these contracts were signed at the beginning of 2001 (Fact 55 of the accusation) around the alleged devising of the corrupting plan. However, there is a continuation of the activity already being provided for Alcatel, and the judgment does not find how the continuation of that line of business of the company, which already managed millions of dollars for Alcatel, could not have received orders, decontextualized from the general corrupting plan, to honor consulting contracts, which appeared to be normal practice for Alcatel as indicated by some Alcatel official witnesses at trial, such as Mrs. [Nombre075]. In any case, the judgment is not convincing regarding the alternative thesis now offered by the defense, that [Nombre009]'s activity was decontextualized from the corrupting plan and could have been, at least, a material facilitation that was not charged. The lack of substantiation in this regard, and the support for the common corrupting plan, which is not based on more than an overall vision that the court constructed in its majority vote, is not sustained by the elements that have been evaluated, very specifically with the statement of [Nombre026], so, in application of the principle of in dubio pro reo, [Nombre009] would have to be acquitted of all penalty and responsibility for the three illicit acts of Corruptor's Penalty for Aggravated Corruption in the modality of Improper Bribery that have been attributed to him. 2. Rejection of important evidence for the technical defense of the defendant [Nombre009]. In the eighth ground as to form of the cassation appeal and in the tenth ground of the appeal filed by attorney Mario Navarro on behalf of [Nombre009], a VIOLATION OF DUE PROCESS AND RIGHT OF DEFENSE IS ALLEGED DUE TO THE REJECTION OF IMPORTANT EVIDENCE FOR THE DEFENSE. He argues that during the trial period, the company Alcatel and the Government of the United States of America, specifically the United States District Court for the Southern District of Florida, pursuant to case 1:10:CV=24620, DLG, with the Securities and Exchange Commission as Plaintiff and Alcatel Lucent S. A. as Defendant, negotiated that from December 2001 until 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 officials of the government of Costa Rica to obtain or retain three telephone service contracts in Costa Rica for an approximate amount of three hundred three million dollars. This agreement between the Government and the Company was brought to the attention of the parties by the Instituto Costarricense de Electricidad in the month of January two thousand eleven, after the holiday recess. This evidence, the defender says, was transcendent for the legal positions that had been maintained in relation to Mr. [Nombre009]. Firstly, because it unmasks the company Alcatel as a company linked to corrupting activities to achieve and maintain public contracts in the field of telephony. Secondly, it places Alcatel's activity with the facts investigated between the beginning of two thousand one and October two thousand four. Thirdly, and this is a thesis repeated throughout the appeal, that the sums received by Servicios Notariales QC S.A. did not solely originate from the 400 thousand lines contract, but also from other contracts, these lawful ones that were not related to the “400K” contract. He says that this settlement document between Alcatel and the government of the USA demonstrates what the defense maintained at trial. He maintains that the other defenders opposed this document except for the defense of [Nombre009]. The Court, however, rejects it as untimely and for not being translated. The representatives of ICE try to have it admitted, later, already translated, however, the Court rejects it as untimely. He considers, finally, that with this evidence, it is possible to sustain the defensive thesis that had been presented in debate, which distorts the version that [Nombre075] had given, who defended the Alcatel company at all times, and which was essential evidence for the conviction of his client. This evidence, in a word, as maintained by the appellant, would call into question the factual inner workings of the judgment and it could no longer be maintained that “…SNQC had received more than fourteen million dollars for the processing of the four hundred thousand cell lines and to pay bribes for that contract…” It is for this reason, and due to the injuries alleged against due process and the right of defense, by rejecting transcendental evidence, that he requests the ineffectiveness of the entire ruling be declared and a retrial be ordered. He considers that the alleged defect is absolute and did not require a prior objection. This aspect raised by the defense is, in effect, an absolute defect, and it is appropriate to declare it so, due to the injuries it implies to the right of defense at trial and to due process. The mentioned evidence, in effect, is important for discussing the status of Alcatel from a company deceived by its representatives, to a multinational conglomerate that used corrupting mechanisms to achieve its business objectives. The settlement with the Government of the USA was of interest both for establishing the facts in relation to the intervention of Servicios Notariales QC S.A. and the management of funds carried out during the time of the investigated facts, but also regarding the possibility that the factual vision presented by the defense had solidity. That is, that there were lawful contracts, processed in advance and justified in the line of representation, advisory, consulting, and administration carried out by this corporation for Alcatel, which brings elements for discussion of great relevance and that should have been analyzed in detail by the ruling in question. The non-admission of this evidence for better provision, duly translated, and not previously known, since it was generated at a stage of the process that the parties could not control, was relevant to the interests of the defense and should have been admitted by the trial court. It is for this reason, that on this ground the conviction judgment must also be annulled in relation to [Nombre009]. 3. Erroneous application of Substantive Law. Violation of the Principle of Legality. In the twelfth ground of appeal by attorney Mario Navarro, an incorrect application of the substantive law is raised in relation to the alleged criminality carried out by [Nombre009] in relation to the co-defendant [Nombre001]. He begins his argument by transcribing Facts number 128, 129, 130, and 131.

“ 128) The accused [Nombre001] began working at the end of the year 2000 for the I.C.E., as an Executive Assistant of Superior Administration in the Executive Presidency, an appointment that was formalized as of January 1, 2001. 129) Within his functions, he was responsible for attending to specific matters of the Executive Presidency such as, analyzing documents submitted for the knowledge and approval of the Executive President, providing advice and recommendations on these, coordinating with the different dependencies of the Institute matters related to the execution of projects and guidelines, coordinating and participating in the special commissions formed, collaborating in the preparation and implementation of programs and projects promoted by the Presidency, and representing the I.C.E in different governmental and non-governmental organizations, related to the field of electricity and telecommunications. Also, within the projects he was in charge of, the abbreviated procedure 1-2002 for the leasing of the 400,000 GSM cell lines stood out. 130) From his entry into the institution, the accused [Nombre001], as assistant to the Executive Presidency, became the person in charge of accelerating matters related to the topic of telecommunications. Subsequently, the accused [Nombre001] was appointed to preside over a high-level commission composed of an interdisciplinary group of professionals who had under their responsibility the study and execution of the 400,000 thousand lines project, together with [Nombre027], member of the Board of Directors and the officials [Nombre061], manager of the Business Unit for Mobile Services, and [Nombre052] in his capacity as Executive President. 131) Without specifying a date, but in the period between the end of the year 2000 and the beginning of 2001, the defendants [Nombre015] and [Nombre035] asked the accused [Nombre001] to carry out the necessary actions within the scope of his functions as advisor to the Executive Presidency of the I.C.E., and person in charge of the execution of the 400,000 lines project, to make said contracting effective by favoring Alcatel; in exchange for the above, [Nombre035] and [Nombre015] promised [Nombre001] the delivery of a gratuity consisting of money, the exact amount of which was not set at that time. Said promise was accepted by the accused [Nombre001], it was also agreed that the delivery would be conditional upon the effective awarding of the offer that Alcatel would present to the I.C.E. 132) For having fulfilled the defendant [Nombre001] with the agreed actions, once he, together with other I.C.E. officials, managed to open the tender for the purchase of cellular telephony and the awarding of the contract for the 400,000 GSM lines in favor of Alcatel, as previously agreed with the defendant [Nombre015] and the indictee [Nombre035], he received the promised gratuity corresponding to a percentage of the contract that Alcatel obtained with the I.C.E. , a payment that was made in a segmented manner through the intermediation of the co-defendant [Nombre009] with the funds originating from Alcatel Cit".

It is based on these facts that have been taken as proven, that [Nombre009] is attributed the commission of a crime of corruptor's penalty for aggravated corruption in the modality of improper bribery, in relation to [Nombre001]. As already analyzed when hearing the appeals on behalf of [Nombre001], it is not known with any certainty what were the supposed actions that were asked of [Nombre001] to carry out with the objective of achieving Alcatel's objectives in the 400 thousand cell lines contract, so the criminal participation of [Nombre009] in the act attributed to [Nombre001] is, at least, uncertain and improbable. This ground must be upheld. As analyzed profusely when hearing said appeal on behalf of [Nombre001], the awarding procedure was pristine and in accordance with the law, and the intervention of [Nombre001], due to his field of experience and expertise, had nothing to do with the technical and legal aspects that could have a final impact on the granting of the 400 thousand lines to Alcatel. In fact, and as this Chamber analyzed previously, it is not known what role [Nombre001] was expected to perform in relation to the internal decision-making procedure at ICE, nor about the form and content of an abbreviated procedure that, in essence, was not favorable nor did it provide certainty to Alcatel. For this company, the direct purchase procedure was more convenient, in terms of the certainty of its participation. [Nombre001] was in charge of coordination functions that had nothing to do with the direct purchase process, and as was observed in the succession of decisions by the Board of Directors of ICE, the path towards an abbreviated procedure was defined by the Contraloría General de la República and not by ICE. The admission made by [Nombre001] of having received funds from Alcatel does not allow for determining, either, if said sums were delivered rather as payment for an act proper and concrete to his functions. The uncertainty in this regard opens a great number of possibilities of criminal classification ranging from the receipt of gratuities for an act performed to Illicit Enrichment itself, but not necessarily to improper bribery. That concrete act that was asked of [Nombre001], as interpreted by the appellant, was not pointed out in a clear, precise, and concrete manner by the court. If this is so, and there is no precision about the fact, there would also be doubt as to whether [Nombre009] was responsible for the crime of corruptor's penalty, since both facts are intimately related, and it is for this reason that he must be acquitted of all penalty and responsibility for the facts attributed to him in relation to [Nombre009]. 4. Forfeiture in favor of the State of various properties. In the third ground as to form of the cassation appeal by attorney Mario Navarro on behalf of the accused [Nombre009], an ERRONEOUS AND INADEQUATE SUBSTANTIATION IS ALLEGED. VIOLATION OF DUE PROCESS AND THE RIGHT OF DEFENSE DUE TO ERRONEOUS APPLICATION OF ARTICLE 110 OF THE PENAL CODE. The judgment decrees the forfeiture of the following properties:

A.4) Partido de Heredia registered under the Folio Real system, Registration N° [Valor025], Sub-Registration [Valor018] in the name of the company Punto de Negocios LQC Sociedad Anónima. Company belonging to the accused [Nombre009] who proceeded to provide it with the illicit funds originating from Alcatel Cit, and with those funds he carried out various banking transactions and businesses of different kinds, such as the purchase of the described property.

• 4)Of the shares of [Nombre009] in the company La Selva de La Marina S.A., owner, among others, of the properties registered in the Public Registry under the Folio Real system Registration N° [Valor030], Sub-Registration [Valor018] and Registration N° [Valor031], Sub-Registration [Valor018]. Real estate properties that were acquired with illicit funds originating from Alcatel Cit.

According to the appellant, the court omitted to substantiate and reason why it considered that these assets came from the illicit activity supposedly attributed to the defendant. In a word, the causal link between the commission of the act and the assets upon which the forfeiture will fall is not demonstrated. In the same way, there must be certainty that there is no third party or the accused himself with rights over said assets. According to the challenger, from the economic studies carried out, it can be deduced that there would be rights of other persons over the mentioned assets:

“…And it is that as indicated in its point 4.4 of the Expert Report N° 202-DEF-445-05/06 (Evidence N° 619) the company Punto de Negocios LQC S.A was incorporated on April 8, 2002 by the accused [Nombre009] and [Nombre076], before Notary [Nombre077]. The share capital was made up of the sum of one million colones represented by one hundred common, nominative shares of ten thousand colones each, of which [Nombre009] subscribed 99 shares and the partner [Nombre076] one share. According to a notarial certification of 2:00 p.m. on January 27, 2003, [Nombre009] holds the position of President with Judicial and extrajudicial representation of the company Punto de Negocios LQC, S.A. A company that is registered in the Mercantile Section of the Public Registry at folio 196 of volume 1497, entry 98. See Annex 13 of report 202 folio 170.

And in point 4.3.1 of the same report, it is indicated by the experts of the Economic and Financial Crimes Section that it was corroborated that the Company Selva de La Marina, legal identification number N° 3-101- 345347 was incorporated on May 5, 2003 by [Nombre078] and [Nombre079] before the Notary Office of [Nombre077]. The share capital was established in the sum of 50,000,000.00 million colones represented by 50,000 shares of one thousand colones each, of which Mr. [Nombre078] subscribed 49,999 shares of one thousand colones each and [Nombre079] one share of one thousand colones.

It is from the same evidence incorporated into the adversarial proceedings, that it is easily inferred that the assets whose forfeiture the Court is ordering, are duly registered in the name of corporations in which, apart from my client, there exist other "partners" with an interest in them. Jurisprudence and doctrine have determined that the Court ordering the forfeiture must be "very cautious and zealous at the time of adopting such a decision" so as not to affect the rights and guarantees, not only of the accused, but also those of third parties unrelated to the process. Also, that, "in order not to affect the rights of all those persons who have no relationship with the illicit act", mere probability or presumption is not sufficient, rather "absolute certainty is required, so as not to violate the principles that inform due process, such as: the principle of legality, of innocence, of defense, of fair trial, of guilt, etc.", as has been ordered by the Third Chamber of the Supreme Court of Justice in judgment 865-97 of 10 hours 20 minutes of August 22, 1997…” In support of his thesis, he cites a precedent of the Court of Cassation, Vote No. 00377 of 13 hours 45 minutes of November 16, 2010, which maintains the necessity of establishing the causal nexus existing between the assets upon which the forfeiture falls and the commission of the punishable act. In the same sense, he estimates, the Third Chamber of the Supreme Court of Justice pronounces, when in its Vote No. 00121 of 2010, after entering into some considerations on forfeiture and its legal nature, that its issuance requires a solid substantiation according to articles 142, 143, 363 subsection b) and 369 subsection d) of the Code of Criminal Procedure. He points out that there is no such solidity in the substantiation of the ruling under examination, it is not observed what the argumentation followed by the Court was to decree the forfeiture that so affects the interests of the defendant as well as those of third parties, which the ruling itself recognizes existed. This ground must be upheld. The Court does not explicitly state the connection of the assets it decrees for forfeiture with the illicit activity of [Nombre009], nor whether there were rights of third parties over them. There is also no certainty whether these properties were acquired with funds from Alcatel, or if the course of their acquisition was made with other assets originating from the defendant's professional activity or line of business. The latter, because the source or origin of the acquisition of these properties and assets in general could come from sources independent of those investigated in the case. There are elements that allow us to suppose there was a relationship between Alcatel CIT and Servicios Notariales QC S.A. since the year 1997, which proceeded from the development of contractual consulting activities that have not been questioned.

The sources of acquisition of those assets could, then, be part of the lawful activities that were carried out in years prior to the period investigated in this case. In other words, in order to decree the confiscation (comiso), there would need to be adequate substantiation in the judgment demonstrating that the source of acquisition of these assets proceeds from the corrupting activity that the majority vote attributes to Alcatel and that it proceeds, presumably, from the criminal plan developed by [Nombre015] and [Nombre035]. In the same manner, it must be demonstrated that all of the flow of money, or part of it, comes from a crime, and if so, whether those economic flows were used to purchase those assets now being confiscated (comiso). In the same manner, that such a decree does not affect the rights of those persons who have no relationship with the illicit activity. In this regard, and rightly so, the appellant points out that there were economic movements that reached the assets of Bufete Valerio Casafont, and said movements were not classified as illicit, and their source was Servicios Notariales QC S.A. In other words, what was paid to this firm should be considered, therefore, a lawful activity whose source of payment is the funds that Servicios Notariales QC managed for Alcatel CIT. Furthermore, citing Article 110 of the Penal Code is not sufficient substantiation for a confiscation (comiso) of such proportions, without even leaving a record of the certainty of the origin of these assets from the criminal dealings of the defendant. The defense's thesis is also supported by the demonstration made of payments of large sums to Macro Investment or to Tele Investment that also come from the accounts managed by Servicios Notariales QC S.A., as was demonstrated at trial with the aid of EVIDENCE 619, Expert Report No. 202-DEF-445-05/06 from 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 bundles of evidence: 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, No. 7 with 251 folios. According to the appellant, with these elements the entirety of the origin and destination of Alcatel Cit's money, delivered by [Nombre009] to the defendants in the case, is verified, but the Court did not take care to analyze this evidence, and, disregarding that it was private funds managed by the company Servicios Notariales Q.C., decreed the confiscation (comiso) of two assets, specifically the PERCENTAGE IN A COMPANY CALLED LA SELVA DE LA MARINA and a dwelling belonging to PUNTO DE NEGOCIOS LQC S.A., acquired with funds that have nothing to do with THE OBJECT OF THE CRIME OF IMPROPER BRIBERY (COHECHO IMPROPIO). It is for the foregoing that the confiscation (comiso) of the described assets must be revoked and it is appropriate to order the competent court to return the confiscated properties and shares. **5. The questions regarding the issues derived from the civil actions filed against the defendant.** The appellant, also acting in the capacity of 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, based on the cited regulations, within the same legal timeframe READAPTED THE ADHESION ALREADY FILED IN ITS PROCEDURAL MOMENT, to an appeal, and added several grounds regarding the civil aspect of the judgment. A first argument concerns the lack of reasoning regarding the rejection of the award of costs in the following terms. FIRST GROUND OF APPEAL ON THE CIVIL ISSUE. Lack of reasoning regarding the rejection of the award of costs. This violates the provisions of articles 39 and 41 of the Political Constitution, 363 and 369 of the Criminal Procedure Code. It raises a second ground, which has to do with the fact that its clients have had to endure a seven-year process, with civil claims and seizure of assets. Thus, it is not that there were no vanquished or victors, but on the contrary there are individuals who have had to endure the condition of defendants for a long period of time. That is why it demands that the conduct of the civil plaintiffs should have had consequences. It rejects that one can speak of plausible reason to litigate, if the causal link between the charged facts and those civil claims could never be established. It was proven that its clients did not receive funds from ICE or any other public institution. They were private funds. That is why it requests that the civil plaintiffs: Instituto Costarricense de Electricidad and the State be ordered to pay the costs of the process that brought the civil defendants to this stage, including the appeal. **In a third ground, it claims erroneous interpretation of article 277 of the Civil Procedure Code, regarding the compensation for damages (indemnización de daños y perjuicios).** It postulates its reasons as follows:

“…It is the criterion of this representation that the interpretation given by the Trial Court to article 277 of the Civil Procedure Code is erroneous, and the jurisprudential citation on which it supports its thesis is undoubtedly inadequate.

The judgment essentially argues that because a decision on the merits regarding the civil actions was omitted, the lifting of the decreed seizures and the rejection of the award of damages (daños y perjuicios) are in order. Considering in this regard the possibility of the parties to resort to the civil jurisdiction to settle their disputes. It being impossible to extend the scope of the cited article 277 by way of interpretation, as that would be an extensive application of a punitive norm.

In the first place, the Court's decision to grant the plaintiffs the possibility of resorting to the ordinary civil jurisdiction, presumably in pursuit of their interests, is unfortunate. That decision is admissible insofar as the plaintiff has not endured everything that the civil process within the criminal process entailed. The procedural principle of "election of jurisdiction" is unknown to the Trial Court. The plaintiffs decided to choose the civil action route within the criminal process in pursuit of their interests. So much so, that there are even cassation appeals pending from the civil plaintiffs. The fact that the Court dismissed their claims due to defects in the CLAIMS, cannot be the basis for referring the parties to a subsequent civil claim. The plaintiffs exhausted the criminal process avenue for the probable compensation; that they did not know how to do it does not give them the right to remain authorized to do so in the ordinary civil jurisdiction. That interpretation made by the Court truly violates article 2 of the Criminal Procedure Code. The Judge knows the law, and under that stance, it is evident that the Court is benefiting one of the parties to the process, erroneously, due to their poor performance…” It insists, the complaint was DEFINITIVELY DISMISSED IN SENTENCE and that is why the lifting of the seizures was ordered and, in such case, the consignment of cash to the defendants as damages (daños y perjuicios), as fixed compensation, would proceed: that is the content of the norm in question and its spirit. It emphasizes that its clients have endured seven years of proceedings, with seizures included. A tortuous process that had to wait until the end to hear, in closing arguments, the claims of the civil plaintiffs, concerning legal and natural persons who had nothing to do with public funds. Nor could the causal link be established between the civil defendants and the actions of the convicted individuals. It also questions that the door is opened for the civil plaintiffs to go to the civil jurisdiction to once again raise their claims, even though they had already chosen a forum to discuss those points. The civil complaint was rejected, except for what this Chamber resolves when analyzing the cassation grounds raised by the civil plaintiffs. Therefore, it requests that the appeal be granted for the reasons stated, that the ruling be revoked insofar as it REJECTS the fixed compensation as damages (daños y perjuicios) regulated by article 277 of the Civil Procedure Code, and that the return to the Criminal Trial Court be ordered so that it makes the disbursements to the civil defendants in the proportion corresponding to them according to the claims raised. **The issue of the award of costs and the issue of civil actions must be elucidated in a new trial in this regard.** This Chamber has already ruled on the issue of compensatory civil actions, the absence of an award of costs, and the interpretation made by the majority court on this issue, at the time of resolving the appeal by Christian Arguedas on behalf of Dr. [Nombre012]. It was considered that what was resolved on the issue was a very clear denial of access to justice based on formalities that have no basis in Article 112, paragraph d) of the Criminal Procedure Code, an error that must be corrected. The lack of a decision 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 remand trial, a decision must be made regarding the issue of costs, and whether or not there was a plausible reason to litigate: the failure to decide on the merits of the civil actions caused an error that affects the definition of the costs issue, which undoubtedly causes grievance to the parties. That is why, when resolving Mr. Arguedas's appeal, it was considered that the effects of his challenge benefit the other civil co-defendants, since it is not based on exclusively personal grounds. That is why the judgment has already been annulled in its civil aspect, insofar as it ordered to omit a ruling regarding the substantive right discussed in relation to the civil actions brought, as well as what was resolved on costs, and the remanding of the process is ordered to the competent authority for the new substantiation of those points.

**XI.- THE APPEAL FILED BY ATTORNEYS ERICK RAMOS AND FEDERICO MORALES ON BEHALF OF THE ACCUSED [Nombre015] IS RESOLVED.-** **1. As for the four crimes of Penalty of the Corruptor:** Of the issues proposed by attorneys Erick Ramos and Federico Morales, representing Mr. [Nombre015], their disagreement with the judgment has been expressed through various writings, the first of which is a 'cassation' appeal that was filed and subsequently in an appeal by conversion. This Chamber proceeds to resolve the grounds that by themselves imply the nullity of the judgment and the acquittal of the defendant for four crimes of PENALTY OF THE CORRUPTOR, committed to the detriment of Probity in the Exercise of Public Function. **First Section.- Defects that by themselves imply the nullity of everything resolved. A. Prescription of the cause. In the first ground regarding the form of the appeal, attorneys Erick Ramos and Federico Morales allege violation of due process because the cause has prescribed**. They indicate that the exception of prescription was raised in various instances, and was rejected. The reason expressed by the Trial Court of Merit to dismiss the prescription was based on the declaration of complex processing of the cause that was issued on March 3, 2006, with the judges considering that by virtue thereof the reduction of the prescription term could not apply, by virtue of the provisions of the third paragraph of Article 376 of the procedural legislation. According to the defense, procedural acts are governed by the law in force at the time they occur and take effect according to that law. Article 376 CPP would not be giving any possibility for the declaration of complex processing to make its effects retroactive nor to interrupt the prescription. Thus, the prescription of the facts attributed to [Nombre080] would have elapsed on the 14th day of April 2007; without any of the interrupting acts established by the criminal procedural law having occurred by that time. They request that this Cassation Appeal be granted based on this ground and it be declared that the criminal action was extinguished by prescription on April 14, 2007. **They are right in their claim.** The defense lawyers propose that the prescription of the cause should have been declared from the moment the issue was alleged in the process, as the fatal term that extinguishes the criminal action had elapsed. Despite the fact that in principle it is clear that the public criminal action was extinguished in the case at hand in favor of [Nombre015] and as a consequence of its prescription, the sentencing Court reasoned opportunely and based on what is established in Article 376 of the Criminal Procedure Code, which broadly establishes that when the processing of the cause is ordered as complex in the investigation and intermediate stage, the reduction of the prescription term by half does not apply, according to what is established in Article 33 of the Criminal Procedure Code, in the sense that in this case the declaration of complex processing of the cause prevented the claim for extinction of the criminal action from being resolved favorably. The main argument of the appellants is that the declaration of complex processing of the cause does not modify the reducing effects of the prescription term that had already operated in their time in favor of Mr. [Nombre015] in the year 2004. It is recorded in the case file, the appellants maintain, that [Nombre015] was questioned for the facts subject to this process at 14:30 hours on October 14, 2004. Therefore, the expiration term for the criminal action would expire on April 14, 2007, given that the next act that according to the strict application of the law suspends the prescription is the setting of the Preliminary Hearing; which in this case was not issued until September 10, 2007. According to this starting point, with the investigative statement (declaración indagatoria) of the accused, the prescription term would have been reduced by half, as ordered by the Criminal Procedure Code. The declaration of complex processing of the process could not, therefore, come to affect what had already been produced in accordance with the general rules imposed by the procedural legislation. They cite in their favor the doctrine of Prof. Javier Llobet in his work “Código Procesal Penal Comentado”, who maintains that if the reduction of the prescription term by half has already operated, this should govern for the rest of the process, and not that it is later said that said reduction has not operated, as it would be like a kind of “manipulation” of the prescription term, with the retroactive application of the declaration of complexity. **This Chamber had already ruled against the retroactive effects that have been given to the declaration of complex processing of the cause. The reasoning that supports this conclusion has already been expressed when resolving Dr. [Nombre012]'s appeal, to which it refers to avoid unnecessary reiterations. It is appropriate, therefore, to declare the cause followed against [Nombre015] prescribed and to absolve him of the four crimes of penalty of the corruptor that were attributed to him. B. Unusable (illicit) evidence. The Court used information obtained from the statement of the co-defendant [Nombre026], who provided that information for the conviction under the protection of an undue procedural advantage.** In the second ground of the defense appeal for [Nombre015], the non-observance and erroneous application of procedural law is alleged, as illicit evidence has been used to convict their client. They consider that the information from [Nombre026] was generated from an agreement with the Public Ministry that was constructed in a manner contrary to due process, because the prosecutorial discretion (criterio de oportunidad) that benefited him was accepted, disregarding procedural regulations. Passages from the judgment are cited where it is evident that the information provided by [Nombre026] was effective in sustaining the conviction:

“… in any case, here [Nombre009] was indeed present from its planning because it had to be known prior to the corrupt promises how the bribes would be paid and that was his task. Remember that [Nombre026] mentioned that on one of the occasions when he asked about Servicios Notariales QC S.A., [Nombre015] told him that was the way they had devised so that everyone would be protected; that is to say that in advance of the plan's implementation, the formula to achieve that protection was already known.” (p. 1157) “Faced with this picture one must ask: If the equipment had been donated by Alcatel since 1998 and that meant it was already operating by 1999 and 2000, why was it not authorized to participate in the direct contracts where Lucent and Ericsson were suppliers? Why, if they had said equipment in operation, had Alcatel's participation in the last contract for the 100,000 cellular lines not been authorized? Why, if it was argued that genuine equipment, compatible with ICE's cellular system, was required, among other reasons, to exclude Alcatel as a bidder, was it now considered as a direct awardee for having genuine equipment, without substitutes, etc.? Why did it now have the legal and technical backing? What motivated the board of directors now to vary the position it had maintained for years? The only plausible answer this panel finds is that regarding directors [Nombre004] and [Nombre026] the remunerative promise had already been made; the latter indicated so and the former not only intervened earlier in the cited sessions where Alcatel's participation was denied, but in this session 5271 he expressly manifests himself supporting the contract and justifying his statement in notes signed by [Nombre061] and the Legal Advisory.” (1164) “[Nombre026]'s statement is completely congruent with the evidence presented and here it is relevant (although this reference has been sporadic for the assessments made in this considerando) to point out how at the time the illegal remunerative proposal was presented to him by [Nombre035] and [Nombre015] (in early December 2001) three requests were formulated in exchange for the bribe: his help for the technological migration, the public tender, and the awarding in the event said tender occurred. The various technical defenses of the accused, including Ms. Valenciano, Mr. Navarro, Mr. Gairaud, Mr. Ramos, Mr. Morales, and Mr. Villalobos state that such statements by [Nombre026] are implausible because the technology migration took place in May 2000, although Mr. Navarro claims it dates back to 1998 -without elaborating on explanations- and Mr. Ramos goes further back in time, what is true is that -fundamentally- they coincide in pointing out that if the described decision was prior to the promise, it lacked all logical sense for the offer to be based on that purpose.

However, [Nombre026]'s assertions have been fully ratified by this court based on the evidence items that will be specified.” (1167) “That is why it is very revealing that when there is a threat that this agreement will be questioned, [Nombre015] conveys his concern to the board and asks [Nombre026] that when they attempt to back out of the tender, he must attend session 5277. That is to say, [Nombre015] not only knew in advance that the agreement was going to be questioned (Evidence No. 630, “CD-ICE letter,” dated March 8, 2001), but also requests [Nombre026]'s intervention to prevent it, as he stated and his participation is corroborated in the minutes of the respective session where [Nombre026] speaks in favor of maintaining the proposal and where, in fact, [Nombre026], [Nombre052], [Nombre066], and [Nombre004] vote in favor of maintaining the contract, while [Nombre027] is supported by [Nombre067] and [Nombre055], meaning that the decision is made by a narrow majority. This letter of March 8, 2001 also reflects that at that time the situation for Alcatel within ICE continued to be complex. [Nombre026] declares that he did not go to the first session of the directive council, but that he had already met with [Nombre015] and [Nombre035] by that time, that is why he speaks in favor of direct purchase, because it was part of the commitment assumed for migrating and indeed it is corroborated that he does so in session 5277.” (1172) “- Before receiving the money, the accused [Nombre015] communicated this situation, so that logic determines that there was prior and fluid communication between [Nombre015] and [Nombre009] to coordinate the pertinent matter to the extreme that, indeed, the transfer of funds subsequently occurred, which happened in a similar manner on repeated occasions, as [Nombre026] narrated.” In accordance with what [Nombre026] reported regarding that practice of [Nombre015], the deponent [Nombre081] explained that…” (1185)</span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:0cm;margin-right:42.55pt;margin-bottom: 0cm;margin-left:42.55pt;margin-bottom:.0001pt;text-align:justify;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>“Regarding the intervention of [Nombre035] and [Nombre015], note that [Nombre026] himself stated that on all seven occasions when funds were transferred to him or certificates were delivered, [Nombre015] asked him about the circumstances of the delivery, and in the cases where it was by transfer and he provided the account number, the money effectively arrived there, which reveals that [Nombre015] communicated such information to [Nombre009] as the person in charge of said account. [Nombre026] also stated that when he asked [Nombre015] who SNQC S.A. was, he replied that it was the system they had devised so that everyone would be protected, thus denoting a planned and joint participation.” (1258)</span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>Furthermore, the appellants insist in their brief, there is an express "Considering" (Considerando) of the judgment (cf. Considering XI, point A.) where the judges justify the use of the information introduced by [Nombre026]. They accompany their argument with a description of circumstances and procedural moments that demonstrate their assertion: </span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;text-indent:34.0pt;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>“…<u>Description of Procedural Actions</u></span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> FIRST: On January 31, 2006, the person who appeared as a cooperating co-defendant (coimputado colaborador) in the trial, Mr. [Nombre026], his defense attorney EWALD ACUÑA BLANCO, the assistant prosecutors CRISS GONZÁLEZ UGALDE and CARLOS MORALES CHINCHILLA, as well as the Deputy Prosecutor WARNER MOLINA RUÍZ, signed an agreement for the application of an opportunity criterion, pursuant to the provision of article 22, subsection b) of the Code of Criminal Procedure (as stated in evidence 776, legitimately incorporated in due course into the Trial). In the same vein, see what is recorded in the challenged ruling at folio 1653.</span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> SECOND: In accordance with said agreement, the Public Prosecutor's Office (Ministerio Público) undertook to request in favor of the cooperating defendant [Nombre026] that his prosecution be totally dispensed with in case 04-006835-647-PE. The foregoing was conditional upon the cooperating defendant [Nombre026] giving testimony at trial —as effectively occurred— a statement similar to the one duly given before the Public Prosecutor's Office and which constitutes the ANNEX of the aforementioned opportunity criterion. Likewise, on the condition that said statement not be disproven by other evidentiary elements that make it appear false. And the prosecutorial action was also conditional upon the information provided by [Nombre026] allowing the participation —among others— of the defendants in this same case [Nombre015], [Nombre035], [Nombre012], and [Nombre018] to be accredited at trial. </span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> THIRD: For the materialization of the referenced agreement, the Public Prosecutor's Office, represented in that act by Prosecutors Marcela Morera Molina and Amelia Robinson Molina, petitioned the Criminal Court of the Intermediate Stage (Juzgado Penal de la Etapa Intermedia) of the Second Judicial Circuit of San José, by brief dated May 30, 2007, for the application of an opportunity criterion for collaboration. In said brief (which we understand also forms part of evidence 776), the Prosecution includes in the section called "Statement of Facts" (Relación de los Hechos), following the numbering from 1 to 116, a series of facts and actions that supposedly constitute the object of the investigation. We affirm the foregoing because on folio 1 of the referenced brief, the Prosecution records: “As a result of this investigation, the facts described below are considered established.” From which it follows that these are the facts being investigated in case 04-6835-647-PE. </span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> FOURTH: Similarly, the File for the Application of the Opportunity Criterion (Legajo de Aplicación del Criterio de Oportunidad) also contains the brief dated February 1, 2006, in which Attorney Warner Molina Ruiz, in his capacity as Deputy Prosecutor, authorizes the application of the opportunity criterion pursuant to subsection b) of article 22 of the Code of Criminal Procedure in favor of the defendant [Nombre026]. In said document, the Deputy Prosecutor refers summarily to the facts under investigation in said case (specifically at folios 2 and 3 —folios 33 and 34 of the File— and at folio 8 —39 of the File).</span></i><span lang=ES-CR style='color:black;mso-ansi-language: ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> FIFTH: The referenced actions led to the issuance of the ruling at 9:51 a.m. on June 1, 2007, signed by Attorney Ana Gabriela Sánchez Arroyo, in her capacity as Criminal Judge of the Second Judicial Circuit of San José. Said ruling refers to the general identifying data of the case and, subsequently, establishes in a "Considering I" (Considerando I), called "Statement of Facts" (Relación de Hechos), exactly the same facts the Prosecution describes in the section of the same name, from point 1) to point 116). In "Considering II" (Considerando II), it is indicated that the action promoted by Prosecutors Marcela Morera Molina and Amelia Robinson Molina has the approval of the Deputy Prosecutor. Subsequently, a "Considering III" (Considerando III) called "On the Merits" (Sobre el Fondo) is included, in which the Judge indicates the nature of the requested opportunity criterion and examines the legal requirements for its admissibility. Since the ruling practically completely lacks due reasoning, it suffices to note that it refers, as facts or conduct assessed and evaluated for determining greater culpability (reprochabilidad), to the conduct of [Nombre026] and the conduct of [Nombre012]. Additionally, the jurisdictional decision refers to the facts investigated in this case in relation to [Nombre015], [Nombre035], [Nombre018], and [Nombre012], which are clearly linked to the contracting of the 400 thousand cellular telephone lines, of which extensive knowledge was obtained in the oral and public trial that preceded the issuance of the Judgment now being challenged</span></i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'>…” According to the challengers' thesis, the information that the judicial authority must receive must be complete, especially regarding the matters under investigation, so that it can effectively exercise its oversight over the activity of the Public Prosecutor's Office. The latter, especially, in the weighing of the lesser culpability of the effective collaborator. This weighing of "lesser culpability," the defense attorneys suggest, has been chosen to be carried out based on a comparison of the conduct charged. According to this, <u>the factual framework provided</u> by the prosecutorial representation to Attorney Ana Gabriela Sánchez Arroyo in the brief dated May 30, 2007, by which it requested the application of the opportunity criterion for collaboration in favor of the cooperating defendant [Nombre026], <u>did not correspond completely to what was actually being investigated at that time</u>. Therefore, the conduct of [Nombre026] could not be assessed with all the information available to the Prosecution. Consequently, the conduct of the collaborator that could be evaluated by the judicial authority based on the information arising from the statement of facts provided by the Prosecution is not the same conduct that could be determined <u>based on all the information</u> that truly existed at that time as a result of the investigation in the hands of the Prosecution. There was information from [Nombre026] about his involvement in other acts and contracts of the ICE related to the subject of the telephone lines and the receipt of undue payments for acts inherent to his duties as a public official. The appellants report the following: “…<i>In effect, at that moment of the investigation, several statements given by the co-defendant [Nombre026] had already been added to the respective file, as well as several expert reports from the Economic and Financial Crimes Section of the Judicial Investigation Organism (Organismo de Investigación Judicial); among others, Report 297-DEF-540-04/05 in which, in the point identified as 4.8 point 12., the following is established:</i></span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align: none'><i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language: ES-CR'>“Finally, reference was made to Check No. 49-1 for U.S. $46,000.00, drawn by Holding de Valores y Capitales, S. A., on May 26, 2003, to the order of Mrs. [Nombre082], which he said he had received from [Nombre018], supposedly, for collection efforts he had made before ALCATEL, at the request of both the latter and [Nombre012].</span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align: none'><i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language: ES-CR'>At this point, it is worth commenting 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 for U.S.$110,207.00 and U.S.$29,833.95, received from CIBERTC, S. A., and Empaques Asépticos, S. A., through [Nombre027].”</span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> Likewise, the aforementioned report points out in point 5.11 that, although [Nombre026] maintained that the premium he would receive would range between 1.5% and 2% of the total contract for the 400,000 cellular lines, minus expenses, the expert report concludes that part of the sums transferred by Servicios Notariales Q.C., S. A., to [Nombre026] was also related to other contracts signed by the ICE for the purchase of ALCATEL fixed switching centers. </span></i><span lang=ES-CR style='color:black; mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> It is important to highlight —following this same line of exposition— that [Nombre026] would have declared in the month of September 2004 that he received undue payments for his participation as a Director of the ICE in the approval of the concession for the La Joya Hydroelectric Project. Also, in the month of October 2004, [Nombre026] confesses before the Prosecution to having received monies or undue payments in relation to the companies Teletec and Empaques Asépticos. In the month of November 2004, he also declared regarding the receipt of certain undue monies. Likewise, in May 2005, he stated that he had received monies from Holding y Valores corresponding to payments for improper acts linked to the exercise of his position as a public official. </span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> It is clear, then, that by the date on which the Prosecution filed its application before the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José for the application of the opportunity criterion for collaboration in favor of [Nombre026], the representation of the Public Prosecutor's Office had sufficient information allowing it to fully know about the possible participation of the cooperating defendant [Nombre026] in other criminal acts different from those linked to the contract for the 400 thousand cellular lines. </span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'> However, this information, referring to acts distinct from those directly linked to the contract for the 400 thousand lines, was concealed from the Judge. This assertion finds its support in the reading of the statement of facts contained in the request promoted by the Prosecution for the approval of the opportunity criterion negotiated with [Nombre026], as well as in the statement of facts contained in the ruling issued on June 1, 2007, which approves the aforementioned legal instrument. We consider it legitimate to affirm that the other mentioned acts in which [Nombre026] participates, different from those related to the mentioned ICE contract, were not reported as required to the judicial authority.</span></i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>…” Furthermore, in the trial itself, and with information that was made public to the press, the challengers were able to realize that the object of the agreement between the Public Prosecutor's Office and the co-defendant [Nombre026] would be regarding acts other than the contract for the award of the 400 thousand cellular lines to the Company ALCATEL. In support of what is affirmed, they cite the words expressed by Prosecutor Maribel Bustillo in the brief dated July 25, 2008, which, together with the ruling at 1:40 p.m. on May 18, 2009, appear added to case file 08-000032-615-PE, which they request <i>ad effectum videndi</i>, who stated:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align: none'><i><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language: ES-CR'>“In the agreement in question, it can be observed that the Public Prosecutor's Office, in the exercise of its conferred powers, undertakes to request in favor of [Nombre026] that criminal prosecution be dispensed with, not only for the fact related to the money improperly received from the company Alcatel on the occasion of the contracting by the Instituto Costarricense de Electricidad of the four hundred thousand GSM technology mobile lines, but for the entirety of the criminal prosecution for case No. 04-006835-647-PE, which encompasses this and the other acts that the complainant mentions, since all form part of the investigation under the single indicated number. This is so much the case that the defendant was questioned (indagado) on all those acts, well before the application of this agreement, on September 30, <st1:metricconverter ProductID=\"2004.”\" w:st=\"on\">2004<span style='font-style:normal'>.”</span></st1:metricconverter></span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;mso-pagination:none;mso-layout-grid-align: none'><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p>&nbsp;</o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>The appellants insist that from this document it follows that the object of negotiation between the Public Prosecutor's Office and [Nombre026] was the dispensation from exercising criminal prosecution <u>in relation to ALL the acts known and investigated by the Prosecution at the time of that negotiation</u>, that is, as of January 31, 2004. However, when judicial authorization is requested for the application of the opportunity criterion, <u>reporting is omitted about the acts under investigation in case file number 04-6835-647-PE</u>. Attorneys Ramos and Morales emphasize that, therefore, the prosecutorial action included other additional acts beyond those described in the statement of facts originally provided by the prosecutorial representation. This action would be contrary to constitutional and legal requirements, as it should have informed the judicial body about which acts it was actually reaching an agreement on with the defendant [Nombre026]. Thus, the incomplete information would cause a defective procedural action that was the basis for approving the opportunity criterion that favored this defendant, and which was contrary to what was expressly indicated by article 96 of the Code of Criminal Procedure. In the same way, the jurisdictional decision contained in the ruling at 1:30 p.m. on September 2, 2010, issued interlocutorily during the Trial that led to the Judgment being challenged, which legitimized, by majority decision, the introduction of the defendant [Nombre026]'s statement into the trial, would also be unsustainable. They transcribe a section of the judgment where the introduction of what this co-defendant testified is justified:</span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:0cm;margin-right:42.55pt;margin-bottom: 0cm;margin-left:42.55pt;margin-bottom:.0001pt;text-align:justify;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>“The agreement has been questioned by the technical defenses of the defendants because it allows impunity for [Nombre026] for other crimes committed; however, in the agreement literally described, it is expressed that the Public Prosecutor's Office undertakes to request in favor of the defendant [Nombre026]: "that prosecution be totally dispensed with in the case indicated above" and in the heading of the document it mentions "Illicit enrichment and others", Evidence No. 776. In the request for the application of the opportunity criterion, a statement of facts is included regarding the award of the 400,000 cellular lines to the company Alcatel, and at folio 28 it is recorded that the legal classification given to the described facts is a crime of active bribery (cohecho propio) and a crime of aggravated corruption for improper bribery (corrupción agravada por cohecho impropio) against [Nombre026]. In the ruling of the Criminal Judge at 9:51 a.m. on June 1, 2007, which authorizes the application of the opportunity criterion, after transcribing the described statement of facts and other assessments, it is indicated that it is for the crime of Illicit Enrichment to the detriment of the Instituto Costarricense de Electricidad. However, regardless of the aforementioned legal denominations, what really matters for the purposes of the definitive decision of that action by the competent jurisdictional body, and according to the second paragraph of article 23 of the Code of Criminal Procedure, is the factual basis contained in the request and the ruling.</span></i><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:0cm;margin-right:42.55pt;margin-bottom: 0cm;margin-left:42.55pt;margin-bottom:.0001pt;text-align:justify;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>Hence, the technical defenses of the defendants are not correct when they argue that the Prosecution deceived the Criminal Judge by granting impunity to [Nombre026] for crimes not included in the action. The issue of other alleged crimes attributed to [Nombre026] is totally extraneous to this court because, besides the fact that the principle of innocence applies to him regarding them —as it does to any other person suspected of committing a crime—, this proceeding is not for judging [Nombre026], nor for evaluating other possible illicit conduct attributed to him. In this case, what <u>is solely of interest is the intervention of [Nombre026] in acts related to each one of <span class=GramE>the defendants (imputados) regarding</span> whom his collaboration is applicable and who are accused in this proceeding.</u> With all that, how could the Public Prosecutor's Office deceive the Criminal Judge if the crimes for which it is applying for the opportunity criterion are those related to the acts in the request? If the second paragraph of article 23 of the Code of Criminal Procedure states that the dispensation from prosecution must be assessed by the criminal court "in relation to the acts or persons in whose favor the opportunity criterion was applied," how could other criminal acts be included? Attorney Gairaud also objects to the opportunity criterion by arguing that the criminal action for the crimes not included in such action would have reached the statute of limitations and, although this reasoning is contradictory or confusing with respect to the one previously sustained, in any case, it is reiterated that in this proceeding <u>exclusively</u> what is of interest is the evidentiary contribution of [Nombre026] in the trial of the defendants [Nombre012], [Nombre015], and [Nombre018].</span></i><span lang=ES-CR style='color:black;mso-ansi-language: ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='margin-top:0cm;margin-right:42.55pt;margin-bottom: 0cm;margin-left:42.55pt;margin-bottom:.0001pt;text-align:justify;mso-pagination: none;mso-layout-grid-align:none'><i><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'>[Nombre026] has also maintained that from his first statement, he was willing for them to investigate his bank accounts, his credit cards, telephone calls, and offered what was within his reach for the investigation, his wife as well as his mother showing a similar attitude. It is observed that at folio 434 of Volume II, his authorization dated October 5, 2004, is recorded for copies of all documents related to his checking accounts to be delivered to the representatives of the Prosecution, Mrs. [Nombre082] proceeding in a similar sense, as recorded at folio 432 of Volume II.</span></i><span lang=ES-CR style='color:black;mso-ansi-language: ES-CR'><o:p></o:p></span></p> Likewise, as of October 12, 2004, he proceeds to deliver certificate No. [Valor051] for the sum of $1,401,241.36, as inferred from the documents on folios 462 to 465...” ...a rigorous examination of the content of his version and the eventual incidence of the indicated circumstances Although the particular and rigorous examination of the statements of [Nombre026] will be made on each occasion that his version is used as evidentiary support, it is worth pointing out beforehand that the recount of circumstances previously carried out allows us to establish that:

• i)The first declaration of [Nombre026] occurs on September 30, 2004, folios 127 to 136, Volume I, and by October 5, 2004 (folio 434) the accused collaborator was already authorizing the opening of his checking accounts and the obtaining of bank documentation, therefore his purpose of collaborating with the Administration of Justice is evident.
• ii)On October 12, 2004, [Nombre026] shows signs of his intention to compensate part of the damage caused when he proceeds to deliver to the Criminal Court of this Judicial Circuit certificate No. [Valor051] for the sum of $1,401,241.36.
• iii)On May 9, 2005, 8 months after the case began, [Nombre026] agrees with the Public Prosecutor's Office to the application of an abbreviated procedure (procedimiento abreviado), undertaking to accept his responsibility for the facts, to serve a sentence of 4 years of imprisonment without any benefit, and to render his declaration at trial, as well as the payment of the sums indicated to the Office of the Attorney General (Procuraduría General de la República) and the Costa Rican Electricity Institute (Instituto Costarricense de Electricidad), and the delivery of two cars. And contrary to what was stated by the defense of [Nombre012], it is noted that at that time the conditions for [Nombre026] to become eligible for the benefit of Article 55 of the Criminal Code were not met, apart from the fact that such a possibility was also not negotiated with the Public Prosecutor's Office, nor is authorization of that nature within the scope of its competencies. Furthermore, due to the quantum of the penalty, in accordance with Article 59 of the Criminal Code, [Nombre026] would have effectively had to serve said sentence because the benefit of conditional suspension of the sentence would not be applicable. And finally, if the agreement for the signing of the abbreviated procedure implied the imposition of the described penalty and appearing at the oral hearing (debate) to render his declaration, hypothetically assuming that said procedure had been authorized by the competent court, what would have motivated [Nombre026] to appear at trial to render his declaration if he had to serve the sentence of 4 years of imprisonment? That is, if his purpose in coming to the oral hearing, according to the defense, has been to remain unpunished, Why did [Nombre026] at that first moment accept this same condition in exchange for serving a sentence of 4 years of imprisonment? The described argument definitively lacks all logic.
• iv)The cited abbreviated procedure could not be formalized due to the refusal of the complainants (querellantes) [Nombre083] and [Nombre084], who not only generated suspicion in the appellate judge regarding their legitimate interest to file a complaint (querellar), but also to file a complaint against one of the declarants regarding the criminal action of [Nombre012], the latter having granted authorization to [Nombre083] to be present at a private hearing where he appeared, as well as due to the recorded visits by [Nombre083] during the house arrest of [Nombre012]. A situation which, apart from generating suspicions about the true grounds for the exercise of the criminal action by [Nombre083] and [Nombre084], given the former's connection to the defendant (encartado) [Nombre012], in any case and -for what is of most interest here- the truth is that, paradoxically, it was by virtue of the refusal of said complainants to allow the abbreviated procedure to be agreed upon and formalized that, finally, [Nombre026] was legally prevented from accepting the charges and becoming eligible for the custodial sentence of 4 years of imprisonment that he had agreed upon with the Fiscalía. Hence the fallacy of the argument of the defendants' technical defenses, that [Nombre026] was benefited by the Fiscalía with the opportunity principle (criterio de oportunidad) so that, in exchange for his impunity, he would "sink" the accused, since if he remained unpunished, understanding this as the lack of criminal penalty, this was due to the actions carried out by those close to [Nombre012]. That is, if the facts for which [Nombre026] has admitted responsibility remain unpunished, it is due to the refusal of [Nombre083] and [Nombre084] to admit the application of the abbreviated procedure, not because the Fiscalía, out of the blue, "blackmailed" [Nombre026] with the opportunity principle to make him appear to declare at this oral hearing, apart from the fact that he had already accepted this condition without being offered the aforementioned institute. There is another aspect that deserves to be addressed, and that is the suggested favoritism that the Public Prosecutor's Office showed towards [Nombre026], noting that other defendants in this case submitted to similar procedures and specifically the ex-director of the I.C.E., [Nombre027], and [Nombre064], in charge of Intelmar S.A., agreed with the Fiscalía on the imposition of sentences of 3 years of imprisonment, granting each the benefit of conditional suspension of the sentence. Consequently, what preferential treatment exists when, upon agreeing to the abbreviated procedure, [Nombre026] would face a sentence of 4 years of imprisonment without conditional suspension? Furthermore, the dissenting vote questions that [Nombre026] had been allowed an economic profit of 2 and a half million dollars supposedly coming from gifts received and that he kept one million dollars, all in exchange for his declaration, without this majority integration understanding from what evidentiary element or which inference the dissenting position is allowed to make that affirmation. But, leaving that aside, what the evidentiary catalog does reveal is that with an abbreviated procedure, or without an abbreviated procedure, with an opportunity principle, or without an opportunity principle, since October 12, 2004, [Nombre026] delivered to the Criminal Court of this Judicial Circuit certificate No. [Valor051] for the sum of $1,401,241.36. The rules of logic indicate to this court that if [Nombre026] wanted to keep some money in exchange for his impunity, he would not have delivered the described sum when he had not even negotiated that possibility, and that if the Public Prosecutor's Office -according to the insinuated dynamic- wanted to compensate him with the sum he did not deliver so that he would declare, then it would have similarly wanted to "compensate" him when, for that same sum, it agreed with him on the application of the abbreviated procedure and the imposition of a sentence of 4 years of imprisonment. And then one would have to affirm, also, that the Public Prosecutor's Office wanted to "compensate" [Nombre064] when he only returned $100,000, despite the fact that it was proven he received more than $1,000,000; but surely the Public Prosecutor's Office did not want to "compensate" [Nombre027] when it negotiated with him the abbreviated procedure and the return of more than $1,000,000. On the contrary, all the foregoing reflects that the representation of the Fiscalía did not condition the negotiation with the described defendants, nor with the collaborator, on the exact return of the amount from which they benefited.
• v)The agreement between [Nombre026] and the representatives of the Public Prosecutor's Office for the application of the opportunity principle occurs on January 31, 2006, and through its signing, one year and several months after the beginning of this criminal process, [Nombre026] once again (because he had already assumed a similar commitment with the abbreviated procedure) obligates himself to appear at trial to declare.

It is for all the foregoing that, in summary, it can be affirmed that it was not as a consequence of the opportunity principle, nor in exchange for his impunity, that [Nombre026] came to this oral hearing to render his declaration; and that when [Nombre026] is asked why he accepts to appear to render his declaration and he responds that he wants to publicly assume responsibility for his acts, this court considers that his statements are totally credible and disinterested because it was not under the protection of the opportunity principle that he devised such an initiative, but rather this occurred many months before the granting of that mechanism, and, even, when he first exhausted another, more burdensome possibility for his person.

It has already been said that the specific assessment of the assertions of [Nombre026] will be made in the instances where said contribution occurs; however, because the technical defenses of [Nombre001], [Nombre004], [Nombre012], [Nombre015], and [Nombre018] object to his credibility with allusion to common and general aspects, it is worth referring to them. They allege that the fact that [Nombre026] abstained from answering questions formulated by the lawyers of the defendants [Nombre012], [Nombre015], and [Nombre021], detracts from the credibility of his account. However, in this court's consideration, the cited behavior of [Nombre026] does not affect the credibility granted to his narration because, in those instances where he omitted to answer the questions, he did so for several reasons but with a single basis, whether because he was questioned about self-incriminating facts in which he had the right of abstention, or because he was asked about facts unrelated to the accused. In either case, such conduct derived from the warning given to him by the court before rendering his declaration at the first hearing on September 8, 2010. Both at that moment and by resolution at 1:30 p.m. on September 2, 2010, it was indicated:

"...the decision of this body is maintained for [Nombre026], in his capacity as an accused collaborator, to appear to render a declaration, who will be informed: i) of his rights not to declare against himself and to abstain from rendering a declaration on the facts, without his silence affecting him; ii) of his right to have the assistance of a lawyer of his choice and to communicate freely and privately with him; and iii) in the event that he opts to declare, he will be warned that everything he says could eventually be used against him, as well as of his right to express what he considers convenient and is related to the charged facts, the parties and the court being able to ask him questions without thematic limitations, except for form, pertinence, and usefulness, and it remaining at his discretion whether to answer them." (the bold is supplied) The aforementioned warning, for what is of interest here, was made by the court based on numeral 326 in relation to the principle of correlation provided for by Article 365, both of the Criminal Procedure Code (Código Procesal Penal). The first establishes that the trial, apart from being the essential phase of the process, is carried out on the basis of the accusation, which -in accordance with the indicated principle- determines the content of the judgment. In other words, because the court was legally impeded from hearing illicit facts other than those charged, it was expressly indicated to him that, should he choose to declare, he would have the right to express what he considered convenient provided it was related to these. So his refusal to refer to circumstances not contained in the accusation and eventually self-incriminating in no way undermines his credibility.

Consequently, it could not be argued either that a collision of defense rights of the accused collaborator and the defendants operates here, given that what prevails here is the delimitation of the oral hearing (debate) and the evidentiary activity on the basis of the accusation. There is no violation of the defendants' right to defense because it is not based on facts allegedly committed by a third party that they are held responsible, but for their own, about which they had ample opportunity to question and obtain answers from the collaborator; apart from the fact that the protection of [Nombre026]'s right of abstention was not fundamental either since, in any case, regarding such events, this court would not have jurisdiction to convict him even if he acknowledged them, or to acquit him if he denied them. They were simply factual situations that did not motivate his appearance at trial, that were not of interest in this process, no matter how much these might have interested the parties." (See Considering XI, p.1654 to 1660) It is proposed, then, that the Trial Court decided to act in accordance with its own criterion, not to declare the defective procedural activity generated by the omissive actions of the Public Prosecutor's Office, and to allow [Nombre026] to testify, considering it unnecessary to determine whether indeed the public criminal action that should have been pursued regarding all the criminal acts committed and attributable to [Nombre026] was illegitimately abandoned by the Fiscalía based on the effects derived from the opportunity principle improperly granted in the subjúdice. The conviction of [Nombre015] resulted essentially from the information provided by this evidentiary element contrary to law (the declaration of [Nombre026]). They add, the dissenting vote held by Judge Camacho Morales in the Judgment being challenged, would be an additional element that supports these arguments, summarizing the main aspects derived from the reasoning of the dissenting vote in the following manner:

"...1. Incomplete request formulated by the Fiscalía for the Judge to approve the application of the opportunity principle in the specific case and in the terms indicated by Article 22 subsection b) of the Criminal Procedure Code; 2. Groundless jurisdictional resolution that approves the application of the opportunity principle and justifies [Nombre026]'s declaration at trial; 3. Declaration rendered at trial by the co-defendant [Nombre026], improperly sheltered by the promise of a procedural advantage that is juridically impossible to uphold.

4. Use of information coming exclusively from illicit evidence to essentially found the factual framework used to convict -among others- [Nombre015].

This representation considers that, based on the foregoing, it is imperative:

1. To grant the present Cassation Appeal (Recurso de Casación) based on this first cassation ground; 2. To declare that the request for application of the opportunity principle contained in the filing on folio 1 and following of the respective Dossier (proof 776) constitutes a defective procedural action; 3. To declare illegitimate, for being essentially supported by defectively verified procedural acts, the resolution at 9:51 a.m. on June 1, 2007, issued by the Criminal Court of the Intermediate Stage of the Second Judicial Circuit of San José, subscribed by Attorney Ana Gabriela Sánchez Arroyo; 4. To dimension the effects of such declarations and also to order that the resolution at 1:30 p.m. on September 2, 2010, issued by this Court is illegitimate, insofar as it ordered the production of [Nombre026]'s declaration at trial (which materialized in subsequent days), given that it was essentially based on the assumption that the jurisdictional resolution mentioned in the previous point was legitimate; 5. It must be declared that the information coming from the declaration rendered at trial by the co-defendant collaborator [Nombre026] did not form part of the usable material to found the objected Judgment..." Based on the aforementioned reasonings, they request that the judgment appealed through this appeal ground be annulled for being the product of defective procedural activity, a measure that must be adopted immediately, the challengers estimate, to cure the process and eliminate the harmful effects coming from that illicit activity. They are correct in their claim and the ground must be granted. This Chamber has expressed a series of arguments that endorse the defense's thesis, upon resolving the appeal filed by Dr. [Nombre012], not only from the point of view of the regulated opportunity principle applied in the case, but also regarding the procedural and factual consequences implicit in the use of the declaration of an "accused collaborator," who in his declaration makes a calculation based on the procedural and punitive advantages that have been offered to him and the information he will provide to obtain them. Reference is made to this section of the resolution to avoid unnecessary reiterations. However, it is worth noting that abundant bibliographic material demonstrates the skepticism and reservation that the use of this type of testimony in the process generates in national and international doctrine, and the felt need for judges to critically analyze their deposition with the rules of correct human understanding, logic, and psychology, in essence, with suspicion, so that the information provided does not become the sole element for the conviction of a person subject to prosecution (justiciable). This Chamber also analyzed, in detail, that the dissenting vote of Judge Camacho broadly assessed the drawbacks of using his testimony, not only because of the defects that had been observed given the absence of effective jurisdictional control in the application of the institute, a product of the omission of information that has been alleged by the appellants and that had as its final consequence: the admission of the use of the opportunity principle in favor of [Nombre026]. In essence, the details of what was declared by [Nombre026], and which have been included in facts number 84 to 94, involve not only [Nombre012] but also [Nombre015], not only because of the conversation in the restaurant "[...]" where gifts were supposedly offered to [Nombre026] so that he would intervene in the decisions on the bidding for the four hundred thousand telephone lines, but also because [Nombre015] is placed in an action suitable to make [Nombre026] become an effective piece in favor of the interests of the multinational Alcatel. Along with this, on folio 1157 of the judgment, what was mentioned by [Nombre026] about the supposed means by which the gifts would be paid is introduced, and that [Nombre015] had informed him that it would be done through Servicios Notariales QC S.A.

as a means to be more protected. In the same way, the court's conviction regarding the way the viewpoint on GSM technology changed is based on the fact that both [Name026] and [Name004] had already received promises of remuneration, just as [Name026] stated (folio 1164). The majority court found, additionally, that everything stated by [Name026] was reliable and, furthermore, congruent with the evidence presented. Regarding what concerns [Name015], the court understands that [Name035] and [Name015] asked [Name026] to help them achieve the technological migration, secure the public tender, and ensure that the award was made to Alcatel, in the event that such a public tender took place (folio 1167). In this regard, the majority court considers that there is a logical succession of events: first, achieving the technological migration, then the public tender, and finally, the ultimate award, which implied the full satisfaction of Alcatel's commercial interests. Therefore, it connects what [Name026] said with the undertakings of [Name015], especially regarding the latter's offer to ICE of a commercial proposal involving the donation of equipment in 1998 and a direct purchase. The proposal was presented at the Board of Directors' Session No. 5268 on February 2, 2001. The court even considers that it was not enough for [Name015] to have "bought" two officials, as he already knew there were suspicions from the oversight body about approving the direct purchase of 160 thousand lines, due to the suspicion that interests other than those of the Administration were involved (folio 1168). And it is for this reason that the court assumes, theorizes, that Alcatel only had to apparently meet the requirements of the tender specifications to have a guarantee of success (folio 1168). However, and as already analyzed above in relation to the appeals in favor of [Name001], it is more than evident that the process that concluded with the award was pristine, and that only two competitors, for various reasons unrelated to Alcatel, ended up participating in the abbreviated procedure, with Ericsson being excluded for technical and offer-related reasons. In fact, the evaluations from various ICE bodies agreed that the technical offer that best met the required specifications was Alcatel's, and they endorsed the award, as analyzed in detail by this Chamber. It is for this reason that it can be derived from the reasoning of the majority vote that there was a hypothesis of condemnation constructed from the statement of [Name026], and the details he gave about the offers of remuneration received and the role he was to play when participating in the Board of Directors' sessions as a member thereof. But the truth is that the process toward migration was decided before such offers took place, and the path was not easy because the TDMA-based technological infrastructure made Costa Rica dependent on the providers of said technology, an offer from which, of course, Alcatel was excluded, since its development base was GSM technology. However, neither the commercial offer nor the delivery of the 2000 GSM lines were definitive in convincing the Board of Directors of the advisability of following the path of opening, since those decisions were already being made based on technical criteria, and benchmarking studies and other types of studies. The entire process, finally, generated the interest of Mr. [Name052] and the ICE Board of Directors in opting for the direct purchase procedure. This Chamber has already considered that this path benefited Alcatel more by virtue of the fact that it would proportionally participate in the purchases of telephone lines that ICE would make. The abbreviated procedure, for its part, did not guarantee that security, not only due to the uncertainty of who its competitors would be, what the nature of the economic offers would be, and under what conditions the entire process of evaluating said offers would take place. Finally, the contract was awarded to Alcatel, but not by virtue of a rigged offer. Everything seems to indicate that the offer satisfactorily fulfilled the public interests, and the growth possibilities that ICE had at those dates, given the pending demand and the forecast of future market evolution. The technological change, moreover, suited the needs of the cellular market, which expected better value-added communication services that the TDMA platform could not satisfy. All of this has already been analyzed on the occasion of analyzing the participation of [Name001] as coordinator of the commission in charge of this entire procedure, and where this Chamber placed special emphasis on the analysis of the bidding procedure. The defense of the defendants, but especially Attorney Erick Ramos, always insisted that it was illogical that the remunerative proposal, as [Name026] relates it, had those objectives that the trial court maintains in its majority vote. Despite this, the judges insist that [Name026]'s assertions were ratified by them, even when they clash, as has been demonstrated, with the reality inherent to a procedure that experts have described as pristine. From folio 1172 to 1175, the judgment explores the kinship relationship that exists between [Name015] and [Name009], which, despite the requirements of Alcatel's code of ethics, occurs and facilitates the channel or flow of money to the corrupt officials who end up deciding the award process for the 400 thousand lines. The judgment places [Name015] using a "secure" mechanism for paying the bribes, which had supposedly already been explained to [Name026]. The causal connection, then, between [Name015] and Servicios Notariales Q.C. S.A. and the entire mechanism devised to pay the bribes, is sustained by an inference from [Name026]'s statement, however much the connections and payments through the banking inquiry (also questioned) had their effect on the judicial conviction. In this regard, [Name026] explained on each of the seven occasions on which funds were transferred to him, [Name015] would communicate with him beforehand and ask him about the way it would be paid. [Name026] would give him account numbers and the funds would flow there. From this, the majority court also derives the connection between [Name015] and [Name009], who made the payments from the accounts controlled by Servicios Notariales QC S.A. What [Name026] said about his role in the decisions of the abbreviated procedure and in the award of the "400K" project is openly illogical, and does not align with the analysis of the decision-making process that demonstrates that ICE was already moving toward technological opening, through legal channels and with the obstacles inherent to the Public Administration for making decisions. However, the path was open before [Name026] received promises of remuneration (according to his account) to influence the procedure. The mendacity of the witness [Name026], and the well-founded suspicion that he acted selfishly to obtain benefits from his statement, cannot be overlooked by this Chamber, and it is appropriate to consider the use of his testimony another reason to grant the appeal of Attorneys Ramos and Morales, and to decree the nullity of the judgment under review that found [Name015] guilty of four counts of the penalty of the corrupter. It was not necessary, to strengthen this conviction of this Court of Appeal, to assess file 08-000032-615-PE, against Mr. Francisco Dall´Anesse Ruíz, regarding the issue that the agreement with the co-defendant [Name026] covered other diverse topics in addition to what was related to the contracting of the 400 thousand cellular lines, since, as already analyzed on the occasion of Dr. [Name012]'s appeal, it has been clearly determined that the granting of the opportunity criterion has flaws, which affect its direct use in this case. It is for the foregoing reason that the ground is granted, and it is appropriate to annul the ruling under review, without ordering a remand, as there are no other independent elements that contribute to the effective analysis of the defendant's criminal participation in the acts with which he is charged. Therefore, in application of the principle of procedural economy, it is appropriate to absolve him of all punishment and responsibility for said acts. C. Spurious Evidence (Nullity of evidence no. 588). The defendants [Name001], [Name009], [Name015], and [Name021]. (Appeal visible at folios 17264 to 17278 of Volume XXXVI), raise in their brief, authenticated by Attorney José Miguel Villalobos Umaña, that Article 369, subsection j) has been violated by issuing the judgment in violation of due process, by substantially basing the convictions on illegally obtained and illegally introduced evidence in the debate, and therefore subsection c) is also violated by illegally incorporating an evidentiary element into the process, thereby contravening the constitutional provisions referring to due process and the right to defense enshrined in constitutional numerals 39 and 41 and the doctrine inspiring Article 8 of the American Convention on Human Rights. They additionally cite the resolution of the Constitutional Chamber No. 1739-92 of 11:45 a.m. on July 1, 1992, which, drafted by then-Magistrate Piza Escalante and by unanimous vote, determined the elements comprising the concept of due process, among them the principle of legality of evidence (subsection g) sub-subsection b)). Along with this principle, they invoke the general right to legality, which converts mere legality violations into violations of due process, with the aim of achieving full guarantee and material effectiveness. They further point out that Articles 180 to 184 of the procedural legislation contemplate this same consequence for deriving from the principle of constitutional legality of Article 11 of the Magna Carta, which obliges public officials to respect legal norms in order to have the moral authority to judge and sanction those who infringe them. But this requirement, they say, would be meaningless if it were not also required that evidentiary means be obtained lawfully, which entails, constitutionally, that not only must the means have value in themselves regarding their obtaining but also in the way they are incorporated into the criminal process. It would not make sense, then, to obtain evidence illicitly that is later legitimately introduced into the process, since in such circumstance fundamental guarantees that judges are called upon to uphold would already have been affected. that evidentiary elements that were used for their conviction, with the aim of studying their illegitimate obtaining and incorporation into the process. They begin with an analysis of evidence 588 containing the banking information from Panama of the accounts of the company Marchwood Holding. According to the appellants, the evidence is obtained illegally, without a court order. Furthermore, it is a certified copy from a different judicial file. The criterion set forth by the judges is vacillating, even maintaining that it is not within their sphere of competence to determine if the evidence was obtained illicitly, which is contradictory because since almost the beginning of this trial, they ruled on it, they acknowledged that this evidence was obtained through a lifting of bank secrecy without a Judge's order, and even nullified evidentiary material brought to the debate with an identical procedure, by means of the unanimous resolution in that aspect and drafted by Judge García Aguilar at 8:00 a.m. on May 14, 2010. There it is indicated that this evidence coming from Panama is NULL: from Folio 34 to 70 of that resolution, the arguments are outlined as to why evidence coming from Panama consisting of bank evidence gathered without a court order cannot be allowed to be valid, and therefore the decision of the preliminary hearing Judge to exclude it is upheld. In any case, the appellants maintain, the judges had already expressed their criteria by saying that EVIDENCE 588 WAS GATHERED WITHOUT A COURT ORDER THAT LIFTED THE PRIVACY OF THE DATA. (See Folio 894, line 2 and following). In a second point, they refer to the banking information from Panama that derives from evidence 588, which alludes, for the first time, to the company Servicios Notariales QC S.A. without there being any independent evidence in this regard. They start from their appreciation that evidence 588 is a certified copy of the Judicial Assistance containing the CAJA-FISCHEL Case that was processed in a separate file, therefore it was reviewed to obtain information for this other case. It is thus, they say, that Expert Report 428-DEF-443-05-05 from the Judicial Investigation Agency, evidence No. 618, includes the information coming from Panama, as can be seen in folios 59, 70, 81, and 88, which contain indications of transfers from a company named Servicios Notariales, unrelated to the CCSS-Fischel case, to the company Marchwood Holding, which was under investigation in that case. It is in that way that the Prosecutor's Office learns of the company Servicios Notariales QC S.A.; otherwise, it would not have learned of its intervention had it not been for the use of this spurious evidence. They establish that this illegal information reaches Costa Rica from Panama at the beginning of September 2004 and is finally received by the Prosecutor's Office on September 10, 2004, at 14:00 hours, as recorded at Folio 895 of the judgment. Information was requested about Marchwood Holding, not about Servicios Notariales QC as of May 25 of that year, and as of September 10, the Prosecutor's Office learns of the existence of a company named QC and begins an investigation into it from that moment. In other words, they insist, there is no prior reference to Servicios Notariales QC before this date of September 10, so the investigation of the ICE-ALCATEL case formally begins with the information obtained from evidence 588 from Panama, which is null, they underline, for having been obtained without a court order, meaning its consideration must be excluded in application of the exclusionary rule established by the rulings of the Constitutional Chamber and numerals 180 and following of the Criminal Procedure Code, affecting every element that derives from it. They claim there is no independent and autonomous evidence from that illegal evidence that allows for curing the illegality of that information obtained from evidence 588. According to the judges of the Majority Vote, there would be independent evidence from evidence 588 that is not affected by the presumed illegality, and that if evidence 588 were eliminated, it could sustain the assertions of the prosecutorial accusation against the defendants. They cite, for this, journalistic sources: evidence 592.9 called WRITTEN PRESS MONITORING FROM DECEMBER 9 TO 31, 2004, in reference to publications of April 21 and 27 of that year, which make no reference whatsoever to the topic under discussion, as established by the defendants. This is because from the press notes alluded to by the Judges, the existence of a company called Servicios Notariales QC S.A. does not emerge. There are only references to a house in [...] and to [Name021]. At folio 935, journalistic notes from April 2004 are cited, which appear in evidence 529.9 and 682.1. However, the former talks about some issues in Taiwan and the latter refers to other events but in no way to Servicios Notariales QC. Nor does the publication cited in folio 936 give the information that the judges claim, since said note from September 28 also does not allude to Servicios Notariales QC, in addition to the fact that by that date the banking information illegally obtained in Panama had already arrived. According to the appellants, it would be evident that the press had received the derived information to solicitously contribute to the investigation. They also reject that the interview with Mr. [Name085] on September 27 was prior to the illegal evidence coming from Panama. They state the judges opined that it was the bank data that caused new paths in the investigation and that which caused the obtaining of subsequent evidence. They continue with their argument, and now study THE ACTION OF MR. [Name032] IN WRITING AND VERBALLY DOES NOT HAVE THE MAGIC TO SUPPRESS THE INVALIDITY IN THE OBTAINING OF THE BANK EVIDENCE FROM PANAMA. This concerns the criticism of the possible way to eliminate the unlawfulness of the evidence through the consent given by Mr. [Name032] to the use of the evidentiary elements that could be obtained from access to his accounts, not only through the available written documentation but also through the verbal expressions he makes 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 September 10, 2004. With this evidence in the hands of the Public Prosecutor's Office, lifts of bank secrecy were ordered for companies like Servicios Notariales QC, the accused were charged, and precautionary measures were requested. And it was not until May 17, 2010, that [Name032] grants his authorization for the obtaining, use, and utilization of the banking information available in his bank account in Panama, as the Judges state at Folio 896 and is recorded in Evidence 759 at folio 13449 of the records. They question this authorization as a form of granting retroactive legality to the access to his accounts without a judge's order, trying to erase the illegality that is already evident from the prosecutorial action on this topic. They also question the attempt to prove the character of representative of the account held by [Name032] using the same questioned evidence 588, especially if it was done six years later. They also reject the theses related to the idea of inevitable discovery, of the notitia criminis, or of the casual finding, with which the court attempts to legitimize the use of evidence 588, with arguments that are unsustainable by virtue of the illegality of the evidence that, from its origin, makes it impossible to use its information in the criminal process (folios 173584 to 173586 of Volume XL). They are correct in their claim. The arguments for analyzing this legal problem have already been explained further above, when resolving the appeal filed by Dr. [Name012] (A-1). Thus, it is appropriate to apply to the defendant [Name015] the same effects that this determination had for the defendant [Name012]; the nullity of documentary evidence No. 588 and all evidentiary elements that depend on it is declared, the nullity of the criminal conviction judgment issued against [Name015] is declared, and in its place he is directly absolved of all punishment and responsibility. D. Flaws regarding the determination of the fact and the assessment of the evidence to determine the indicia that led to the conviction for the crime of Penalty of the Corrupter. 1. Regarding the erroneous application of substantive law as it refers to Article 345 of the Penal Code. In the first ground for flaws in iudicando, the appellants state that Mr. [Name015] cannot be convicted as the author of the crime of Penalty of the Corrupter for having made a promise to deliver a bribe for the performance of an act proper to the functions of those involved. The subsequent delivery of the bribe would be an unpunishable act since it is independent and the wrongful content of the action is materialized in the promise of the bribe. The appellants begin with some considerations about the systematic function of the criminal type and the derivations that can be established between its normative description and its role as a guarantee for criminal law. With respect to the crime of penalty of the corrupter, which occupies the central interest of this section, they consider that the facts point to the following: "...The norm corresponding to the PENALTY OF THE CORRUPTER (currently that of Article 345 of the Penal Code) has been the object in recent years of several direct or indirect reforms. Considering what the corresponding criminal type established for the approximate date of commission of the criminal acts that are taken as proven (according to what was taken as demonstrated thus: [Name004]: offer of a bribe at the end of 2000 and beginning of 2001; [Name001]: offer of a bribe at the end of 2000 and beginning of 2001; [Name026]: offer of a bribe at the end of 2001; [Name027]: offer of a bribe between the months of January and August 2001) it is worth the opportunity to highlight how the norm was drafted at that time:

Article 345: The penalties established in the five preceding articles are applicable to whoever gives or allows the public official a bribe or undue advantage.

It is worth noting that Article 185 of Law 7732 of December 17, 1997, modified the numbering of the Penal Code and assigned the numeral 345 to the until then Article 343. Subsequently, the norm of Article 343 bis was added to the Penal Code by Law 8185 of December 18, 2001, published in La Gaceta No. 10 of January 15, 2002, referring to the Offering or Granting of Bribes or Retributions. The specific conduct of whoever offers a bribe to a public official of ANOTHER State is sanctioned here.

Finally, we must also highlight that article 1 of Law 8630 of January 17, 2008, repealed article 343 bis and amended the provision of article 345, both of the Penal Code, so that henceforth it reads as follows:

"*Article 345.-* Penalty for the Corruptor: The penalties established in the five preceding articles shall be applicable to whoever gives, offers or promises a public official an undue gift or advantage."…" Regarding the legally protected interest in the crime of Penalty for the Corruptor, some doctrinal observations are made. They begin with Muñoz Conde, who maintains that the correct functioning of the administration is protected through the punishment of this conduct, which also includes the principle of impartiality in the public official. The author ORTS BERENGUER, for his part, points out that the principle of objectivity and impartiality in the administration is protected through this figure. In Latin America, the Argentine author CREUS indicates that the venality of the public official is protected as the object of protection. They also cite precedents from the rulings of the Third Chamber of Criminal Cassation, specifically Voto 183-95, which in turn reiterates what was already upheld in 256-F-97, and in which it was stated that the protected interest was the "*sound and normal functioning and prestige of the public administration through the correctness and integrity of its employees or servants*…". Regarding the action prohibited by the criminal provision set before the criminal offense, they suggest that a simple analysis of the incrimination yields the result that the conduct of *giving* or *allowing* an undue gift or advantage that the subject makes to the public official is prohibited. Regarding the history of this criminal offense in terms of the prohibited conduct, they add the following: "…*It is worth taking this opportunity to note that the relevant history in relation to this article begins with the pronouncement contained in Voto 461-91 of the Constitutional Chamber of the Supreme Court of Justice. In relevant part, it essentially established that article 343 of the Penal Code (subsequently 345) cannot be interpreted without violating the constitutional principle of legality, in the sense that what the legislator meant to say is not "permitiere" but "prometiere". The same case within which this Voto of the Constitutional Chamber was ordered subsequently prompted the issuance by the Third Chamber of the Supreme Court of Justice of Voto 183-95, which indicated in relevant part that the Constitutional Chamber established that it is not legitimate to read "prometiere" where it says "permitiere"; but that the truth is that it did not establish anything regarding the meaning of the words that compose the criminal offense: it does not tell us what we should understand or what we should not understand from those words. And what the appellant maintains is, precisely, that when the Constitutional Chamber establishes that the verb "permitiere" cannot be substituted by the word "prometiere", it is not excluding the "offer" or the "promise" as a possible semantic content of the word "diere" set forth in the referenced numeral of the Penal Code. Consulting various dictionaries proves the challenger right; in such a way that it must be agreed that whoever promises, offers or proposes an undue gift, present or future, to a public official so that the latter performs an act contrary to their duties (or incurs any of the hypotheses of articles 338 to 342 of the Penal Code) adapts their conduct to the hypothesis provided for and sanctioned in article 343 of the Penal Code*… The appellants reject this derivation made by the Criminal Cassation Chamber in its precedents, and suggest that the provision set before the criminal offense does not encompass the meanings of "propose, offer or promise". **The ground must be upheld.** Indeed, the word "permitiere" cannot be given a criminal legal application as if it said "prometiere", since this changes the meaning of the prohibition. The principle of criminal legality, contemplated in article 39 of the Constitution and in article one of the Penal Code, requires the judge to take great care not to assume legislative functions, which would certainly occur, for example, by amending eventual errors in the publication of a law, or by promoting readings of the structure of the criminal offense that are aberrant from the conventional use of the terms. Attempting a reading, for example, of the verb "dar" based on far-fetched semantic elaborations, which could depart from the correct interpretation of the term and the conventional understanding of said verb, could lead to a substitution of the punitive objective of the criminal law, whose objective is to be understood by the addressees of the provision and understood in such a way that the prohibition is heeded. Thus, understanding the word "dar" as if it were "prometer" or "ofrecer" is an interpretation that contradicts the principle of legality, not only because it gives the semantic interpretation a twist that departs from the conventional use of said term, but also because it implies extending the scope of coverage of the criminal offense beyond where the limits of punishability allow. Doing so would incur an extensive interpretation of the contents of the criminal offense that is prohibited by the Political Constitution, which is inspired by several centuries of construction of criminal guarantees that have been developed to prevent this type of judicial actions, which affect the legal certainty of the citizens of a Democratic and Social State of Law such as the Costa Rican one, according to the programmatic reading of article 1 of the Political Constitution. The Third Chamber of the Supreme Court of Justice itself, in its Voto No. 580-F-91, expressed a criterion in the sense that the provision could not be given a content or meaning that the legislator had not foreseen: "*III.- In the first ground of the appeal on the merits, articles 1, 30, 31, 54, 343 and 339 of the Penal Code are alleged to have been violated. The appellant affirms that the criterion of the Constitutional Chamber is not correct, since from the concordance of articles 343 and 339 of the Penal Code it is deduced that the promise of an undue gift or advantage, made to a public official to perform an act contrary to their duties, or to fail to perform or delay an act proper to their functions, constitutes a typical, unlawful and culpable act. The reasoning is not admissible, firstly because the verb used in the cited article 343 does not comprise the promise (diere or permitiere), and even if the legislator had intended to include the promise, according to the relationship made with 339 ibidem, the truth is that what the provision says must prevail and not what the legislator may have wanted without indicating it in the provision, in accordance with the constitutional principles of legality and specificity. Secondly, an interpretation different from that of the Constitutional Chamber made in Judgment No. 461-91 of February 27, 1991, would not be admissible either, insofar as it indicated that the cited article 343 did not include the promise, based on article 13 of the Law of Constitutional Jurisdiction, which establishes that the jurisprudence of that Chamber is binding *erga omnes*. For all the foregoing, the ground must be declared without merit*." There are other votes that dissent from the criterion just cited, such as Voto 183-1995, when it interprets that the concept "diere" encompasses the meanings "propose, promise and offer," however, these types of criteria oppose an application of the criminal offenses in accordance with the constitution. *The appellants recall a dissenting vote by Dr. Javier Llobet, in his function as cassation judge, who in a vote of the former Court of Cassation*, Voto No. 27-2004, held the following: "…*VI.- DISSENTING VOTE OF JUDGE LLOBET RODRÍGUEZ: The undersigned judge respectfully dissents from the majority insofar as it considers that the crime for which the accused was convicted was consummated, considering that it remained in the attempt stage, in accordance with the description of the criminal offense of penalty of corruptor, established in article 343 of the Penal Code. To this end, he considers that although the accused gave a gift, he did so in a police operation, which must fundamentally be considered to have the purpose of verifying the illicit action incurred by the accused by offering a gift to a lawyer of the Constitutional Chamber. The fact that this was a controlled operation prevents properly speaking of a consummation of the crime, and it must be considered that this is an attempt, since the offering of the gift constitutes an act of execution of the crime. This criterion was already outlined in the note of Magistrate Piza Escalante to Voto 461-91 of February 27, 1991, of the Constitutional Chamber, and the Third Chamber of the Supreme Court of Justice has mentioned it in various rulings, although the latter has fundamentally issued judgments related to facts similar to the present one, considering that a consummated crime occurs, through the use of the term "diere," considering that "dar" according to the dictionary of the Royal Academy has among its meanings to offer. This is the criterion that said Chamber has maintained since Voto 183-F-95 of March 24, 1995, to which it refers. *This judge, however, considers that regarding the term "dar", the concept used in common language must be followed, which is a consequence of the principle of legality, and it must be considered that "dar" is to deliver, which is the first meaning found in the Dictionary of the Royal Academy*. However, the action of offering a gift cannot be considered unpunished, since it already implies the performance of an act directly aimed at the consummation of the crime, which could not be consummated because ultimately the gift was rejected by the lawyer of the Constitutional Chamber and an operation was even set up to catch the accused (Art. 24 of the Penal Code)." (the underlining is not from the original)…". The thesis set forth in this dissenting vote is the one that this Chamber endorses, in the sense that the verb "*dar*" must be granted the meaning from common language, and that therefore its content would be identical to "*donar*" or "*entregar*," which are the first meanings in the Dictionary of the Royal Spanish Academy of Language. The reform of article 345 of the Penal Code, through Law 8630, was aimed at clarifying this incongruity of the legislative construction, and it was thus, that in 2008 the criminal offense was constructed to read as follows: "Article 345. Penalty for the Corruptor: The penalties established in the five preceding articles shall be applicable to whoever gives, offers or promises a public official an undue gift or advantage." The foregoing demonstrates the will of the legislator to correct a gaffe included in the previous construction of the incrimination, which made its application impossible in cases of remunerative offer or promise, which should have been considered within the crime of Penalty for the Corruptor, both due to the way these events occur in the real world, and because this construction also encompasses more probable hypotheses of commission. [Nombre015] is accused of *promising a gift to [Nombre001], [Nombre004], [Nombre026] and [Nombre027], all of them public officials, in order to perform acts proper to their functions in relation to a contract in which the Public Administration is interested.* From this perspective, it must be declared that such actions do not constitute the crime punished by the provision of article 343 of the Penal Code at the time of commission of the criminal act, nor any other of the crimes established by the Penal Code, not only because that is not the content of the prohibited act, but also because, as has already been resolved in relation to the other co-defendants, it has not been possible to determine what the specific action was that had to be carried out, or whether the gifts were as a reward for a completed act. In other words, there is a beneficial effect to the legal positions of [Nombre015] regarding the indeterminacy of the facts charged to the alleged victims of the corruptor act, which undoubtedly must concur to produce the nullity of the judgment and declare the acquittal. Furthermore, and this is consistent with a democratic criminal law, it cannot be considered that the promise of the gift is independent of the delivery of the gift, since both moments are univocal and inseparable for the corruptor, who wishes to affect the legally protected interest in crimes against probity. In this sense, also for this reason it is appropriate to order the acquittal in favor of [Nombre015].

XII.- *THE APPEAL OF THE ACCUSED [Nombre021] IS RESOLVED BY MEANS OF A WRITING AUTHENTICATED BY ATTORNEY HUGO SANTAMARIA LAMICQ IN EXERCISE OF HIS MATERIAL DEFENSE.* The accused [Nombre021] appeared before this Chamber to file a cassation appeal and subsequently a conversion of his appeal into an appellate appeal. Of the grounds raised by the accused [Nombre021], this Court of Appeal will proceed to resolve, in the first instance, those defects that constitute fundamental reasons for decreeing the nullity of the judgment and the acquittal of the accused. **First Section.- Defects that by themselves imply the nullity of everything resolved.** **A.** **The cause is time-barred.** In the First Ground of [Nombre021]'s appeal, the erroneous application of the statute of limitations rules enshrined in articles 31, 32, 33, 361, subsection a) and 369 of the Code of Criminal Procedure is alleged. He begins by pointing out that the Court rejects the statute of limitations exception filed by [Nombre021]'s defense. However, the dissenting vote of Judge Camacho Morales disagrees with this criterion and upholds the exception, and refers to the reasoning set forth in the dissenting vote. He considers that the core issue consists of the application of article 62 of Law No. 8422 of October 6, 2004, called the Law against Corruption and Illicit Enrichment in the Public Function, hereinafter LCC, which came into effect on October 29 with its publication in La Gaceta Number 212 of that day. According to the Court itself, had it not been for that provision, the cause would already be time-barred, which is why he proceeds to question this interpretation that incorrectly applies the statute of limitations rules of the procedural law and of the LCC itself, as well as some aspects of the *erga omnes* jurisprudence of the Constitutional Chamber. According to the majority vote, as the statute of limitations period is not reduced by half, as established by article 33, first paragraph of the procedural law, by presumptively applying the provisions of Article 62 of the LCC, the criminal action would become time-barred on November 30, 2007, and not on May 30, 2006. Therefore, he considers that what is important is to determine if that article 62 LCC is applicable to this case. In this regard, he begins his argumentation with the idea expressed in the majority vote, at folio 792, where it is stated that they do not share the defense's thesis in the sense that it concerns a reduction of time limits for the duration of the proceedings and not an issue of the statute of limitations. The difference is of interest, because if it is a control of the duration of the proceedings, we would be in the presence of an issue of rights acquired by the accused and not facing issues of the statute of limitations or application of procedural rules. The control of the duration of proceedings is a human rights issue, the defendant [Nombre021] insists, which would derive from article 41 of the Political Constitution, insofar as it raises the concept of swift justice. Increasing the time limits for controlling the duration of proceedings to the detriment of the accused would constitute a retroactive application of the law to the detriment of acquired rights. However, the judges of the majority vote depart from the criterion of the defense, which in turn rests on what was raised in Voto 4397-99 of 4:06 p.m. on June 8, 1999, which, in its Considering VI, which is *erga omnes*, explains that those terms are not properly of the statute of limitations but rather of reduction of the time limits for the processing of the procedure according to the idea of controlling its duration. But even rejecting this criterion, which would prevent retroactivity to the detriment of acquired rights of the defendant, there would be another criterion, also constitutional, which maintains that statute of limitations rules cannot be applied retroactively unless the legislator expressly provides for said retroactive application. According to the appellant, the Constitutional Chamber, in its Voto 4397-99, clearly established that laws govern towards the future, so their application backward would only be valid by express mandate of the law. In criminal procedural matters, it would not be prohibited for the law to be applied retroactively according to what it itself establishes solely for pending cases. The ground must be upheld. Article 62 of the Law against Corruption and Illicit Enrichment in the Public Function does not expressly contain an indication that it must be applied in pending causes or those to be initiated in the future, so it must be interpreted in a manner consistent with the Political Constitution and the *erga omnes* jurisprudence of the Constitutional Chamber, meaning that the aforementioned regulation will be applicable to the future. That is to say, article 62 of the LCC would only be applicable to causes initiated after October 29, 2004. If it was the will of the legislator to cover causes pending as of that date, they should have expressly indicated it, so that the effects of the later law could radiate to all causes initiated before the law's entry into force. The aforementioned law does not contain transitional provisions or an explanation in the "Statement of Motives" that would give arguments to consider a retroactive application of its provisions. Instead, the legislator's wording allows one to derive an interest in regulating towards the future, which is why verb forms such as "prescribirán" or "regirán" are used, which are foreseen in the Spanish language to imply the future. If the legislator's will were different, they should have expressed it clearly, alluding to the retroactive effects of the later procedural law. Judges, in effect, are prevented from performing functions proper to the legislator, and could not interpret effects that the procedural law expressly does not contain. The latter, above all, when the later procedural law could have retroactive effects contrary to the legal positions of the defendant, limiting their right to defense, their rights of intervention in the process, their right to release or, as now, to validly claim the running of the statute of limitations for the criminal cause. Procedural laws are designed to govern towards the future, so in good logic, and based on their interpretation in accordance with the Political Constitution, only those procedural provisions that have a more benign effect on the legal positions of the defendant would have retroactive effect. In the present case, the defendant [Nombre021] gave a statement after October 29, 2004; however, the cause had been initiated before that date and its provisions were not applicable to it, except for an express legislative provision which does not exist in the present case. It is for the foregoing that the statute of limitations period for [Nombre021] would have occurred as recently as May 30, 2006, and prior to the finality of the declaration of complex processing of this cause in July of that year or the summons to the preliminary hearing in September 2007. Both procedural moments are subsequent to the date on which the cause would have to be declared time-barred. Regarding the issue of declaring the cause as a complex proceeding, this Chamber had already pronounced against the retroactive effects that have been given to the declaration of complex processing of the cause. The reasoning supporting this conclusion has already been expressed when resolving Dr. [Nombre012]'s appeal, to which reference is made to avoid unnecessary reiterations. It is therefore appropriate to declare the cause against [Nombre021] time-barred and acquit them of the crime of Illicit Enrichment that had been attributed to them. **B.** Spurious Evidence. In the second ground of the appeal filed by [Nombre021], the erroneous application of the rules concerning the lifting of bank secrecy is raised, for which the banking evidence used to demonstrate the deposits in their favor is illicit and unusable for the conviction. He argues that his defense objected to the banking evidence coming from the Bahamas. The Court expressly ruled on this issue in Considering II. H. 1. As he explains, said banking evidence coming from the Bank of San José in the Bahamas, required in the CCSS-Fischel case, and provided as evidentiary material in this process, according to exhibits 543, 544 and 545, had been requested exclusively for the cause called CAJA-Fischel and not for this process. He indicates that an alteration of the English translations eliminated that express obstacle that the evidence would only be used in the CAJA-Fischel cause, and it is intended to prove with it the receipt of certificates of deposit by [Nombre021] with funds from ALCATEL and Servicios Notariales QC, which were deposited in the BAC BAHAMAS BANK LIMITED in that country. The defense thesis is that there was no judicial order to lift bank secrecy for the ICE-ALCATEL cause. The Court errs, according to him, because it affirms that the evidence comes from Banco de San José in the Bahamas, and that is its first false statement. It is not the Bank of San José in the Bahamas; it is an autonomous Bank, registered in that place, and not a branch of BAC San José, as the majority Court maliciously pretends to believe. It would involve two different banks and not a simple branch of the same. He alleges that a letter rogatory to the Bahamas was needed to request the banking evidence. If it had been the Bank of San José itself, it would have sufficed to request the information from BAC San José in the country. **His claim is correct and the ground must be upheld.** The bank domiciled in the Bahamas is not a simple extension of BAC San José, but rather a bank that has been founded according to the rules of another country, therefore the procedure to obtain banking information from said institution must be carried out through official channels and, of course, with a judicial order to lift bank secrecy. According to the majority vote (fl.

874) the aforementioned bank evidence obtained for one criminal case could be used for other criminal cases different from those for which it was originally obtained, with an interpretation that would lead to the absurd criterion that the Public Prosecutor's Office would only need to obtain judicial authorization for a single lift of bank secrecy to use that information in countless criminal cases, even decontextualized from those where the intervention was originally obtained. It is evident that this type of sensitive information must be requested, ordered, stored, used, and interpreted in a manner compatible with constitutional regulations. It could not be intended to reduce the value and essential content of the constitutional right to privacy of this type of information, solely for an extended interest of the prosecuting body, which also intends the use of this information without any context of a prior investigation, with a judicial order not expressly issued for said obtaining of information, and with effect in criminal cases not even opened when the original criminal investigation was decided. The usefulness value of bank evidence must be enabled by an entire process of request, obtaining, introduction, and judicial assessment that is contextualized in the criminal case where it has been requested. This latter point is fully compatible with an interpretation of the right to informational self-determination in the case of financial information, and regarding the effects of said information for the demonstration of 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 suspicion presuppositions available at the procedural stage in which the obtaining of the bank evidence is decided. Furthermore, the request must be directed, expressly, to the banking institution that holds the information in its databases. The right to informational self-determination contemplated in the constitutional program of Costa Rica, based on Article 24 of the Political Constitution, in full congruence with the erga omnes jurisprudence of the Constitutional Chamber, requires a certain threshold of suspicion of the commission of an illegal act and a weighing of the proportionality of the measure that impacts fundamental rights, in order to proceed to obtain the information. This must be assessed in each specific case, and therefore the request for the lift of bank secrecy cannot be generic and decontextualized from the case in which it is to be used. It is evident, then, that if the evidence obtained in the Bahamas cannot be used in the present case, the evidentiary connection with the deposits in benefit of [Nombre021] should be suppressed due to having affected constitutional guarantees. Now, the alleged correspondent relationship or reciprocal representation contract between BAC San José and Bahamas Bank Limited is another important matter that has not been demonstrated in this instance, and it is also not known if the aforementioned banks can exchange available information on their accounts by mere internal administrative request for the normal course of their financial activities. The judgment affirms that the order for the lift of bank secrecy from BAC San José was sufficient to lift bank secrecy also in the Bahamas, that is, in another territorial jurisdiction, and, of course, with other applicable legal norms. Bahamas Bank Limited, as the appellant correctly states, is not part of the Costa Rican banking system, so the lift order from the national system cannot affect a banking institution domiciled abroad. Arguing in that sense would lead one to think that an order issued for the national banking system would have to affect international banking, in any geographical context, which does not accord, for example, with the different banking regulations governing financial activity in various countries of the world. The sending of transfers from Costa Rica to another country does not convert the banks receiving said transfer into part of the national banking system. That they receive transfers is, of course, in response to a commercial practice that has been regulated with the objective of avoiding damages and losses to bank clients and to maintain the functionality of the international transfer system. Thus, the evidence obtained without any correspondent contract between the banks, and without the lift of bank secrecy, makes the information obtained illegal and unusable as evidence in the criminal process under examination. The effects already considered of the appeal filed by the defendants **<u>[Nombre001], [Nombre009], [Nombre015] and [Nombre021]</u> also apply. (Appeal visible at folios 17264 a to 17278 of Volume XXXVI), they raise in their brief, authenticated by Attorney José Miguel Villalobos Umaña, the nullity of evidence 588. This appeal was analyzed on the occasion of the study of the challenge by Attorneys Erick Ramos and Federico Morales on behalf of Mr. [Nombre015].** As stated there, the arguments to analyze this legal problem have already been explained earlier, when resolving the appeal filed by Dr. [Nombre012] (A-1). Thus, it is appropriate to apply to the defendant [Nombre021] the same effects that this determination had for the defendant [Nombre012]. The nullity of documentary evidence No. 588 and all evidentiary elements dependent on it is declared, the nullity of the criminal conviction rendered against [Nombre021] is declared, and in its place, he is directly acquitted of all penalty and responsibility. **<u>Second Section. Defects regarding the determination of the fact and the assessment of the evidence to determine the indications that led to the conviction for the crime of Illicit Enrichment.</u> <u>A.</u> Absence of the detailed determination of the fact that the court deems proven, in violation of Article 369 subsection b of the CPP.** The accused alleges that he has been attributed with illicit enrichment for receipt of gifts (dádivas). According to the judgment, in Considering X, folios 1555 in fine and following, the defendant is offered a gift and subsequently paid. In this regard, he questions the attribution of an offer of a gift, when said requirement is irrelevant for the criminal type of Illicit Enrichment. In reality, the receipt of the gift is punished. The offer or promise of a gift has no interest for the criminal prohibition regarding that specific criminal type; it does, of course, for different criminal types, where the offer of the gift is a requirement of the objective type. **The ground must be granted.** The general approach of the appeal in relation to the accused [Nombre021], regarding the fourth, fifth, and sixth grounds, starts from two essential premises: on one hand, an offer of a gift and an acceptance of the same by [Nombre021] has been accused and demonstrated, the Court says. The Court insists, then, on a remuneratory promise that occurs in a meeting at Café Ánfora in the Hotel San José Palacio, at 8:21 a.m. on August 17. Secondly, that Article 346, subsection c) of the Penal Code requires that the delivery of gifts occurs while remaining in office. In this regard, it is discussed, not only, the fractional delivery, but also the fact of five deliveries of money at times when [Nombre021] held no public office whatsoever. In this respect, the appellant is correct. The determination of the fact starts from an incorrect premise, that is, that the receipt of the eventual gift required its prior offer. This latter point, mainly by virtue of the conviction for illicit enrichment, which is an offense that has no connection, and should not have any, with the offer of a gift, that is, a remuneratory promise. The offer of a gift is central, for example, for the crime of Bribery (Cohecho) and for Corruption, since in these crimes the receipt of a gift or the acceptance of a remuneratory promise is directly aimed at performing an act proper to one's functions (improper bribery, Article 347 of the Penal Code) or to perform an act contrary to one's duties or to not perform or to delay an act proper to one's functions (proper bribery, Article 348 of the Penal Code). Thus, when the incriminated action does not require a specific doing or not doing, it would be in the presence of a mere act of illicit enrichment. Now, the imputation of events prior to the receipt of the gifts is achieved with the objective of linking, specifically, [Nombre021] spatially and temporally with the supposed strategies aimed at obtaining the contract for the 400,000 lines, where the intervention of [Nombre021] could have been marginal or of scarce interest. In any case, it is not determined what he did or failed to do; it only attempts to establish [Nombre021]'s responsibility based on a meeting, which, as has already been discussed and analyzed when resolving the preceding appeals, is proven with a restaurant service voucher at the Hotel San José Palacio. This document does not allow deriving the content of what was discussed on that occasion, and if, in effect, there was an effective promise of a gift. Events before and after that meeting do not allow deriving, with the certainty necessary for a conviction, that there was, in effect, an illegal promise that was accepted by those who participated there. Much less is there consistent proof that [Nombre021] accepted a gift that would be delivered in a fractional manner, which is the other element of analysis to consider. As analyzed in the appeal, it would be necessary to additionally assess whether the mere receipt of the gift is an indication of having accepted it, as the Trial Court seems to derive. The way in which the criminal type of Illicit Enrichment is constructed in the Penal Code does not require a prior promise, this is because it is a subsidiary figure that comes into application precisely when there is no proof of a crime against the duties of public office. Political-criminal reasons led to the introduction of the figure of illicit enrichment in the legal system to punish those cases of patrimonial increase of the official where there is no proof of the crime against the duties of public office that motivated that increase. It is a legal strategy to prevent impunity for these patrimonial increases and to bring the officials who hold them to justice. Hence the subsidiary nature of this figure, which would be displaced, then, when there is sufficient proof of the commission of a crime against the duties of public office. In the case of the criminal figure contemplated in the Costa Rican Penal Code, subsidiarity exists when there is proof of proper or improper bribery. This is not the case for the facts imputed to [Nombre021]. In Considering X-D, the issue of the receipt of the fractional payment of the gift is raised. According to the circumstances that the judges of the majority vote consider proven, there would have been an offer of 0.5% of the contract obtained (folio 1570 of the ruling), for which there is no specific determination in the ruling as to why this specific percentage is derived, but it is estimated that on that same day the fractional payment of that 0.5% was accepted. This emphasis is unnecessary, since the criminal type attributed to [Nombre021] does not require a prior promise. However, according to the ruling, not only was the promise of a gift made at that meeting but [Nombre021] accepted it, although it is still not known in exchange for what. The deduction occurs not only, the judges say, from the events that occurred before but also from those that followed. In this regard, there is no proof; no one stated what was said in that meeting, which could have been about any other topic, but there is a fixed conviction of the majority vote. This circumstance affects the defense rights of the accused, not only because he had to defend himself against a circumstance that is alien to the attributed typicality, that is, the remuneratory promise, when, on the other hand, the typical context reproached is for receiving the gift. It is for this reason that the establishment of facts in relation to the typical act of Illicit Enrichment has flaws, and causes, for these reasons as well, the nullity of the ruling against him. **<u>B.</u> The gifts were received when [Nombre021] did not hold the status of public official.** Regarding this topic, there are two claims: on one hand, that there was an acceptance of a gift paid in a fractional manner, that is, that the receipt of the gift is fractional. The criminal type of Article 346, subsection c) requires that gifts be admitted while remaining in the exercise of the office. It is proven that [Nombre021] ceased to be a deputy on April 30, 2002, and therefore, monies received outside that date would not be covered by the criminal prohibition. There would be a problem, at least, with the certificates of deposit received in the month of January 2002, when [Nombre021] was still a deputy. But the ground refers, for the moment, to the transfers and presumed gifts issued after April 30, 2002. The strategy of the conviction would be to link [Nombre021] to the payments made after April 30, 2002, as illicit enrichment, solely because he "accepted" them while being a deputy. In other words, [Nombre021], while he was a deputy, accepted gifts that would be paid in installments extending beyond his term as a legislator. The thesis collapses under its own weight, and affects the establishment of the fact with which he is charged, mainly because said configuration of the criminal type of Illicit Enrichment does not require, and could not do so, the prior promise, and, on the other hand, there is no proof, either, that said promise was verified, as the circumstantial elements in this regard are weak, amphibological, and do not withstand an analysis based on sound criticism (sana crítica). It is for this reason that the judgment must also be annulled for this reason. Now, regarding the payments received when [Nombre021] was still a deputy, the eighth ground of the defendant's appeal is pronounced, where it alleges **ERRONEOUS ASSESSMENT OF THE EVIDENCE WITH VIOLATION OF THE RULES OF SOUND CRITICISM (SANA CRÍTICA), INFRINGING ARTICLES 142, 184 AND 369 SUBSECTION D) OF THE CPP**. It criticizes, in the first place, that it concerns six certificates delivered to [Nombre021]. Considering X-D refers to what it calls the second delivery of the gift to [Nombre021]. The majority vote incorporates into its reasoning the thesis that [Nombre021] received six investment certificates from ALCATEL through a delivery made to him by the company Servicios Notariales QC. The appellant insists that there is an error incurred by the judgment, as there are not six certificates as stated at folio 1579; it is, in reality, four documents, whose numbering appears at folio 1580. All were issued on January 10, 2002, with a maturity date of February 11 of the same year, and acquired by the company QC from Banco Cuscatlán de Costa Rica for the sum of ten thousand dollars each. At Folio 1580, the Judges state that these titles were delivered by the accused [Nombre009] to the defendant [Nombre021] and that the latter admitted them from the former on February 11, their maturity date, and immediately endorsed and deposited them in his account at BAC San José. The Judges refer to evidence 417, which only demonstrates that [Nombre021] endorsed the titles and deposited them in his account, but in no way proves that [Nombre009] delivered them to him or the date on which such an event occurs, and this makes the reasoning void for being irrational and contrary to the rules of sound criticism. These are bearer instruments (títulos al portador), which circulate by simple delivery and whose transfer occurs without the need for endorsement on the back of the document, pursuant to Article 712 of the Commercial Code. According to this thesis, then, the instruments were transferred by simple tradition, so the title of their possessor is not recorded, which makes, for example, the instrument non-replaceable in case of loss, as one of the general rules derived from Article 712 of the Commercial Code. It is for this reason that it cannot be established that they were received directly from [Nombre009], as the judges try to maintain. There is a period of one month that elapses between when [Nombre009] withdraws the instruments and deposits them in his account, so it is possible that [Nombre009] delivered them to any other person, the latter in turn to another, and then the latter had them reach [Nombre021], without it being possible to presume that [Nombre009] gave them directly to [Nombre021]. The appellant questions the legal criterion expressed by the judges, by citing Article 717 of the Commercial Code, which was repealed 21 years ago, in 1990, by Law 7201. This article only referred to the fact that the instrument belongs to whoever has it in their possession, which no one has questioned. And that here, good faith and just title are presumed, as corresponds in application of the principle governing matters of movable property. But from this norm it is not derived, the appellant suggests, that it must be held that the initial acquirer is the one who must 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 determines that the title was transferred from whoever originated it to whoever appears as its holder before the teller or respective official of the banking entity, so in the specific case, it is inferred that it passed from [Nombre009] to [Nombre021]*”. In other words, since a chain of transferors cannot be verified, it must be assumed that it is the original acquirer who delivered it to the final possessor. This is not so, the appellant argues, and this is only true for registered instruments (títulos nominativos), which are transferred by endorsement, and not for bearer instruments, as were those being analyzed. On this, he explains: *“…The characteristic thing is that in these instruments the chain of transferors is absent, which is why it is a bearer instrument, therefore what the pair of Judges misses is what always occurs in this matter, that there is no chain of transferors because the documents are not endorsed. Therefore, it cannot be deduced from the above that it was [Nombre009] who delivered the documents to [Nombre021]. But the Judges also err when they point out that since the instruments have a legend on the back stating that they can only be deposited in the account of [Nombre021], this shows that [Nombre009] delivered them to him. One thing has nothing to do with the other; [Nombre021] receives the instruments from an undetermined person and endorses the documents with that legend to deposit them in his account, without referring at all to such a situation with the participation of [Nombre009]*…”. In general, he questions the entire judicial deduction that the deposit came from [Nombre009], considering it nonsense to suppose that because the deposit was made to the same account as other transfers, therefore, the depositor must have been [Nombre009]. He deems that this conclusion defies the rules of correct human understanding and the rules of commercial law. He estimates that, as it cannot be presumed that the deposit was made by [Nombre009], then that acquisition must be considered legitimate and legally correct, so the conduct would be unpunishable. In other words, the deliveries made when he was still a deputy, as a result of this uncertainty about the receipt of the instruments and their delivery channel, would also lead to the nullity of the ruling, as must in fact be declared. Indeed, the cited norm, Article 717 of the Commercial Code, was repealed, along with other articles of the Commercial Code, by Law No. 7021 of October 10, 1990. Regarding the transfer of bearer instruments, it is clear that this is done by simple tradition, in the sense that a prior endorsement is not needed, as is the case for registered instruments. Thus, for bearer instruments, material delivery is sufficient for their transfer to occur. The absence of a chain of transferors is thus explained by the fact that bearer instruments do not require being issued in favor of a specific person (Article 712 of the Commercial Code) and because their transfer is by simple tradition, even when they do not contain the clause “to bearer”. Civil jurisprudence (cf. Voto 19-88 of the First Chamber of the Supreme Court of Justice, at thirteen hours on May 11, 1988) has said that tradition, as the delivery of the thing, does not transfer ownership by itself, as it is still necessary that the delivery be the result of a legal business producing those effects. This is where the relevant doubt arises in favor of the defendant, regarding the reason for said tradition or material delivery of the documents that were delivered to him, since, as has been raised throughout this resolution, there is reasonable doubt about the reasons for the delivery of the documents. The doubt raised about the connection between the accused [Nombre009] and the delivery of the documents to [Nombre021] is sustained, then, by these two circumstances raised by the appellants: on one hand, the expression “simple tradition” of Article 712 of the Commercial Code, which should be understood in the sense that prior endorsement is not needed, which is necessary as “title” for the transfer of registered instruments. For bearer documents, therefore, material delivery is sufficient, and this fulfills this legal fact contemplated in the norm. The absence of a chain of acquirers that the commercial norm does not require, and the uncertainty of the legal reason for the deliveries of the documents, also operate in favor of the defendant and must be so declared. **<u>C.</u> A repealed criminal type was applied.** The ninth ground of [Nombre021]'s appeal discusses the validity of the criminal type applied in this case to convict him for the conduct of Illicit Enrichment. According to [Nombre021]'s thesis, Article 346, subsection 3) of the Penal Code was tacitly repealed by Article 32 of Law 6872 of June 17, 1983, called the Law on Illicit Enrichment of Public Servants (Ley sobre Enriquecimiento Ilícito de los Servidores Públicos). According to this, the 1983 legislation would be a special law over the general regulation of the Penal Code, thus repealing the criminal types that had been included in said Code and that form part of the new legislation. Article 26 of this 1983 law has several specializing elements. In the first place, the penalty ranging from six months to six years, and, secondly, that it threatened with penalty acts carried out by the former official within the year following the cessation of the office. Article 26 is, by all lights, much more specific and contains elements that encompass more varied conduct, considering illicit enrichment, not only the acquisition of goods of any kind or nature, and a generic provision that absorbs any receipt of money or goods. **The ground must be granted.** It is evident that the criminal provision of Article 346 of the Penal Code was repealed by Article 26 of the 1983 Law, which not only contains a description of the action of Illicit Enrichment but also adds specializing circumstances that allow encompassing more conduct of receiving goods, services, money, etc., which are threatened with a greater penalty. It is not, as the Majority Court says, a matter of two distinct conducts that can coexist because they cover different typical assumptions; it concerns two figures of Illicit Enrichment, where one is general and the other is special, contemplated in a later law, which, according to the rules of criminal interpretation, would repeal the general law, and obligates the application of the special law. The Constitutional Chamber itself, in its Voto No.

11584-2001, considered that some of the subsections of article 346 were repealed by Law No. 6872 of 1983, and that it should be expressly verified by the judges, in each case, whether or not said subsections apply, as is in fact done now when classifying the criminal offense under 346 of the Penal Code as repealed and inapplicable to the case against [Nombre021].<span style='mso-spacerun:yes'> </span>Now then, interpreted as it has been that the applicable article is Article 26 of Law No. 6872 of 1983, it must be taken into account that subsections a) and c) of that criminal offense were declared unconstitutional by the Constitutional Chamber in Vote No.<i>. 1707-95 of 3:39 p.m. on March 28, 1995, </i>and therefore would not be applicable to the species and the actions of [Nombre021] would become atypical. It is only as of the entry into force of Article 45 of Law 8422 of October 6, 2004, effective as of the 29th of that month, that the increase of assets in the exercise of office is again criminalized, which is not applicable to the acts charged because it is a substantive norm in force after those acts, pursuant to Article 11 of the Penal Code. This being so, the criminal offense for which Illicit Enrichment is charged is repealed and therefore it is appropriate to annul the conviction and acquit [Nombre021] of all penalty and responsibility for the acts attributed to him.<span style='mso-spacerun:yes'> </span>Notwithstanding, there is another reason, alleged in the tenth ground of the appeal, which produces the nullity of the judgment, because there was an application of article 346, subsection 3) in violation of the binding interpretation<span style='mso-spacerun:yes'> </span>of the Constitutional Chamber.<span style='mso-spacerun:yes'> </span>If this article were considered in force, which it is not, by virtue of the preceding reasoning, then the cited subsection must be interpreted in accordance with the <i>erga omnes</i> precedents of the Constitutional Chamber, as required by Article 13 of the Law of Constitutional Jurisdiction.<span style='mso-spacerun:yes'> </span>According to the provisions of subsection 3) of the cited Article 346 of the Penal Code, any gift presented or offered in consideration of the official's office becomes illicit, even if he has not performed any lawful or unlawful action, whether inherent to or contrary to his duties. The mere receipt of the gift is already criminal. The Constitutional Chamber, in the aforementioned vote 1707-95, in its Considerando III, already required that the prosecuting body <span class=GramE>must</span> demonstrate the illicit origin of the public servant's assets and that it is not enough to prove the receipt of the money, much less to obligate the accused to prove its lawfulness. For this, the Chamber based itself on what was <i>explained in Vote 5171-93 and maintained it without any doubt, for which it declared unconstitutional the norms of Law 6872 that had replaced the crime of illicit enrichment. But even clearer was the Constitutional Chamber in its Vote 11584-01 of 8:53 a.m. on November 9, 2001, when it heard, through a facultative legislative consultation, the bill of the Law against Corruption that gave rise to Law 8422. At the end of Considerando IV, the Chamber states, drafted by Magistrate Arguedas Ramírez, that the Constitution is violated by attempting to penalize the official for the mere increase of assets WITHOUT DEMONSTRATING THAT SAID INCREASE HAS A NEXUS WITH AN ILLICIT ACTIVITY, thus infringing the principle of innocence by indirectly obligating him to prove the origin of his assets.<span style='mso-spacerun:yes'> </span></i><b>In this aspect, the appeal filed must also be granted. </b>It is not enough to demonstrate that the official's assets have increased; it is also necessary to demonstrate that the cited increase was the product of an illicit activity, because otherwise there would be a reversal of the burden of proof, and it would have to be the official who has to demonstrate the origin of the cited asset increase.<span style='mso-spacerun:yes'> </span>To maintain that this is possible goes in direct contradiction with the precedents cited by the appellant of the Constitutional Chamber, and provides yet another reason to produce the nullity of the ruling.<span style='mso-spacerun:yes'> </span><b><u>D.</u> The ordered forfeiture of CERTIFICATE NUMBER [Valor026] RENEWED ON [Valor027] WITHOUT ANY BASIS, REASONING, OR SUPPORT, is not valid</b>.<span style='mso-spacerun:yes'> </span>[Nombre021] criticizes the forfeiture of the certificate <b>NUMBER [Valor026] RENEWED ON [Valor027], </b>because the court does not provide the basis for the reason for the forfeiture or its causal relationship with the act.<span style='mso-spacerun:yes'> </span>It is not enough, he says, to mention the literal wording of Article 110 of the Penal Code to deem the basis in this regard correct.<span style='mso-spacerun:yes'> </span>It is necessary to commission of the act or if they are effects or gains therefrom.<span style='mso-spacerun:yes'> </span>Only at folios 1896 to 1898 are the requests for forfeiture resolved, which both the Public Prosecutor's Office and the Procuraduría General de la República make in their conclusions.<span style='mso-spacerun:yes'> </span>Point 9 includes a certificate of time deposit with the number [Valor027], which is neither described nor is its nature and reason indicated. At the beginning of folio 1897, the majority thesis is summarized and it is indicated that the effects of the crime, the means or instruments used in its preparation and execution, and the gains derived from its commission are being ordered forfeited, which is nothing more than the reiteration of what is indicated by Article 110 of the Penal Code. All of this leaves an important aspect of the judgment without reasoning and leaves no possibility of knowing what the criterion was by which it was decided that this certificate should be forfeited.<span style='mso-spacerun:yes'> </span><b>He is right in his claim, the ordered forfeiture must be annulled.<span style='mso-spacerun:yes'> </span></b>It has already been said that the mere mention of Article 110 of the Penal Code is not sufficient reasoning to establish the forfeiture of assets in favor of the State. It is for this reason that it is appropriate to annul the decision of the Majority Judges and resolve that this forfeiture is inadmissible and order the return of the corresponding sum to its legitimate owner.<span style='mso-spacerun:yes'> </span><b><u>F.</u><span style='mso-spacerun:yes'> </span>There is no mention of the issue of civil actions or of the order to pay costs against the civil plaintiffs.<span style='mso-spacerun:yes'> </span></b>It is argued that the civil indemnification actions are not rejected and the parties are generously directed to the ordinary civil venue to settle their claims in this regard. He indicates that the defense attorneys opposed the civil actions filed by the public institutions, especially, regarding the defendant [Nombre021].<span style='mso-spacerun:yes'> </span>Despite the fact that the civil action of ICE is said to lack a factual basis to support its claims, which also prevents the court from ruling on the merits thereof (cfr. fl. 1862).<span style='mso-spacerun:yes'> </span>The defects of the civil action regarding the appellant are highlighted at folio 1877. He considers that what was correct according to law would have been the rejection of the civil action and the order to pay costs, and not to interpret that there was a legal solution to allow the filing of the action in the ordinary venue. Regarding the civil action of the Procuraduría General, the court even indicates at Folio 1884 that “... <i>the conclusion is reached that there is no social damage for which all the defendants and eventually third parties must respond jointly and severally</i><span class=GramE>.’’</span> Further on, other errors of that action are added, such as that the Court should almost do the work of the civil plaintiff, for which Folios 1887 and the final paragraph of 1890 are absolutely clear.<span style='mso-spacerun:yes'> </span>He claims, if such are the errors, the corresponding action would be the rejection of the action and an order to pay costs, but the Court prefers to “lend a hand” to the civil plaintiffs. He requests, consequently, that this decision be annulled and both civil actions be deemed rejected, for not meeting the minimum requirements for their consideration. He insists that what is appropriate in the present case is the order to pay costs against the civil plaintiffs in application of Article 270 of the Criminal Procedure Code, by virtue of the multiple errors and defects that the judges themselves recognize exist in their procedures. Additionally to this, he emphasizes that the court fails to fulfill its legal duty<span style='mso-spacerun:yes'> </span>regarding what is established in the law, because no matter how much it is said that the case is complex, the civil defendants cannot be blamed for having contributed to the failure of the actions for not having warned of these errors in a timely manner, when that was not their task. He considers that in a Rule of Law State, a lawsuit for millions of dollars, full of ramblings and legal errors, cannot be permitted, and let everything occur without consequences. If this were done, there would be no way to order civil plaintiffs to pay costs, whatever their conduct. If these are complex cases, like the present one, the civil plaintiffs must take more care when presenting their claims and when litigating.<span style='mso-spacerun:yes'> </span>It is evident that the civil actions should have been rejected and not just omit a ruling on them, as indicated in the previous point.<span style='mso-spacerun:yes'> </span>He requests that the exemption of costs for the civil plaintiffs be annulled and that they be ordered to pay under this item as ordered by the corresponding legislation. The issue of the order to pay costs and the issue of civil actions <span class=GramE>must</span> be elucidated in a new trial in this regard.<span style='mso-spacerun:yes'> </span>This Chamber has already ruled on the issue of civil indemnification actions, the absence of an order to pay costs, and the interpretation made by the majority court regarding this issue, at the time of resolving the appeal of Christian Arguedas in favor of Dr. [Nombre012].<span style='mso-spacerun:yes'> </span>It was considered that what was decided on the issue was a very clear denial of access to justice <span class=GramE>based</span> on formalisms that have no basis in Article 112 subsection d) of the Criminal Procedure Code, an error that must be corrected.<span style='mso-spacerun:yes'> </span>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.<span style='mso-spacerun:yes'> </span>In the same manner, in a remand trial, a decision must be made on the issue of costs, and on whether or not there was plausible reason to litigate: not deciding on the merits of the civil actions caused an error that affects the definition of the issue of costs, which undoubtedly causes grievance to the parties.<span style='mso-spacerun:yes'> </span>It is for this reason that, when resolving the appeal of attorney Arguedas, it was considered that the effects of his challenge <span class=GramE>favor</span> the other civil co-defendants, as it is not based on exclusively personal grounds.<span style='mso-spacerun:yes'> </span>It is for this reason that the judgment has already been annulled in its civil aspect, insofar as it ordered to omit a ruling regarding the substantive right discussed in relation to the civil actions filed, as well as what was decided on costs, and the remand of the process is ordered to the competent court for the new substantiation of these extremes. </span><span lang=ES-CR style='color:black;mso-ansi-language: ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><b><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span>XIII.- <u>THE APPEAL FILED BY ATTORNEY HUGO SANTAMARÍA LAMICQ IN FAVOR OF THE DEFENDANT [Nombre018] (R.I.P.) IS RESOLVED.</u><span style='mso-spacerun:yes'> </span><u>A.</u></span></b><span lang=ES-CR style='font-family:Arial;color:black;mso-ansi-language:ES-CR'> Attorney Hugo Santamaría Lamicq, in his capacity as defense counsel for the accused [Nombre018] (R.I.P.) filed a cassation appeal against judgment No. 167-2011, of 3:00 p.m. on April 27, 2011, issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, both in the criminal and civil aspects. As grounds for the criminal conviction, he invoked violation of due process and lack of reasoning of the judgment, for incorporation of illicit evidence; non-observance of the principle<i> in dubio pro reo</i>, as well as violation of the rules of sound judgment;<span style='mso-spacerun:yes'> </span>illegitimate reasoning due to absence of assessment of elements of decisive value for the solution of the case; erroneous application of Articles 345 and 341 of the Penal Code, with violation of numerals 2 of the Organic Law of the Judicial Branch and 39, 41, <st1:metricconverter ProductID=\"46 in\" w:st=\"on\">46 in</st1:metricconverter> fine, and 154 of the Political Constitution; lack of reasoning for the imposed penalty and injury to the principle of proportionality; also the lack of reasoning regarding the order to pay personal costs. Regarding the civil conviction, as the sole ground for challenge he alleges: <i>“Lack of reasoning of the judgment. Illegal omission of a ruling regarding the civil indemnification action brought by the Procuraduría General de la República. Violation of the Principle of Congruence by Citra Petita. Violation of due process and principles of effective judicial protection and access to justice. Violation of Articles 1, 142, 184, 361, 363, 369 of the Criminal Procedure Code, Articles 2, 5, 152, 153 of the Organic Law of the Judicial Branch; 39 and 41 of the Political Constitution, 155, 277 of the Civil Procedure Code”</i> (Cfr. folio 17048 vto. and 17049 fte.) He explains that the trial court omitted a ruling on the civil indemnification action formulated by the Procuraduría General de la República against his represented party, with the following arguments: <b>(i)</b> Not all the defendants had participated in the criminal acts charged. <b>(ii)</b> Therefore, there is no damage for which all the accused and eventually third parties must respond jointly and severally. <b>(iii)</b> It was necessary to specify the damages and the claims for each “group of jointly and severally obligated parties” (according to determination made in the judgment); and not as was done, giving a global estimate and the request for conviction, as if all the defendants and the legal entities involved were jointly and severally liable debtors for a total damage. <b>(iv)</b> The Procuraduría General de la República, when claiming social damage, could not demand the total joint and several liability of all the civil defendants without differentiating each case, among the various groups of jointly and severally liable debtors. <b>(v)</b> A ruling on the matter obligated the Court to disaggregate the different groups of jointly and severally liable debtors, to specify the attributed acts and, therefore, the damage they could have caused to the Instituto Costarricense de Electricidad, and to the collective and diffuse interests represented by the Procuraduría General de la República. A task that, if carried out by the Court, would involve it in the tasks proper to the civil plaintiff party, compromising the objectivity of the judges and violating due process. <b>(<span class=GramE>vi</span>)</b> The civil defendant parties did not allege the defects of the civil action in previous stages, with which, they have a share of responsibility in the impossibility of the Court to rule on the merits of the allegations, claims, and exceptions formulated. <b>(vii)</b> He alleges the existence of a defective procedural activity, without it being possible to remedy it. The petitioner points out that if a defect exists in the claims of the civil action, it is not admissible to expect the civil defendant to alert about it and, on the contrary, if the civil plaintiff party acted deficiently, it is their responsibility; the foregoing, as ordered by the dispositive principle and its corollaries, the sub-principles of availability of the interested party, of party initiative, of congruence, and of waiver. Regarding the passive joint and several liability and the determination of the admissibility of the claims of the plaintiff <i>“… it is clear that these are aspects of a substantive nature that must ultimately be determined by the Judges, in accordance with the facts held as proven in the case and not a formal defect relating to the admission or processing of the civil action that should have been prevented in accordance with the rules of remedy in numeral 15 of the Criminal Procedure Code.”</i> (Cfr. folio 17052). Further on he adds: <i>“If, according to the facts held as proven by the sentencing court, ‘there is no damage for which all the defendants and eventually third parties must respond jointly and severally’ and it is determined that the Procuraduría General de la República ‘could not demand total joint and several liability from all the civil defendants, without differentiating, as was appropriate in this case, between the different groups of debtors,’ it is true that it is not up to the court in any way ‘to disaggregate the different groups of jointly and severally liable debtors, determine the specific acts attributable to them, and determine the eventual damage that those acts could have caused.’ And it effectively cannot do so by virtue of the principle of congruence, the dispositive principle, and out of respect for the right of defense of the civil defendant. From this perspective and being clear that the ‘defects’ indicated by the court are of a substantive nature, the court should have resolved, in accordance with the elements contained in the final judgment, the matter relating to the civil claims.”</i> (Cfr. folio 17052).<span style='mso-spacerun:yes'> </span>He questions the criterion expressed by the court, as he considers that defects of a substantial nature such as those invoked could not be subjected to remedy and, on the contrary, the situation described by the court obligated them to rule on the merits of the civil actions filed and adds: <i>“… the court must rule in accordance with what was alleged and proven by the parties: The judge takes cognizance of no facts other than those the parties invoke, nor other evidence than that which they present. His judgment must be fixed within the limits of the claims deduced by the plaintiff and that which the defendant knows or controverts; if it goes beyond, it will be ultra petita if it resolves more than what was requested or extra petita if it resolves outside of what was requested, and both hypotheses produce the nullity of the ruling for violating the dispositive principle by resulting in incongruent judgments. For this reason, this characteristic has been called the ‘principle of congruence’ of judgments, and according to it, the court must resolve everything the parties request, but no more and no less…”</i> (Cfr. folio 17054)<span style='mso-spacerun:yes'> </span>He indicates that in addition to incongruence due to extra or ultra petita, there exists incongruence due to citra petita (or minima petita), by failing to resolve one of the points requested, in infringement of the provisions of Article 155 of the Civil Procedure Code, which states: <i>“the judgments must resolve each and every one of the points that have been the subject of debate…”</i>; as also regulated by Article 361 subsection e) of the Criminal Procedure Code, regarding deliberation and voting. All of which generates a defect in the ruling, as established in Article 369 subsection g) in relation to 361 subsection e) and 363 of the Criminal Procedure Code. Therefore, the court should have resolved and, in view of the committed errors, declared the civil action filed without merit, with the promoter having to assume the consequences of their negligent conduct.<span style='mso-spacerun:yes'> </span>He explains that as an effect of the request presented by the party, the preventive attachment of assets owned by [Nombre018] was ordered, specifically, the Property registered in the Public Registry of Property, Province of San José, number [Valor052], vehicles with plates [Valor053], [Valor054], [Valor055] and [Valor056]. All of which caused him damages and losses, given the immobilization of his assets and the impossibility of freely disposing of his property. Additionally, the declaration without merit of the civil claims should have generated the order for damages and losses against the promoter. He states: <i>“The illegal maneuver carried out by the court regarding the lack of ruling on the merits of the civil indemnification action, has as its objective and consequence the rejection of the order for damages and losses that is evidently appropriate. Thus, although the lifting of the attachments is ordered, the court provides that ‘since a ruling regarding the merits of the civil actions and the claims formulated has been omitted, the lawsuit has not been definitively dismissed, which is the normative prerequisite for the admissibility of the order for damages and losses, and on the contrary, the parties may settle their differences in the civil venue, so that a complete adjustment is not given between the provisions of numeral 277 of the Civil Procedure Code and the situation presented in this process, without it being possible to extend the scope of numeral 277 of the Civil Procedure Code by interpretive means, because that would imply an extensive interpretation of a punitive norm.’ The illegal referral to another jurisdiction avoids the just compensation ordered by procedural law by reason of the indicated patrimonial affectation. In this way, the court deliberately and illegally releases the civil plaintiff from compensating the damages and losses caused, leaving it to their discretion to go to another venue or not, making the appropriate compensation impossible.” </i>(Cfr. <span class=GramE>folios</span> 17057 and 17058). He requests that the challenged judgment be revoked in this extreme and that the civil indemnification action filed against [Nombre018] (R.I.P.) be declared without merit <span class=GramE>and that </span>the Procuraduría General de la República be ordered to pay the damages and losses caused by reason of the preventive attachment ordered. Subsidiarily, that the judgment be annulled in this aspect and the remand of the case be ordered.<span style='mso-spacerun:yes'> </span><b><u>B.</u></b> Subsequently, upon the death of the accused [Nombre018] (R.I.P.), attorney Hugo Santamaría Lamicq, requests that a judgment of definitive dismissal be issued in favor of his represented party (cfr. folios 171948 and 171949, 171980, <st1:metricconverter ProductID=\"173380 a\" w:st=\"on\">173380 to</st1:metricconverter> 173382).<span style='mso-spacerun:yes'> </span>The petitioner explains that the accused [Nombre018] died at 11:20 p.m. on November 17, 2011, as stated in the Death Declaration Certificate number 118392 (which he attaches), therefore, the appropriate course is to issue a judgment of definitive dismissal due to extinction of the criminal action because judgment No. 167-2011 issued by the Criminal Court of the Treasury and Public Function of the Second Judicial Circuit of San José, having the cassation appeal filed against it, is not final. The foregoing, in accordance with the provisions of Article 30 subsection a) in relation to 311 subsection d) of the Criminal Procedure Code. Regarding the civil indemnification action, he states that as it cannot survive, in application of the principle of accessoriality, he requests the immediate lifting of the attachments managed by the Procuraduría General de la República, on the property registered in the Public Registry of Property, province of San José, number [Valor052] and the vehicles with plates [Valor053], [Valor054] and [Valor056]. In addition to that, he requests that the cancellation of the mortgage granted by reason of a precautionary measure, unsustainable today, be ordered, and adds: <i>&quot;By resolution of four twenty in the afternoon on November eighth, two thousand four, of the Criminal Court of the Second Judicial Circuit of San José, my defendant was imposed, among other precautionary measures, the posting of a real bond for 200 thousand dollars (United States currency), which was constituted by granting a first-degree mortgage on the Property registered in the Public Registry of Property, Province of San José, number [Valor052], in favor of the Supreme Court of Justice for that amount. Such precautionary measure was lifted in the year two thousand eight, without the respective lien being canceled&quot; </i>(Cfr. folio 171949).<span style='mso-spacerun:yes'> </span>He requests that what has been petitioned be resolved, it being only necessary to corroborate the death of [Nombre018] (R.I.P.).<span style='mso-spacerun:yes'> </span><b><u>THE FILED APPEAL IS RESOLVED. First Section.-</u></b> <b>The request for dismissal due to extinction of the criminal action is granted.-</b><span style='mso-spacerun:yes'> </span>In order to resolve the petition for dismissal, it is necessary to consider the following aspects: <b>(i)</b> The defendant [Nombre018] (R.I.P.) was accused for acts described throughout the accusation formulated by the Public Prosecutor's Office (from folio <st1:metricconverter ProductID=\"422 a\" w:st=\"on\">422 to</st1:metricconverter> 434), admitted by the Criminal Court of the Treasury and Public Function, by resolution of four in the afternoon on October seventh, two thousand eight (cfr. folios <st1:metricconverter ProductID=\"10421 a\" w:st=\"on\">10421 to</st1:metricconverter> 10816). <b>(ii)</b> After the oral and public trial was held, by majority vote, [Nombre018] (R.I.P.) was declared <i>&quot;... a co-perpetrator responsible for a crime of PENALTY OF THE CORRUPTER for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY regarding [Nombre027], and perpetrator responsible for a crime of PENALTY OF THE CORRUPTER for PROPER BRIBERY in relation to [Nombre026], both to the detriment of PROBITY IN PUBLIC FUNCTION, imposing a penalty of FIVE YEARS OF IMPRISONMENT for the first and FIVE YEARS OF IMPRISONMENT for the second, for a total of TEN YEARS OF IMPRISONMENT, sanction that must be served in the place and form determined by the respective penitentiary regulations, once the pre-trial detention that he has served has been deducted.&quot;</i>.<span style='mso-spacerun:yes'> </span><b>(iii)</b> Attorney Hugo Santamaría Lamicq, in his capacity as defense counsel for the accused [Nombre018] (R.I.P.) challenged the referenced judgment. <b>(iv)</b> The defendant [Nombre018] (R.I.P.) died in San José, in the Intensive Care unit of Hospital San Juan de Dios, at 11:20 p.m. on November 17, 2011, due to respiratory failure, COPD exacerbation<span style='mso-spacerun:yes'> </span>COPD IV (Cfr. folios 171950 and 171981). <b>(v)</b> But in addition to the argument presented by the technical defense of the accused, this Chamber observes that an additional cause of extinction of the criminal action has operated, the statute of limitations. According to the parameters established <i>supra</i> in the matter of the statute of limitations for the criminal action, it is established that the initial limitation period for the criminal action of the accused [Nombre018] (R.I.P.) was five years for the crime of penalty of the corrupter for aggravated corruption in the modality of improper bribery (according to the relationship of Articles 31 of the Criminal Procedure Code; as well as 340, 342, and 345 of the Penal Code, since the maximum term of the penalty is five years); whereas regarding the crime of penalty of the corrupter for proper bribery, the limitation period is six years (according to the relationship of Articles 31 of the Criminal Procedure Code; as well as 341 and 345 of the Penal Code). Given the impossibility of applying Article 62 of Law No. 8422, it must be considered that after the initiation of the criminal procedure, these indicated periods (five and six years, respectively) are reduced to half for the purposes of the interruption and suspension of the statute of limitations (that is, two and a half years, and three, respectively). It is evident in the case file that the accused [Nombre018] (R.I.P.), was questioned on the first day of November two thousand four (cfr.

folio 767, Volume II) and the next act interrupting the statute of limitations occurred when the preliminary hearing was convened for the first time (as established in Article 33 of the Code of Criminal Procedure (Código Procesal Penal)), a procedural act that took place on September tenth, two thousand seven (ruling of one thirty p.m. on December tenth, two thousand seven, folios 8452 and 8453, Volume XX); consequently, the extinction of the criminal action was caused, but only with respect to the first of the attributed offenses, that is, for the offense of penalty of the corruptor for aggravated corruption in the modality of improper bribery. In any case, the death of the accused [Name018] (R.I.P.) having been verified, in accordance with the provisions of subsection a) of Article 30 of the Code of Criminal Procedure (Código Procesal Penal), the criminal action filed against him is declared extinguished, and consequently, pursuant to the provisions of Article 311, subsections d) and e) of the same normative text, a definitive dismissal (sobreseimiento definitivo) is ordered in his favor for one offense of PENALTY OF THE CORRUPTOR for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY regarding [Name027], as well as for one offense of PENALTY OF THE CORRUPTOR for PROPER BRIBERY in relation to [Name026], both to the detriment of PUBLIC FUNCTION PROBITY. By virtue of what has been resolved and for procedural economy, a ruling on the grounds of the appeal filed is omitted with respect to the criminal liability of the defendant [Name018] (R.I.P.). **Second Section.- Regarding the civil claims.-** Regarding the civil claims filed, this Chamber has already accepted the objections presented by attorney Cristian Arguedas Arguedas, who challenged the lower 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 (ICE); applying the extensive effect and ordering a remand for a new proceeding on these claims in accordance with the Law. However, as has been resolved on other occasions *(Cf. from the Tribunal de Casación Penal, rulings No. 492-F-1998, of ten hours twenty minutes on July thirteenth, nineteen ninety-eight; No. 437-2006 of nine hours on May twelfth, two thousand six; as well as from the Sala Tercera de la Corte Suprema de Justicia, rulings No. 861-2002, of ten hours on August thirtieth, two thousand two and No. 67-2004, of eleven hours five minutes on February sixth, two thousand four)* the judgment of dismissal or acquittal does not imply an impossibility to rule on the civil action or its automatic rejection; moreover, the Sala Constitucional de la Corte Suprema de Justicia, in ruling No. 3603-93 of fourteen hours and two minutes on July twenty-seventh, nineteen ninety-three, established that upholding a civil action for damages in an acquittal judgment did not constitute a violation of the guarantee of due process, nor of the right of defense: *“THIRD: Regarding the point under analysis, this Chamber considers that there is no violation of the principles of due process in the appealed judgment, since Articles 11 and 398 of the Code of Criminal Procedure (Código de Procedimientos Penales) provide the necessary legal basis to allow the judge to rule on the Civil Action for Damages and uphold it even when the judgment is one of acquittal. FOURTH: In relation to the acquittal judgment, there are several scenarios in which it can be issued, but in all cases of acquittal, what is affirmed is the non-punishability of the accused, without this implying that his innocence is being affirmed, because this is not the case in all acquittal scenarios. Thus, the content of the acquittal no longer implies the non-existence of the crime, but has evolved to become a negative institution whose content translates into the non-punishability of the accused; however, based on the fact that the criminal action and the civil action are different and independent from each other and proceed together only for reasons of procedural economy, the fact that one is acquitted regarding the criminal action does not imply that one must also be acquitted regarding the civil action. Thus, acquittal for purely criminal reasons does not prevent a ruling on the civil action and specifically its acceptance by the criminal authority, in accordance with Article 11 of the Code of Criminal Procedure (Código de Procedimientos Penales), which, in relation to Article 398 of the same normative body, empowers the Judge, even when acquitting, to order the requested restitution, indemnification, or reparation. This being so, the application of such articles by the judge is in compliance with the principle of legality, which is a fundamental guarantee integral to Due Process. Therefore, it is not possible to admit that the Court has failed to comply with Due Process, since its action is fully protected by procedural norms.”* The preceding citation, despite mentioning norms of the Code of Criminal Procedure (Código de Procedimientos Penales), is fully applicable to what is regulated in the current Code of Criminal Procedure (Código Procesal Penal). The third paragraph of Article 40 of that normative body provides on the subject: *“The acquittal judgment shall not prevent the court from ruling on the validly exercised civil action for damages, when appropriate.”* A hypothesis equally applicable in the case of judgments of definitive dismissal (sobreseimiento definitivo), whether due to the statute of limitations of the criminal action (since the causes for civil statutes of limitations are different from those established in criminal matters), or due to the death of the civil defendant, **although in this case the procedure established in the civil jurisdiction must be followed in order to provide representation in the criminal process to the estate of the civil defendant** [Name018] (R.I.P.). A thesis consistent with the provisions of Article 96 of the Criminal Code (Código Penal): *“… The extinction of the criminal action and the penalty shall not produce effects with respect to the obligation to repair the damage caused, nor shall it prevent the seizure of the instruments of the crime.”* For procedural economy, an express ruling on the objections formulated is omitted, as they deal with substantive aspects that must be examined precisely in the remand already ordered regarding the claims of the civil action for damages of interest. **Third Section.- On attachments and others.** Attorney Hugo Santamaría Lamicq requests the lifting of the attachments managed by the Procuraduría General de la República on the property registered in the Public Property Registry (Registro Público de la Propiedad), province of San José, number [Value052] and vehicles with license plates [Value053], [Value054] and [Value056]; he also requests that the cancellation be ordered of the mortgage granted by reason of a precautionary measure (medida cautelar) that is currently unsubsisting, adding: *“By resolution of sixteen hours twenty minutes on November eighth, two thousand four, from the Criminal Court (Juzgado Penal) of the Second Judicial Circuit of San José, my defendant was imposed, among other precautionary measures, the provision of a real bond (caución real) for 200 thousand dollars (United States currency), which was constituted by granting a first-degree mortgage on the Property registered in the Public Property Registry (Registro Público de la Propiedad), Province of San José, number [Value052], in favor of the Corte Suprema de Justicia for that amount. Such precautionary measure was lifted since two thousand eight, without the respective lien being canceled”* (Cf. folio 171949). In the *sub examine*, this Chamber verified that indeed, by resolution of fourteen hours thirty minutes on March eleventh, two thousand five, the Criminal Court (Juzgado Penal) of this judicial circuit accepted the attachment request made by the Procuraduría General de la República and, regarding the accused [Name018] (R.I.P.), the following assets were disposed: 1) vehicle make Volkswagen, model 2001, license plates [Value053]; 2) vehicle make BMW, model 1989, license plates [Value054]; 3) vehicle make Mercedes Benz, model 1985, license plates [Value055]; 4) vehicle make Toyota, model 1976, license plates [Value057]; 5) properties located in Partido de San José, registration numbers [Value058] and [Value052] (cf. folio 84 Docket of civil action for damages). However, in a subsequent resolution (of eleven hours on July twenty-first, two thousand five, folio 311 of the docket of civil action for damages) and at the request of the defense counsel for [Name018] (R.I.P.), it was ordered to lift the previously decreed attachment regarding the property in Partido de San José [Value058] because said property is subject to the family patrimony regime. Nonetheless, in view of the remand ordered for the discussion of the civil claims, the request for cancellation of the attachments carried out is rejected. On the other hand, this Court verifies that by resolution of sixteen hours twenty minutes on November eighth, two thousand four, the Criminal Court (Juzgado Penal) of the Second Judicial Circuit of San José imposed on the defendant [Name018] (R.I.P.), among other precautionary measures, the provision of a real bond (caución real) in the sum of two hundred thousand dollars (cf. folios 445 to 468 of the Docket of Precautionary Measures). The accused, in order to cover the imposed real bond (caución real), constituted a first-degree mortgage on property number [Value052], by means of deed number [Value059] of notary [Name086] (cf. folios 481 to 486 of the Docket of Precautionary Measures). Consequently, the lower Court is ordered to proceed with the return of any bond (caución) provided in favor of [Name018] (R.I.P.) for the concept of a precautionary measure; ordering the cancellation of the first-degree mortgage on the property registered in the Public Property Registry (Registro Público de la Propiedad), Province of San José, number [Value052], in favor of the Corte Suprema de Justicia, granted as a real bond (caución real) in the sum of two hundred thousand dollars.

**XIV.- APPEAL FILED BY THE PUBLIC PROSECUTOR'S OFFICE (MINISTERIO PÚBLICO).** Attorneys Maribel Bustillo Piedra and Criss González Ugalde, representatives of the Public Prosecutor's Office (Ministerio Público), file a cassation appeal by adhesion to the cassation appeals filed by the parties, against resolution No. 167-2011, of 3:00 p.m. on April 27, 2011, issued by the Criminal Treasury Court (Tribunal Penal de Hacienda) of the Second Judicial Circuit of San José. In the sole ground invoked, *“erroneous interpretation of the constitutional norm of Article 24 of the Political Constitution (Constitución Política) and non-application of numeral 7 of the same normative body”* is alleged (Cf. folio 171422). They explain that in this same case, the Criminal Court of the Public Treasury (Tribunal Penal de la Hacienda Pública) of the Second Judicial Circuit of San José, by resolution of eight hours on May fourteenth, two thousand ten, ordered: *“SECOND PART: By unanimity, the protest for defective procedural activity is partially rejected. There is no basis to declare lawful the evidence referred to in points 563, 564, 574 to 581, 584 and 585 and consequently, neither to admit it as evidence for better resolution (...)”*. The foregoing was in response to a protest raised by them, after the judge of the intermediate stage, in the order to open trial, denied the use of the evidentiary material related to various judicial assistance requests made to the Republic of Panama, specifically evidence points 563, 564, 574 to 581, 584 and 585. The base argument for the exclusion of the evidence alluded to the necessity of a request by a Costa Rican judge to collect it, as the lifting of bank secrecy had to be ordered. They recount that it was established regarding the matter of interest: *“-under the protection of the Costa Rican Fundamental Law, the restriction of the right to privacy for the investigation of criminal matters is appropriate provided that: i) there exists an order from a Court of the Republic that so determines, a condition required by the cited constitutional norm insofar as it establishes that it is the ‘Courts of Justice’ that are competent to order the seizure, registration, or examination of private documents, a requirement also stipulated in Articles 2 and 3 of the Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications (Ley sobre Registro, Secuestro, Examen de Documentos Privados e Intervención de las Comunicaciones), No. 7425, and 107 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), among others; and ii) when it is ‘absolutely’ indispensable to ascertain the truth, in accordance with the constitutional provision and the ordinary norms outlined, with Article 2 of the special legislation determining its usefulness as proof of some criminal conduct.(...)Hence, the jurisdictional authorization, far from being a mere formality, legitimizes the ordered intrusion into a person's private sphere, attributing to such body the responsibility of admitting it only when strictly indispensable. (...) In summary, the impartial, independent, and previously constituted judge is the competent body to make the decision to affect the right to privacy of the holder (as the Sala Constitucional has also interpreted, among others, in resolution No. 1427-1996). It is not, then, a function nor a power of the representatives of the Public Prosecutor's Office (Ministerio Público), nor of the Attorney General of the Republic (Fiscal General de la República), to request and access confidential information about persons. As interpreted from the constitutional norm cited above, the system of guarantees in force in Costa Rica determines that the only competent body to weigh and order the interference in the private sphere of individuals is a Court of Justice of the Republic. (...) Lastly, it is important to highlight that although bank secrecy does not have constitutional but rather legal rank (in this sense, for example: resolutions No. 3229-1995 and No. 5507-1994 of the Sala Constitucional of the CSJ), the truth is that insofar as it entails the protection of the privacy of current accounts, it is a guarantee in favor of the account holders that there exists a prior jurisdictional authorization to access its content. (...) Regarding the privacy of other forms of registration of private information, regardless of the place where such data is located, the conditions stated in the constitutional norm and its legal development subsist when its evidentiary effectiveness is sought in a local judicial process. In other words, if for the purposes of a criminal investigation the seizure and analysis of private documents safeguarded in a financial entity located abroad, which does not have a legal domicile in Costa Rican territory, is required, the guarantees and requirements mentioned in the previous section must be complied with. Acting in a contrary manner implies the violation of the described fundamental right and its unlawfulness, as determined by the second paragraph of numeral 181 of the Code of Criminal Procedure (Código Procesal Penal).(...)To conclude, the obtaining of private elements of conviction originating from financial entities located abroad requires the observance of the same guarantees that govern the collection of such information from sources located on national soil. Thus, if jurisdictional authorization is part of the condition for accessing the content of bank accounts, operations, and other financial data contained in local registries, such requirement also governs the obtaining of data of a similar nature from foreign sources. Rather than a mere requirement, said condition determines that, prior to such interference, a jurisdictional authority instituted for that function is the one that proceeds to assess the proportionality of the affectation of such right; that is, the necessity of the action, as well as its suitability to achieve the proposed end and the conformity between the latter and the measure. Only after this exercise has been carried out by whoever has the competence and legitimacy to do so, the intervention in the sphere of protection indicated above occurs justifiably, and the data obtained in national and international territory are clothed with lawfulness. (...)Therefore, if for the limitation of the right to privacy, jurisdictional authorization is constitutionally required, it should have been managed in this manner prior to the request for private information, especially since, in all matters, domestic Costa Rican law is respected for its request and it is required for its processing and execution. (...)It is important to indicate that the so-called jurisdictional order is not addressed to the body of the requested country, in this case to the competent authority of Panama, for it to lift the privacy of the holder of that fundamental right; rather, it has the effect of internally guaranteeing this holder the prior review by the judge invested to perform such function. Thus, such authorization extends insofar as the concurrence of the requirements demanded by national law is considered, under the principle of proportionality and due process. It is not, then, a limitation on Panamanian sovereignty, given that the jurisdictional resolution is not addressed to the indicated State, but is a requirement specific to our domestic law which must be respected. Consequently, a harmonized interpretation of the TALM with the constitutionality block determines the validity of the latter given that the Treaty does not have the virtue of disapplying Article 24 of the Political Constitution (Constitución Política). (...) In sum, the reasoned order of a Court of Justice of the Republic lifting the guarantee of privacy is what vests legitimacy and makes the intrusion of the prosecutorial power into that sphere of individual action reasonable”* (Cf. folios 171423 to 171425). They explain that at the beginning of the investigation, based on various indications, it was considered that the defendants, in order to evade judicial and administrative controls, had established bank accounts in the name of legal entities in the Republic of Panama, seeking to eliminate traces of the crime (with accounts outside Costa Rican territory); for which reason, the Public Prosecutor's Office (Ministerio Público), upon analyzing the regulations, considered it appropriate to use the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (TALM) and request international judicial cooperation, because the basis of that cooperation *“lies in the territorial limitation of the scope of competence of state jurisdictions, in the impossibility of the authorities of the Requesting State to gather evidence outside its jurisdictional territory, 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 must be produced. This cooperation thus aims to overcome borders, ensuring that these are not an obstacle to crime investigations by the competent authorities and that criminals do not find refuges and subterfuges to hide both materially and legally, attending to legal labyrinths”* (Cf. folio 171426). They consider that when the Preamble establishes the desires to strengthen and facilitate cooperation, with full respect for the internal legislation of each State, it means *“that at the time of its subscription, all States Parties, attending to their own legislation, are legitimized with respect to their internal legislation for the subscription of said treaty, since that legal instrument does not contravene the constitutions and legislation of each of the States Parties. Now, Article 2, point 5 of the TALM is what indicates the manner in which it will be processed, specifically determining: ‘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 the actions requested within Central American countries in criminal matters must be executed in accordance with the norms of the executing State, that is, the procedural norm of its own country. They detail the procedure followed to obtain the excluded evidence, pointing out that the requests were made from the Fiscalía General to the Procuraduría General de la República of Costa Rica; which, in its capacity as central authority of the referenced treaty, forwarded the petition to its counterpart in Panama, that is, the Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional; to then transfer the request to the Procuraduría General de la Nación of the Republic of Panama, which sends the requirement to the Fiscalía de Panamá, the judicial authority authorized for the lifting of bank secrecy in Panama. The Fiscalía notifies the Panamanian banking authorities and requests the information on bank accounts. Once the data is collected, it is sent to the Panamanian Fiscalía, sent to the Procuraduría General de la Nación, then to the Dirección Nacional de Ejecución de los Tratados de Asistencia Legal Mutua y Cooperación Internacional, a unit that delivers the information to Costa Rica, first to the Procuraduría General de la República of Costa Rica, then to the Fiscalía General. In support of their position, they cite the dissenting opinion of resolution No. 499-2011 of the Sala Tercera de la Corte Suprema de Justicia and argue that according to the accusatory principle inherent in a democratic State, the investigative acts correspond to the prosecutor, hence they qualify as contradictory and illegal that in our legal system it should be the judge who must make the request before the Procuraduría General de la República in its position as central authority, according to the treaty. They criticize the lower Court's use of ruling No. 70-2005 of the Sala Tercera, as they believe it discusses a different scenario. They are opposed to the requirement in our country that a judicial authority orders the lifting of bank secrecy being applied to lift bank secrecy abroad. They consider the scope given to Article 24 of the Political Constitution (Constitución Política) to be extensive, as it affects Panamanian authorities and their territory, when the constitutional norm is circumscribed only to our national territory. They state that in criminal matters the principle of territoriality operates (as a manifestation of State sovereignty); therefore, the law of the state is that applied to all inhabitants of its territory and for acts committed in its nation. When referring to *“Law No. 7425 on Registration, Seizure and Examination of Private Documents and Intervention of Communications (Ley No.7425 de Registro, Secuestro y Examen de documentos privados e intervención de las comunicaciones),”* it is clear that, as derived from the principle of constitutional sovereignty, its competence corresponds to the Courts of Justice of Costa Rica, not to other States, and when it refers to the registration, seizure, or examination of any private document, it refers to documents located in Costa Rica, not in other States. In support of their thesis, they retake the content of Article 2 of Law No. 7425, which alludes to the personal execution of the diligence by the judge, to conclude that, with the documents being abroad, the Costa Rican judge would lack competence due to the principle of sovereignty. They cite ruling No. 1061-2008 of the Sala Tercera, which, in reference to Article 132 CPP, reaffirms the impossibility of a court to constitute itself in a place outside national territory; likewise, they reproduce Articles 1 and 2 of the Organic Law of the Judicial Branch (Ley Orgánica del Poder Judicial), regarding the attributions granted to the Judicial Branch (Poder Judicial). They add: *“The establishment of an order from the Costa Rican judge in that sense would be, on one hand, an invasion of the competencies and attributions of foreign judicial authorities, and also empty actions, because since the private documents are not in our State, the order per se ceases to have meaning and validity”* (cf. folio 171436). It is insisted that as established by the TALM, the execution in the collection of the diligences requested by the Requesting State must be done in accordance with the norms of the Requested State. They indicate that upon reviewing jurisprudence from other countries, such as the case of Spain, the majority criterion advocates that diligences carried out abroad through a letter rogatory cannot be supervised by Spanish legislation or jurisprudence, but rather in accordance with that of the country where they took place. They cite several pronouncements, among them STS of March 26, 1995, which upheld the validity of telephone interceptions carried out in Italy in accordance with Italian norms, for acting in accordance with what is established in the aforementioned Article 3 of the 1959 Convention on Mutual Assistance in Criminal Matters. Likewise, they mention English precedents (R v Quinn 1990, establishing that English judges cannot expect British procedural requirements to be followed in other jurisdictions) and Brazilian precedents (the Superior Court of Justice of Brazil, No. 2.382 SP(2010/055667-6) issued in Brasilia on October 26, 2010, ordered that what matters in judicial assistance requests is the law of the requested State). Finally, they conclude: *“Consequently, given that Article 24 of our Political Constitution (Constitución Política) is not applicable in Panamanian territory, while the TALM does have authority superior to Costa Rican and Panamanian laws, if the documentary evidence is located in Panamanian territory, and was collected in that territory, respecting the rights and guarantees established in the Constitution of that country, and is remitted to our country in accordance with the procedure established in the TALM, such evidence is legitimate and must be incorporated into the criminal process”* (Cf.

folio 171439). The appellants consider that the elimination of the evidence originating from Panama (evidence Nos. 563, 564, 578, and 579) resulted in the impunity of the facts of counts 334 and 335, as well as the exercise of the punitive claim, and therefore they request that the appeal be granted, that evidence number 588 be kept intact, and that the challenged judgment be partially annulled regarding the part of the accusation related to "[Nombre012] and the government of Taiwan" starting from fact number 323 of the statement of facts, and that a remand for new proceedings be ordered.

XV.- THE APPEAL FILED BY THE PUBLIC PROSECUTOR'S OFFICE IS RESOLVED.- All fundamental rights are born limited because they are exercised within society; however, the degree or magnitude of their affectation is historically and spatially relative; that is, their scope or the establishment of restrictions vary over time and according to each legal system, in accordance with criteria of public order, morality, good customs, and the rights of third parties (HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). In domestic national law, the Political Constitution in Article 28 establishes an unbreakable limit: *Article 28.- No one may be disturbed or persecuted for the expression of their opinions or for any act that does not violate the law. Private actions that do not harm public morality or order, or that do not harm a third party, are beyond the reach of the law.* Consequently, despite fundamental rights being subject to certain restrictions, only those necessary to make the validity of democratic and constitutional values possible are legitimate; it is not enough for it to be useful, reasonable, and timely; there must be a compelling social need, hence it is said that only limitations aimed at satisfying a public interest are justifiable, always opting for those that restrict the protected right to the least extent (Cf. HERNÁNDEZ VALLE, Rubén, El derecho de la Constitución, Tomo II, p.291). The Public Prosecutor's Office raises its disagreement because evidence provided to the process (Nos. 563, 564, 578, and 579) and essential from its point of view was declared unlawful, but the indifference to the issue of the potential affectation of fundamental rights is striking, because even though the sole ground raised (*"erroneous interpretation of the constitutional norm of Article 24 of the Political Constitution and non-application of numeral 7 of the same normative body"*) contains in its title a reference to the constitutional norm that protects the right to privacy, the content of its argument seeks to legitimize an interpretation on the application of the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama (T.A.L.M.), completely alien and opposed to the protection of that right as it has been regulated in our legal system, even though it is clear that the criminal process of interest will take place within the national territory, making it obvious that in that context respect for the principle of legality established in Article 1 of the Code of Criminal Procedure was required: *"No one may be sentenced to a penalty or subjected to a security measure, except by virtue of a process conducted in accordance with this Code and with strict observance of the guarantees, powers, and rights provided for persons. The non-observance of this guarantee rule established in favor of the accused may not be used to their detriment."* And in an action consistent with the provisions of Article 63 ibidem: *"In the exercise of their function, the Public Prosecutor's Office shall adapt their actions to an objective criterion and shall ensure the effective fulfillment of the guarantees recognized by the Constitution, International and Community Law in force in the country, and the law…"* (the bolding does not correspond to the original), because ultimately, applying the T.A.L.M. did not have to be incompatible with respect for due process, the right of defense, and the fundamental rights enshrined in the Magna Carta. This Chamber was able to verify that the Criminal Court for Treasury and Public Function Matters, by means of a **resolution at sixteen hundred hours on October seventh, two thousand eight**, when issuing the order to open trial, granting a defective procedural action filed by the defense of the accused [Nombre012], ordered the rejection of the evidence that is of interest here to the Public Prosecutor's Office. On that occasion, the judge recognized that the Treaty on Mutual Legal Assistance in Criminal Matters between the Republics of Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama *"... constitutes an international legal tool precisely to streamline cooperation between the States Party to it, with regard to criminal matters. One of the specific objectives of this regulation is to avoid the processing of this mutual legal assistance through diplomatic channels; such situation determines that the norms of the Bustamante Code or another general provision for international cooperation are not applicable to the case, as a special norm exists... The provision presupposes a more expeditious, informal (in administrative aspects, not in judicial aspects), and agile procedure, for the benefit of the right to swift and complete justice; dispensing with diplomatic channels and the formal rigors established in the Convention on Private International Law."* (Cf. folios 10570 and 10571). But even recognizing the importance or advantages of the instrument, its purposes of international cooperation in the processing of criminal cases, and the desire to avoid impunity for criminal conduct; later it reflects and specifies core points on the subject. It retakes the content of Article 24 of the Political Constitution and establishes: *"As can be seen, the norm guarantees the right to the inviolability of private documents and communications of the inhabitants of the Republic... A first detailed approach to the subject allows evidencing that the provision makes it clear that the documents (the topic that now concerns us) and records that are protected under said constitutional principle are private ones, which generates a direct effect on the case, since the jurisprudential precedents presented by the Prosecutor's Office to justify its action are cases of public documents, which as such do not present any special regulation in our national regulation, except for issues of authenticity which is not the reason for discussion... A clear example of the veracity of what has been said is that the Costa Rican Code of Criminal Procedure, regarding publicly accessible documents, allows direct investigation by the Public Prosecutor's Office without any judicial intervention, because as their name indicates, they are open-access documents without any protection of the right to privacy"* (Cf. folio 10575). After reflecting on the precautions foreseen by the legislator for issuing a regulation limiting the fundamental right to privacy (a law approved by a qualified majority), it mentions Article 201 of the Code of Criminal Procedure which establishes: *"In relation to the interpretation and seizure of communications and correspondence, the provisions of the special law referred to in Article 24 of the Political Constitution shall be observed."* This regulation is precisely the Law on Registration, Seizure, and Examination of Private Documents and Intervention of Communications, which requires the issuance of a duly reasoned jurisdictional resolution to admit any invasion into the sphere of citizens' privacy. The judge highlights that during the preliminary hearing it was pointed out that treaties, as established in constitutional Article 7, have a rank superior to law, but that this superiority does not reach the Political Constitution, whose Article 24 requires the issuance of an express and reasoned resolution. And it adds: *"The prosecutorial representation has maintained that said instrument is superior to the Political Constitution itself, which we must emphatically reject. The Constitutional Chamber has maintained that international instruments on human rights have a validity superior to the Constitution itself insofar as they integrate the constitutional framework (See among others votes 68-98, 1319-97, and 2313-95, all from the Constitutional Chamber), but not all instruments are so, only those that have that specific normative framework, namely the subject of human rights"* (Cf. folio 10576). A character that the judge correctly denies to the T.A.L.M., who adds: *"Furthermore, the content of granting them an efficacy superior to the constitutional framework is not to derogate what has already been established by the internal charter, but to allow for better regulation or an expansion of the spectrum, which is not the scenario here. (...) In the case of private information, which by constitutional provision required a judicial order to access, the logic within the constitutional framework was that the Criminal Court of the Second Judicial Circuit of San José, acting as the Criminal Court for Treasury and Public Function Matters, was the one called upon to order the lifting of the privacy of such information and to request (through the Attorney General's Office of the Republic) that the Panamanian authorities, in application of the referred treaty, send it to the corresponding Judge in that nation so that they could analyze if, in their opinion, it was appropriate (in accordance with their internal legal system) to grant access to the information protected by the right to information"* (Cf. folio 10576). The legality of evidence numbers 563, 564, 574 to 581, 584, and 585, again becomes controversial at the start of the oral and public debate, when the Public Prosecutor's Office tries to revive it and incorporate it into the evidentiary material of the adversarial proceedings. It was argued that the judge of the intermediate stage had been mistaken in classifying as illegal the evidence obtained from financial entities and the Public Registry of the Republic of Panama, related to Inversiones Denisse S.A. and linked to the accused [Nombre012], from Banco Alemán Platina, the company NCR Holding S.A., and UTS Holding S.A. associated with the defendant [Nombre018] (R.I.P.); insisting on the validity of the procedure, carried out in accordance with what the T.A.L.M. established. Nevertheless, the trial court, upon resolving the objection, denied it, through **resolution at eight hundred hours on May fourteenth, two thousand ten**, using as support what is stipulated in Article 24 of the Magna Carta, that is, the right to privacy and the secrecy of communications, explaining that even though the constitutional precept opens the possibility of an exception to that right, it required the enactment of a law (approved by two-thirds of the deputies of the Legislative Assembly) and which we know corresponds to No. 7425, Law on Registration, Seizure, Examination of Private Documents and Intervention of Communications, which requires a duly reasoned order issued by a judge of the Republic, which includes a proportionality assessment (on the need for intrusion into the private sphere to ascertain the truth of the facts) and the verification of an indication of a criminal offense. They state in the cited resolution: *"... the impartial, independent, and previously constituted judge, is the competent body to make the decision to affect the right to privacy of the holder (as the Constitutional Chamber has also interpreted, among others, in resolution No. 1427-1996). It is not, then, the function, nor is it authorized, of the representatives of the Public Prosecutor's Office, nor of the Attorney General of the Republic, to request and take cognizance of confidential information of persons. As interpreted from the constitutional norm cited above, the system of guarantees in force in Costa Rica determines that the only competent body to weigh and order interference in the sphere of persons is a **Court of Justice of the Republic**"* (Cf. folio 13376, Volume XXVII). Later it is stated: *"The national judge cannot ignore the verification of the guarantees in force in Costa Rica, not even when the investigation has been carried out outside the national territory or when, as in the present case, information originating from abroad is requested. In that sense, the Constitutional Chamber, in pronouncement No. 4248-2001, warns about the importance of respecting the mechanism of veracity and authenticity of the content of documents requested from abroad, precisely in function of our constitutional guarantee of due process, asserting that the effects of the chain of custody must be assessed in the specific case in order to establish the legality of the production and introduction of evidence into the process"* (Cf. folio 13377 back, Volume XXVII). In sum, the Trial Court recognizes, in a criterion that this Court fully endorses, that obtaining private evidentiary elements originating from financial entities domiciled abroad requires compliance with the same guarantees foreseen and required to obtain that information, if said sources were located in native, national territory. Consequently, the jurisdictional order being part of the legal conditions imposed to access bank accounts, operations, and any other private financial data, constitutes a mandatory requirement for both national and foreign sources; highlighting that it is not a mere formalism, it is a guarantee of due process that entails an assessment on the proportionality of the assets affected versus the investigation (cf. folios 13378 front and back, Volume XXVII). We see the Public Prosecutor's Office attempting, depending on the stage, various theses, always seeking the protection and legitimization of evidence that it processed in a more than incorrect, illicit manner; a situation that finally generated a state favorable to the interests of the defendants and determined – to a large extent – their acquittal in the criminal aspect (when the reproach was linked to that evidentiary element). Their arguments were rejected one by one; during the intermediate stage: (i) it alluded to jurisprudence referring to public documents, not private ones; absolutely useless to support its position; (ii) it assured a superiority of the Treaty over the Constitution; unacceptable (except in matters of human rights). Later, in the plenary phase, it insisted on the legality of the procedure, executed in accordance with the T.A.L.M. However, and even though this Chamber does not share with the judge of the intermediate stage the need for a Costa Rican criminal judge to send the request *to a Panamanian judge* who would also examine the legal appropriateness of the petition (as it is clear that the procedure is different); there is affinity and coincidence in a core issue of both resolutions: **the legal requirement in our country of an express and duly reasoned resolution by a national guarantees judge, weighing and ordering (or denying) said diligence, to the Public Prosecutor's Office.** In the event that the request of the prosecutorial entity had been resolved affirmatively (the judge granting the lifting of banking secrecy); the Public Prosecutor's Office should then (with the resolution authorizing the invasion of the privacy of the defendants) follow the procedure as provided in the T.A.L.M.; that is, present the request for judicial assistance to the Attorney General's Office of the Republic of Costa Rica (central authority at the local level); that the Attorney General's Office forward the procedure of the Public Prosecutor's Office to the National Director of Treaty Enforcement; from there it would be remitted to the Attorney General's Office of the Nation (central authority in Panama), then passing to the Anti-Corruption Prosecutor's Office, which notifies the Panamanian financial entities to collect the pertinent information. Clarifying that in Panama, as provided in its Political Constitution, the authority competent to lift banking secrecy is the Public Prosecutor's Office, unlike our country. In sum, this Court shares that, as established by the accusatorial principle and as claimed by the Public Prosecutor's Office in its appeal, the acts of investigation correspond to the prosecutor and it is the latter who, after asking the guarantees judge and obtaining from their part the duly reasoned resolution authorizing that investigative diligence, the prosecutor must ask the Attorney General's Office of the Republic to transfer the procedure to the National Director of Treaty Enforcement (in the sub examine, of Panama), and not directly the guarantees judge. But being correct in that point does not validate or make disappear the absolute defect they incurred, by managing the intervention or affectation of a *fundamental right* of an accused person, on their own and directly before the Attorney General's Office of the Republic, completely ignoring the function assigned in the Political Constitution to the guarantees judge within the national territory. As the Trial Court correctly points out when resolving this objection: *"... the reasoned order of a Court of Justice of the Republic lifting the guarantee of privacy is what imbues with legitimacy and makes reasonable the interference of the prosecutorial power in that sphere of action of persons. Far from consisting of a mere mandate, embodied in a simple document, it represents the prohibition of arbitrariness and subjection of public authorities to the Constitution, for it concerns the requirement for an objective weighing that in that specific case the requisites demanded by the legal system for said limitation are present. To act without having the described formal and substantial assessment is to act with one's back to the Fundamental Law and against the convictions and values shared by Costa Rican society"* (cf. folio 13381). As indicated in another considerando, this Chamber does not share the arguments of dissenting vote No. 499-2011 of the Third Chamber of the Supreme Court of Justice, despite recognizing the accusatorial principle, which markedly determines our criminal procedural system; there is no doubt whatsoever about the leading and essential role assigned to the guarantees judge, who is called to intervene to weigh any investigative diligence that affects fundamental rights. In the *sub judice*, despite the validity and application of the T.A.L.M., which this Court fully endorses as a convenient and highly useful tool to combat crime and avoid impunity; it is not a legal instrument capable of depriving our Political Constitution of validity, which in a clear and pristine manner enshrines in Article 24: *"The right to privacy, freedom, and secrecy of communications is guaranteed. **Private documents** and written, oral, or any other type of communications of the inhabitants of the Republic **are inviolable**. **Nevertheless, the law, whose approval and reform shall require the votes of two-thirds of the Deputies of the Legislative Assembly, shall establish in which cases the Courts of Justice may order the seizure, registration, or examination of private documents, when it is absolutely indispensable to clarify matters submitted to their cognizance.** Similarly, the law shall determine in which cases the Courts of Justice may order the intervention of any type of communication and shall indicate the crimes in whose investigation the use of this exceptional power may be authorized and for how long. Likewise, it shall indicate the responsibilities and sanctions incurred by officials who illegally apply this exception. The **judicial resolutions** covered by this norm **must be reasoned** and may be executed immediately. (...)"* (The bolding does not correspond to the original). From that perspective, there is no excess in applying or interpreting constitutional Article 24; for as has been argued, the intervention of the guarantees judge to assess the suitability, necessity, or proportionality of the measure is only required for the procedure within the national territory, where let us not forget, it is where the process against the accused is being conducted. That is, it is not a mandate that is extended or intended to be imposed on another State, in this case Panama, as we obviously lack the competence for that, besides, its regulations are different from ours and, in them, only the action of the Public Prosecutor's Office is required to obtain the documentation of interest to the prosecutorial entity in our country. In this sense, what is established in 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."* Thus, what corresponded to our country was for the Public Prosecutor's Office to request from the guarantees judge the lifting of banking secrecy, as ordered by the Constitution, and upon obtaining approval, to go to the Attorney General's Office so the request could be processed before the Panamanian State; then, what was incumbent upon Panama was to receive the petition from the Attorney General's Office, so that the Panamanian Public Prosecutor's Office would be in charge of collecting the requested information; that was the only thing legally expected, in compliance with the principle of territoriality and as a manifestation of the sovereignty of States. Of course, the opinion, in our view biased and confused, of the appellants is not shared, when, seeking another argument, they state that derived from the principle of constitutional sovereignty, it is not possible to apply *"Law No. 7425 on Registration, Seizure, and Examination of Private Documents and Intervention of Communications"* to other States. In reality, the Trial Court had absolute clarity on this point; there was never any intention to apply Costa Rican domestic law to Panamanian law. This is evident from the following quote: *"It is important to indicate that the so-called jurisdictional order is not directed to the body of the requested country, in this case to the competent authority of Panama, to lift the privacy of the holder of that fundamental right; but rather it has the effect of guaranteeing this holder, internally, the prior review of the judge invested to perform said function. Thus, such authorization extends insofar as the concurrence of the requirements demanded by the national legal system is considered, under the principle of proportionality and due process. It is not, then, a limitation on Panamanian sovereignty, given that the jurisdictional resolution is not directed to the indicated State, but is a requirement of our own domestic law which must be respected"* (Cf. folio 13380) And it adds: *"... Nevertheless, when that information is managed with respect to a State like Panama, the procedure to follow is that established in the TALM. Hence, the requesting State must channel the request for public documents through the national Central Authority, while the requested State must provide them with the signature of the official in charge of keeping them in custody and certified by the Central Authority, by means of a seal created for that purpose... Once those postulates are fulfilled, no other certification or additional authentication will be required. Documents certified in accordance with the provisions of the Treaty constitute admissible proof of the veracity of the matters set forth in them, as regulated by Article 13 paragraph 3 of the TALM..."* (Cf. folios 13380 back and 13381 front). In sum, it is not established in the judgment, nor does this Court endorse, that a judge of the Republic intends to impose national legislation or jurisprudence abroad; that argument is a distorted interpretation of what was resolved by the Trial Court, and consequently the precedents they cite (jurisprudence from Italian and English cases) would be shared by this Chamber; because it is not projected in any way to apply constitutional Article 24 to the brother State of Panama. Our criminal procedural system opts to accept the principle of freedom of evidence, provided in numeral 182 of the Code of Criminal Procedure: *"Facts and circumstances of interest for the correct solution of the case may be proven by any permitted means of evidence, except express legal prohibition."* By virtue of this, the parties have the right to prove the aspects of interest in the process, with useful and pertinent evidence but with a single and insurmountable limit, its legality, whether in the phase of obtaining and/or incorporation into the process. That is, within our democratic rule-of-law system, all evidence obtained, produced, collected, or introduced into the criminal process outside the legal and previously established canons must be excluded from consideration within the criminal process, both for a private interest of the defense (in protection of their rights and guarantees), and for a superior and public interest, since undoubtedly, the community must be interested in the correct application of the Law. As resolved by the criminal judge (in the intermediate stage) and the full court (in the plenary phase), the evidence identified with numbers 563, 564, 578, and 579, is what is called **unlawful evidence**, that is, *that evidence obtained, incorporated into the process, or valued in violation of fundamental rights, which entails harm to one of the parties of the process.* In the context of criminal procedural law, it concerns the injury to due process (judicial guarantee enshrined in Article 39 of the Political Constitution and in international instruments such as the American Convention on Human Rights, Article 8); but also the violation of other fundamental rights of every citizen such as dignity, health, the privacy of the domicile, correspondence, communications, etc. In Costa Rica, unlawful evidence has no value, as established in Article 181 CPP: *"Evidentiary elements shall only have value if they have been obtained by a lawful means and incorporated into the procedure in accordance with the provisions of this Code. (…)"*. That is, the investigation of the real or material truth does not authorize the use of illegitimate evidentiary means, as has been reiterated by jurisprudence from the Constitutional Chamber (votes No. 1739-1992, 1422-1994, 2334-2000, 9127-2001), the Third Chamber (votes No. 53-F-1992, 47-92-1992, 614-1995), as well as several pronouncements from the Courts of Criminal Cassation (votes No. 66-F-1999, 422-2000, of the Second Judicial Circuit of San José).

In the *sub examine*, as has been reiterated, the Public Prosecutor's Office required, in order to access the evidence of its interest in this claim, a jurisdictional authorization that would weigh its legality, usefulness, and relevance, because consenting to it represented an invasion of a fundamental right (privacy) and this circumstance was fully known to the prosecuting entity, within a criminal procedural system like ours, which is markedly accusatory in nature (where the accusation and investigation are the responsibility of the Public Prosecutor's Office) but where it was also decided to reinforce the role of the judge as controller of fundamental guarantees and rights, to approve or not certain evidentiary acts. The rules on the subject are numerous, highlighting Article 290 of the Criminal Procedure Code which establishes: *“The Public Prosecutor's Office shall carry out the procedures and acts of the preparatory investigation that do not require judicial authorization nor have jurisdictional content…”* And even clearer, numeral 277: *“It shall correspond to the court of the preparatory procedure to carry out jurisdictional advances of evidence, resolve exceptions and other requests typical of this stage, grant authorizations and, in general, control compliance with the principles and guarantees established in the Constitution, the International and Community Law in force in Costa Rica and in this Code… Prosecutors may not perform properly jurisdictional acts and judges, except for the exceptions expressly provided for by this Code, may not perform investigative acts.”* Based on the foregoing, the appeal filed by the Public Prosecutor's Office is declared without merit.

**XVI.-** **APPEAL FILED BY ATTORNEYS GILBERTO CALDERÓN ALVARADO AND MIGUEL HORACIO CORTÉS CHAVES, OF THE OFFICE OF THE ATTORNEY GENERAL OF THE REPUBLIC.-** **A.** Attorneys Gilberth Calderón Alvarado, Attorney of Public Ethics, and Miguel Horacio Cortés Chaves, Deputy Attorney of Public Ethics, in their capacity as representatives of the State, constituted as Civil Actors and based on the provisions of Articles 1, 3 subsections a) and h), 20 and 21 of the Organic Law of the Office of the Attorney General of the Republic; 1, 4, 6, 7, 16, 37, 38, 40, 116, 142, 368, 437, 438, 439, 458, 459 and 460 of the Criminal Procedure Code, 103, 105 and 106 of the Criminal Code, 1045 et seq. of the Civil Code, 11, 41 and 153 of the Political Constitution, 5 of the Organic Law of the Judicial Branch and 7, 113 and 155 of the Civil Procedure Code, filed a cassation appeal (visible in Volume XXXVI, folios 17300 to 17385) against the judgment issued by the Trial Court of the Second Judicial Circuit of San José, at three o'clock in the afternoon on April twenty-seventh, two thousand eleven, and they protest that the ruling omitted a decision on the merits regarding the civil actions filed by the Office of the Attorney General of the Republic 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.. They explain that the Office of the Attorney General of the Republic participated, exercising within this process, a civil action for the Social Damage caused by the investigated acts of corruption, jointly and severally suing all the accused and some companies that somehow participated in the acts; however, they claim that this claim was not resolved by the sentencing court, alleging supposed deficiencies in the civil lawsuits. Likewise, the aforementioned attorneys filed a sentence appeal (visible in Volume XXXVIII, folios 171982 to 172067) against the referred ruling. Given the coincidence of claims in both challenges, the claims are presented, with some verbatim quotes from the second one, corresponding to the sentence appeal. **B.- First ground.-** **“Contradictory reasoning which produces incoherence in the sentence”** (Cf. folio 171985). The petitioners point out that even though the ruling acknowledges a criminal plan to corrupt public officials, it omits resolution on the compensatory civil action filed and regarding the social damage caused, in violation of Article 142 CPP. They cite, in pertinent part, vote No. 334-2004, at 9:58 a.m. on April 2: «*“The claim is admissible: Judges are obligated to ground their resolutions in a clear and precise manner, expressing the reasons of fact and law on which they base their* ruling, *as well as indicating the value given to the means of proof - Article 142 of the Criminal Procedure Code -, which implies that the reasoning of the sentence is subject to controls, to the evidence, and to the imposed procedural limits. When evaluating the elements of conviction, the judge must rely on two essential criteria: its legitimacy and the reasonableness of the analysis, in order to avoid a capricious and arbitrary examination, so that his decision responds to objective criteria, expressing with clarity, precision, and certainty the reasons that allow him to arrive at a legitimate and valid judgment, and that, in case of discrepancy, can be examined by a higher control instance, which determines if the ruling issued has respected or not the fundamental principles and rights of the parties involved in the adversarial proceeding.”* (Our underlining).» (Cf. folio 171986). They assert that in the facts of the civil lawsuits filed (which they reproduce in the brief), a structured criminal plan was established 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 various public officials with the purpose of financially benefiting, of favoring the personal economic interests and those of the company Alcatel CIY, in the contracting of the 400 thousand cellular lines with the Instituto Costarricense de Electricidad. Furthermore, they assure that this is indicated in the proven facts of the sentence, from which the following paragraphs are reproduced: «*“48) Without specifying an exact date, but approximately starting in May 2000, the accused [Nombre015] and [Nombre035] plan or conceive the idea of seeking, offering, and delivering gifts consisting of money to public officials who had interference or decision-making power regarding the contracts of I.C.E and within the political sphere. The foregoing with the purpose of favoring the company Alcatel by opening public bidding processes in the field of GSM cellular telephony and in the awarding of future bids in this matter, as well as to obtain for their favor large sums of money. As part of their strategy, they agreed that the effective delivery of the money they promised to the officials would be made indirectly, through a third person, the accused [Nombre009]...”. “50) Among the indictees, there is a kinship by affinity relationship with [Nombre009], since the wife of [Nombre015] is the sister of [Nombre009]. The bonds of affinity and the relationship of trust, as well as the described link of [Nombre009] with the company Servicios Notariales QC S.A. and the management of his account with Banco Cuscatlán, motivated [Nombre009] to join in the planning and structuring of the mentioned criminal plan; knowing that everyone would personally benefit from part of the money coming from Alcatel CIT.” “51) With the aforementioned purpose, the accused [Nombre015], together with the sentenced [Nombre035], by common agreement with the accused [Nombre009], decided to use the bank account of Servicios Notariales QC S.A. (...) as the recipient of the money delivered by Alcatel CIT, to later distribute it among the corrupt officials and politicians to be indicated.” “52) As part of the previously outlined plan, the sentenced [Nombre035] and the accused [Nombre015] and [Nombre009], with the purpose of concealing the payment of illicit gifts and justifying the million-dollar transfers of money in favor of the public officials, took advantage of the commercial relationship that had been maintained between Servicios Notariales QC S.A. with Alcatel CIT, that in the signing of consulting agreements was represented by the company Alcatel Standard S.A.” “56) According to the plan devised with the accused [Nombre015] and the sentenced [Nombre035] to corrupt public officials, among the tasks to be fulfilled, the indicted [Nombre009] was responsible for receiving the money from the company Alcatel CIT and making the illicit payments to the corrupt officials.” “59) The company Alcatel CIT paid each of the amounts corresponding to the referred contracts and the sentenced [Nombre035] together with the accused [Nombre015] and [Nombre009], obtained the money they used for the payment of gifts to the public officials.” “60) The accused [Nombre009], according to the part of the plan he was responsible for carrying out, proceeded to make the deliveries of money to each of the officials indicated to him by the indictee [Nombre015] and [Nombre035], as will be explained.”»* They add that in the reasoning section of the sentence, this criminal plan is considered established, which evidently entails civil liability, citing various excerpts in support of this assertion. They conclude that the court's reasoning is "absolutely contradictory," on one hand determining that the civil defendants did participate in a common agreement in the criminal plan as corruptors and on the other, omitting cognizance of the civil action filed against them; which constitutes, in their view, a violation of the principle of non-contradiction. They request that the sentence be declared null. **C.- Second ground.-** **“Contradictory reasoning”** (Cf. folio 172006). They allege that the criminal acts of corruption demonstrated at trial caused serious social damage, as established by Article 38 of the Criminal Procedure Code and as stated in the judgment, when on folio 1625 it was established: «*“Contrarily, given his criminal participation from the first Branch of Government, as well as the serious social damage caused and the significant amount received as a gift, under no circumstance is he deemed deserving of its concession.”* (The highlighting is ours)» (Cf. folio 172006). Damage to which the court refers in its arguments on multiple occasions, so much so that it justifies the crime and the imposed penalties; as illustrated in the sentence, among others, when analyzing the reproach against [Nombre012] or [Nombre015]. From the latter, the following quote from the ruling is reproduced: «*“So that, in the production of the social damage and injury to the legal interest, the greatest contribution was that of [Nombre015] since he acts following a scheme previously established for that purpose, he knew how to set it in motion, define the “adequate” amount to make the promise and provoke its acceptance, among other actions revealing that at all times he acted calculatingly, unlike [Nombre026], who was unaware of the noted illicit machination for the generation of the violation of the legal interest and the social impact indicated due to not knowing, as he himself referred, that there were other people involved or the magnitude of the corrupting proposals of [Nombre015]. Hence, the greater reproach regarding the generation of the damage also corresponds to [Nombre015].”* (The underlining is not from the original)» (Cf. folio 172007). The petitioners consider that if the sentence has deemed the existence of social damage as proven and that all the sentenced parties acted under a single purpose (to ensure that the company Alcatel CIT was awarded the 400 thousand cellular lines), it was not possible—without incurring in contradictory reasoning—to fail to resolve the civil lawsuit in this venue. They request that the ground be admitted and that the civil lawsuit presented be resolved. **D.- Third ground.-** **“Violation of substantive law due to non-application of Articles 11, 41 and 153 of the Political Constitution, 5 of the Organic Law of the Judicial Branch, 1, 4, 6, 7 and 40 of the Criminal Procedure Code, 103 subsection 2) of the Criminal Code, 1045 of the Civil Code, 7 and 155 of the Civil Procedure Code”** (Cf. folio 172009). They indicate that when the court established the impossibility of ruling on the merits of the compensatory civil action filed by the Instituto Costarricense de Electricidad, as well as the one initiated by the Office of the Attorney General of the Republic, Costa Rican legislation is violated: Article 3 of the Law of Constitutional Jurisdiction, Articles 11, 41 and 153 of the Political Constitution, because there is an obligation on judges: to resolve each and every one of the questions submitted to their knowledge, without being able to leave the parties who have intervened in a process without a resolution that responds to their petitions. Article 41 establishes that access to justice, effective, prompt, and complete judicial protection, absent in the appealed sentence regarding the civil actions filed by the Representation of the State. Later they invoke the principle of legality to underline the duty of courts to resolve the matters submitted to their knowledge; also the right to reparation of all damage caused, as well as the right to prompt, complete justice, without denial and in strict adherence to the laws. Regarding the principle of legality, they cite vote No. 440:98 at 3:27 p.m. on January 27; they also refer: *“The Principle of Legality in the Rule of Law postulates the special binding of the authorities to the legal system, based on the basic definition in which every authority must act to the extent that it is empowered to do so by the same legal system and by express text, hence the exercise of the jurisdictional function must be guaranteed under formal and material efficacy to the point that violations of mere legality become—by virtue of the principle—violations of due process (set of guarantees that translate into rights and obligations of the judicial process) and the corresponding right to constitutional legality and legitimacy as a means to apply substantive law.”* (Cf. folio 172012). They add to the claim the transcription of Article 5 of the Organic Law of the Judicial Branch, numerals 1, 4, 6, 7 and 40 of the Criminal Procedure Code, 103 of the Criminal Code, 1045 of the Civil Code and Articles 7 and 155 of the Civil Procedure Code. They invoke vote No. 619-2000, at 11:20 a.m. on June 9, of the Third Chamber: *“The Political Constitution in its Article 41 establishes that every person must find reparation for the injuries or damages suffered, in accordance with the law. In addition, it expresses that everyone must be given prompt and complete justice, in strict accordance with the Law. A recognition of the right to reparation is observed in the constitutional order, always under the aegis of the corresponding legal provisions. Note that in matters of civil reparation, one of the legally permitted modalities to carry it out is pecuniary compensation. Likewise, it should be said that Costa Rican Fundamental Law is clear in establishing that the jurisdictional function consists of hearing certain types of cases, resolving definitively on them and executing what is judged (Article 153). Thus, if there is a judge competent to hear certain matters in particular, they must abide by the relevant legislation. This principle is reinforced by what is stated in Article 5 of the Organic Law of the Judicial Branch, in the sense that it corresponds to the judge to exercise their authority and decide matters following the written and unwritten rules of the legal system, according to their position in the hierarchical scale.”* The protest is reiterated for not resolving the merits of the filed actions, as well as the referral to the civil venue to settle their claims, about which they state: «*The doctrine has pronounced that “It is not consistent with the principle of prompt and complete justice to send the victims to a civil process, after they have chosen a venue, authorized by law, to settle their conflicts. That is, one would have to start a new process, generating greater expenses and an evident delay in the decision. If criminal judges must handle civil matters to resolve civil actions, there is no inconvenience in continuing with the process to reach the respective ruling. In any case, difficult problems obtain a solution through the conscientious study of the judges or as Núñez points out (1982, p.26) ‘...once the judge of the crime system is established, through experience, they will specialize 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. Pg. 40). Therefore, when one of the civil parties within the criminal venue files a compensatory civil action, they do so because they are choosing that venue with the purpose that within it, their petition be resolved.»* (Sic. cf. folio 172019). The challengers add: «*It is through Access to Justice materialized through the administration of justice, that persons exercise the right to obtain a response to the violation of some of their guarantees and thus an effective and timely solution to a matter protected by law. In this case, the same thing happened, this Office of the Attorney General, within the criminal process, presented several civil actions against the accused and third parties civilly responsible and from the year 2004 to the date, acts have been carried out tending to promote those actions, such as the filing of the civil actions themselves, clarifications to them, attachment of liens, answering of appeals and finally the attendance of almost a year of trial, where the thesis of the existence and collection of the social damage generated by the investigated acts of corruption was upheld. Hence it is not understood how at the end of the trial, the Court determined by sentence that it is impossible to rule on its merits, without having reason for it, a denial that causes irreparable harm to this Representation, since it becomes a denial of access to justice and that the situations presented be resolved, thus violating all the principles cited above, this apart from 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 Complete Justice, is a clear omission of the Judges of the Trial Court of their obligations, since among them is the duty to resolve all the extremes that have been submitted to their knowledge.»* (Cf. folio 172020). They partially reproduce vote No. 12224-2001, at 2:55 p.m. on November 28, of the Constitutional Chamber: *"... the activity that the parties and the judge develop in the process tends to a common goal, which is to establish the existence of a will of the law over a determined good with respect to the plaintiff and the defendant in the case being processed. The act by which the judge formulates this declaration is the sentence. In it, the jurisdictional function is summarized and through it, the process is justified, because in it and by means of the sentence, the maintenance of the legal order is made effective. The sentence must refer to a specific case, (sic) the judge not being able to issue resolutions in the abstract. Thus, this function—the jurisdictional one—obliges the judge to 'judge,' 'opine,' and 'value' the facts under litigation and adapt them to the current normative framework, for which it contains a positive and precise decision on them; that is, it is an expression of what was considered by the judicial authority. The constitutional and legal mandate to 'definitively resolve the matters submitted to the knowledge of the courts of justice' (resolution number 6494-93)."* (Sic. cf. folio 172021). They question that the sentencing court had the moral damage demonstrated and despite this, declared impossibility to resolve the merits of the civil actions filed. Regarding this they state: *“The only valid and logical conclusion is that the impossibility referred to was to determine the quantum of damages corresponding to each individual, and this clearly does not make it impossible to resolve the merits of the civil actions and, if necessary, to remit this determination of the amount to the sentence execution phase, which is indeed authorized to them by law.”* (Cf. folio 172022). They refer that both jurisprudence of the Third Chamber and of the so-called Courts of Cassation have agreed on the violation of the legislation when a ruling on civil aspects is omitted, a situation aggravated when absolutely nothing is resolved. In support of this, they cite the following resolutions: (a) from the Third Chamber, votes No. 165-F-91, at 9:00 a.m. on April 26, No. 105-2010, at 11:00 a.m. on February 17; (b) from the Criminal Cassation Court, votes No. 186-2001 of February 23, No. 601-F-98, at 9:25 a.m. on August 31; (c) from the Constitutional Chamber, vote 8591-2002, at 2:59 p.m. on September 4. They consider that a violation of all the invoked legislation occurred and request that what was resolved be annulled and that what is provided in the legislation be applied. **V.- Fourth ground.-** **“Erroneous interpretation of numerals 1, 3, 20 and 21 of the Organic Law of the Office of the Attorney General of the Republic, 38 of the Criminal Procedure Code, 1, 190, 191, 196, 197, 199, 201, 203, 205 and 206 of the General Law of Public Administration and 105 of the Criminal Code”** (Cf. folio 172029). They criticize that the instance court considered that the action of the Office of the Attorney General of the Republic, in this process, was not in representation of the State, which is why there was an erroneous formulation of the civil claims, which should have had the State as a civil defendant, according to the rules of responsibility established in the General Law of Public Administration. That is, they consider that the error of the judges was considering that there were more civil defendants besides those established in the civil actions filed. They state: «*This, because the judges perform an analysis of Article 106 of the Criminal Code concordant with Articles 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 be a civil defendant alongside the Instituto Costarricense de Electricidad. Those numerals that the resolution transcribes are erroneously interpreted, first, because it is the Office of the Attorney General of the Republic in representation of the State who exercises the collection of the social damage caused by the illicit conduct in their personal capacity of the accused in this case, so it is not logical to cite the articles in question in the resolution, much less to perform an interpretation for this case. Second, because who must manage the ‘alleged responsibility’ of the State are individuals, not the State against the State itself, since this is a basic instrument of administration (active subject)-administered person (passive subject) relations ‘it translates into the faculty of the administered person to demand from the Public Administration that has inflicted an unlawful injury or breached a pre-existing administrative obligation imposed by the legal system the compensation of their patrimonial or extra-patrimonial sphere. ... This right may be exercised or not by the harmed or injured person, as it is optional for its holder and the way to exercise it is by deducing the claims or suing the obligated public entity.’ For the emergence of the obligation to repair or compensate in a public entity, several conditions must concur which are the following: 1) an action or omission attributable to the Public Administration, 2) an unlawful injury that the administered person or victim has no duty to bear, and 3) a direct and immediate cause-and-effect relationship between the administrative action or omission and the unlawful injury.” (Jinesta Lobo, Ernesto. Tratado de Derecho Administrativo. Tomo II. Responsabilidad Administrativa. San José. 2005. Pgs. 97 and 98). Therefore, under the court's line of reasoning, the following questions should be asked: was the State a civil defendant? Was the State counter-sued civilly? The answers to the previous questions are negative. The State was not sued civilly, the State was not counter-sued. So, why is this analysis done? To determine a responsibility of the State that was not being requested or discussed, a responsibility of the State that was not alleged through the legal means established by procedural law, so there is no explanation from the Court, except to indicate that some of the accused were public officials.»* (Cf. folios 172030 to 172031). The challengers point out that in this process, state responsibility was not ventilated because no individual or administered person filed a civil lawsuit against the State *«...* regarding the "alleged liability"<span style='mso-spacerun:yes'> </span>that the Court only finds strange when establishing it as a party within seven of the eight groups of joint and several liability that it subjectively determined, because it does not indicate the parameters used to group the persons and that within these was the State, or establish the causal link to impute the joint and several liability of the State with the public officials, because the mere fact of holding public office is not enough for the State to be liable but rather the conditions for its concurrence must be demonstrated and in this case, the Court does not set out the evidentiary elements that lead it to conclude that the actions of the accused are attributable to the Public Administration, nor does it establish the direct cause-and-effect relationship between the actions of the convicted persons attributable to the State and the resulting unlawful injury, but rather simply limits itself to stating in its resolution that;<span style='mso-spacerun:yes'> </span>"The particularity of this process, is that not all the accused had participation in all the criminal acts charged, rather it is based on the intervention of groups of accused in specific acts, a circumstance that obliges one to have to determine and specify each group of accused and third-party civil defendants that could be jointly and severally liable among themselves, in relation also to specific acts and specific damages that those specific acts may have caused, which leads to the conclusion that there is no damage for which all the accused and eventually third parties must be jointly and severally liable, which is the assumption on which the civil claims were liquidated by the Instituto Costarricense de Electricidad and the Procuraduría General de la República. What could exist are damages caused by the criminal conduct of specific groups of accused, for which the accused of the group and eventually third parties would be jointly and severally liable, independently of the eventual damages caused by other groups of accused. From the study of the accusation, and in application of the rules of joint and several liability already analyzed, the existence of the following groups of accused and civil defendants is determined who could result jointly and severally liable among themselves, for the damages that they eventually could have caused, with respect to specific and determined acts, acts that have no relationship among themselves, for the purposes of determining civil liability, even when some of the groups have 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. <span class=GramE>C.'.,</span> 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 of them in relation to the crimes of penalty of the corruptor attributed to [Nombre015] and [Nombre009] and aggravated corruption 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<span class=GramE>. .</span>9., Finca Salitral S. A., Quántica S. A. and Punto de Negocios L. Q. C. S. A., all of this in relation to the crimes of penalty of 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. <span class=GramE>and</span> Punto de Negocios L. Q. C. S A., all of them in relation to the crime of illicit enrichment attributed (as reclassified) to [Nombre021], and the crimes of illicit enrichment and real favoritism 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<span class=GramE>..</span> Gambusino.s S. A., Finca Salitral S. A., Quántica S. A. and Punto de Negocios L. </i>Q. ('. <i>S. A., all of them in relation to the crimes of penalty of the corruptor attributed to [Nombre015] and [Nombre009] and aggravated corruption attributed to [Nombre026] (criminal action suspended by opportunity criterion) and instigation to aggravated corruption attributed to [Nombre012]. </i><b>5.- </b><i>[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 of them in relation to 3 crimes of illicit enrichment attributed to [Nombre007]. 6.- [Nombre064], [Nombre018], [Nombre027], Alcatel Cit, the State and the Instituto Costarricense de Electricidad and Intelmar S. A., in relation to the acts of penalty of 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 relation to the crimes of penalty of the corruptor attributed to the first and aggravated corruption to the second.8.- [Nombre012] and the State in relation to four crimes of illicit enrichment attributed to [Nombre012]. </i>(The highlighting is not from the original. Folios <st1:metricconverter ProductID="1884 a" w:st="on">1884 to</st1:metricconverter> 1886).<b> Furthermore, in folio 1887 it determines that </b><i>"When the civil plaintiffs (Procuraduría General de la República and Instituto Costarricense de Electricidad) proceeded to liquidate claims in the manner they did, they leave the Court unable to rule on the merits <span class=GramE>of the same</span>. To rule validly, the Court would have to break down the different groups of joint and several debtors, determine the specific acts that are attributable to them and determine the eventual damage that those acts could have caused to the Instituto Costarricense de Electricidad and/or to the collective and diffuse interests that the Procuraduría General de la República represents. Only from the foregoing can the civil claims be assessed, which would have to be modified in accordance with the mentioned factual <span class=GramE>assumptions ,</span>, which are the cause of the same. The foregoing is not a task that the Court can carry out, because it involves extremes whose determination is the exclusive purview of the parties and not of the Court, which if it did so would lose its objectivity and impartiality by supplementing the deficiencies of the parties and would violate the principle of congruence, by ruling outside of what was requested"."</i> (Cf. <span class=GramE>folios</span> <st1:metricconverter ProductID="172032 a" w:st="on">172032 to</st1:metricconverter> 172034). For the plaintiffs, this analysis would be acceptable if the State were being required some type of civil liability, but in this case it is not.<span style='mso-spacerun:yes'> </span>With this, they allege a violation of the principle of congruence and of the autonomy of the will of the parties; because new civil defendants were included, to whom liability is assigned, ruling beyond what was requested, surprising everyone, since it was in the judgment (after a process of almost seven years), when the new civil defendants were mentioned. They invoke Vote Nº 618-F-SI-2010, of 9:15 a.m. on May 20, on the principle of congruence:<i> "(...) a principle according to which the judge, when resolving in judgment, must adhere to what was requested by the parties. If it departs from the material claims of the lawsuit, it could incur in different defects. Ultra petita, if it grants more than what was requested. Extra petita, when it adds extremes never requested nor debated by the litigants. Citra petita, in case of omitting the ruling on points discussed between the parties. Likewise, there could be incongruence due to contradictory provisions in the decision". </i>Clear precedent, on how the petitions of the parties are what define the subject matter of the judicial debate. Later it cites the following fragment of the judgment, visible at folio 1892: <i>"The Procuraduría General de la República could not ignore, when formulating the civil action for damages and its claims, that the State and the Instituto Costarricense de Electricidad were also designated by law as jointly and severally liable to answer for the damages to collective or diffuse interests, whose compensation is sought. The foregoing because in the eventual production of the damages, public officials of the Executive Branch, the Legislative Branch and the Instituto Costarricense de Electricidad intervened.': </i>Further down <i>"just like the Courts of the preparatory and intermediate procedure, the civil defendant parties could also have pleaded the defects noted against the civil actions for damages in the prior stages and not wait for the conclusions of the debate, in which case they also had their share of responsibility in that the defects were not overcome and the Court could rule on the merits of the allegations, claims and exceptions formulated". </i>From which the appellants criticize, a criterion is issued on a topic never discussed -the alleged state liability and its corresponding joint and several liability and compensation-, and by which, it is argued that it was impossible to resolve the merits of the matter, but without that being an alleged claim. They consider that even though some of the defenders when issuing their conclusions made mention of the topic of state liability regarding the actions of public officials, it does not constitute a formal pleading capable of being accepted by the court. They insist that the Procuraduría General filed civil actions to claim the damage generated (which affected the entire country), by the plan devised by the corruptors and the corrupt, to guarantee the bidding for the 400 thousand lines in exchange for gifts, which it had as proven in folios 1216 and 1217 of the judgment. Therefore, the principle of congruence was violated by omitting a ruling on the civil lawsuits and their claims, specifically, the sentence for the social damage caused by the illicit acts aired in this case, on the part of all the accused. The principle of autonomy of the will of the parties was violated, because the judges, far from resolving the claims raised by the involved parties (as was their duty), <span class=GramE>attributes</span> liability to the civil plaintiffs (without holding the status of civil defendant), surprising all the duly constituted parties. They add<span class=GramE>: <i><span style='mso-spacerun:yes'> </span>"</i></span><i>The Court argues, in general terms and referring to the civil plaintiffs -ICE and Procuraduría General- before the acts that generate civil liability and in which public officials participate, that by Law they have liability, and it could be true, if it were a liability claimed by their administered parties and if they were civil defendants, but this is not the case, because it is the State as such, that is taking action to combat the corruption of its officials. If the Court's criterion were accepted, then the State or any autonomous institution, that wanted to denounce or pursue the corruption of its officials would be civilly liable<span class=GramE>?</span> Could the State or any autonomous institution not try to clean its house of corruption, without seeing itself civilly liable for the same acts it denounces<span class=GramE>?</span> The argument is illogical and clearly improper. As indicated supra, the Court errs in its decision, since it placed itself in a process where the liability is requested by an administered party against the State, but this is not the case, since in this process it is the State itself who requests the liability of its corrupt officials, a liability towards society"</i> (Cf. folio 172039). They emphasize that the plaintiffs had chosen the criminal venue to formulate their civil claims and the judges were competent to resolve them, therefore, they criticize and qualify as erroneous their decision to refer them to the civil venue, based on an erroneous interpretation of the Ley General de la Administración Pública, of the Ley Orgánica de la Procuraduría General de la República (numerals 1 and 3) and Article 38 of the Código Procesal Penal. <i>"The Court considers from its erroneous perspective, that since the State has liability, the Procuraduría in representation of collective and diffuse interests, as established in article 38 of the Código Procesal Penal, should have sued that liability against the State and by not doing so incurred a violation of articles 20 and 21 of its Ley Orgánica, which is also mistaken. While it is true the Procuraduría participated in the present process exercising a civil action for damages due to affectation of collective and diffuse interests, pursuant to what is established in numeral 38 of the Código Procesal Penal, it is also true, that as a result of this activity the other functions or representation that the Procuraduría holds, according to its Ley Orgánica, do not disappear..."</i> (Cf. folio 172041). Later they add:<span style='mso-spacerun:yes'> </span><i>"In the indicated sense, it is clear that the attribution of being able to exercise the civil action "when it concerns punishable acts that affect collective and diffuse interests'; set forth in Article 38 of the Código Procesal Penal, is one more power provided by the legislator so that the Procuraduría performs its duties and the fact of executing this power, in no way could imply that it ceases to be what it is or to fulfill its other attributions, that is, to consider as the Court does, that this Representation by exercising the power to file a civil action for punishable acts that affect diffuse and collective interests, which for purposes of the process is a <u>"standing to sue'</u>;<u> </u>would cease to be the legal representative of the State, which is a <u>'legal representation granted by law'</u>;<u> </u>has no legal basis and they are two completely different things. From this point of view, to interpret that in the present process there has been a non-observance of our obligations contained in Articles 20 and 21 of the Procuraduría General de la República, for not having sued the State upon being considered civilly liable -in the Court's logic- understand not suing our "legally represented", is completely illogical and irrational, from the legal point of view and would be going against our organic law and the mandate contained within it. Hence, the Court's reasoning becomes erroneous and therefore causes the appealed judgment to fall into the defect of erroneous interpretation due to the poor appreciation of the norms that support it, that is, Articles 1, 20 and 21 of that normative body."</i> (Cf. folio 172048 and 172049).<span style='mso-spacerun:yes'> </span>Regarding what is provided in Article 38 of the Código Procesal Penal, they consider it clear that it confers upon the Procuraduría another attribution, but not a representation (which may or may not be exercised). They affirm an error by the Court in equating procedural standing (to sue) with a legal representation (of collective or diffuse interests), then, they cite Article 1 of the Ley General de la Administración Pública with the purpose of distinguishing both institutions and state: <i>"Article 38 grants the Procuraduría the necessary standing to sue civilly in cases of punishable acts where collective or diffuse interests are affected to collect social damage, but it is no more than an attribution that legitimizes its participation in the process, if one looks for who holds the legal representation of society or who represents the collective or diffuse interests of a society, we would have to refer to the previous concepts to conclude that it is the State as the major and primary figure of the Public Administration that represents society and its interests. Therefore, to maintain as the Court does that the Procuraduría represents the diffuse and collective interests pursuant to Article 38 of the Código Procesal Penal, is not only legally improper, since according to this interpretation one article (Article 38 of the C.P.P.) would be disapplying a Law (Ley Orgánica de la Procuraduría General) and only for specific cases, but it would also fall again into the impossibility, as explained, of the Procuraduría civilly suing its represented party, who furthermore, is the representative of the interests sought to be protected"</i> (Cf. folio 172050 and 172051).<span style='mso-spacerun:yes'> </span>Given the aforementioned error, the petitioners state, they request the nullity of the judgment and the application correctly of the invoked regulations. <b>VI.- Fifth ground.- <i>"Erroneous interpretation of Articles 106 of the Código Penal, 1046 of the Código Civil and 113 of the Código Procesal Penal"</i></b> (Cf. folio 172051).<span style='mso-spacerun:yes'> </span>They question the analysis carried out in the judgment on the joint and several liability of the civil defendants, whom they divide into groups and which from the perspective of the Procuraduría General de la República is erroneous, since it considers it feasible to demand that joint and several liability from all the civil defendants. In support of their criterion, they cite Vote 645-2010, of 3:00 p.m. on June 4, 2010, which in the pertinent part establishes: «The defining characteristic of the joint and several obligation, consists in that <i>"... each debtor is directly committed to the payment of the entire debt... <span class=GramE>" (</span>Brenes Córdoba, Alberto: <u>Tratado de las Obligaciones</u>,<u> </u>7th edition, Juricentro, San José, 2006, pp. 56-57). Later the same author specifies: "...What properly constitutes solidarity... (is) the circumstance of being directly responsible 'for the whole and as debtor of the whole'; which is the sense of the Latin phrase in totum et totaliter that is usually used to characterize the joint and several commitment<span class=GramE>..</span> . <span class=GramE>" (</span>Op. C i t, p. 58). Precisely the right of election of the creditor, or the power "...to demand the performance from one of the debtors, from all at once, or successively... "(Op. Cit, p. 59), is the guarantee offered to them with joint and several liability (Article 640 of the Código Civil), which is thwarted by the division into quotas that the a quo carried out, starting from an erroneous interpretation of Article 135 of the rules in force on civil liability, of the 1941 Código Penal, a norm that the appellants also invoke erroneously. The aforementioned numeral 135 provides: "...The obligation of the participants in a punishable act is joint and several regarding the civil reparation; but among themselves each one will answer for the quota assigned by the judge, according to their participation... ': The phrase "-each one will answer for the quota assigned by the judge, according to their participation... "<span class=GramE>of</span> course, does not refer to the division of liability or its conversion into a joint obligation. Rather, it refers to the action of recourse that, among themselves, the joint and several debtors possess (numeral 651 of the Código Civil). That is to say, that after partial or total payment has been made by one of the debtors, they may claim from the others the return of the payment that corresponds to them to compensate, together with the costs and interest accruing from the day of payment, by reason of their share of liability. However, it is about a right of the joint and several co-debtors, which they may exercise later, and not a power opposable to the creditor, nor a stipulation in favor of division into quotas by the Court because as stated, that would nullify the guarantee of election, intrinsic to the joint and several obligation. Finally, it must be noted that the fact that the civil plaintiffs did not challenge the distribution of the total payment of the moral damage in quotas or fractions, occurred in the appealed judgment, does not imply tacit waiver of joint and several liability and therefore, of the right to choose against whom they sue to execute the obligation existing in their favor. This is so, because the reasons to consider joint and several liability waived, are stipulated exhaustively, in Article 647 of the Código Civil, besides the fact that "... The waiver of joint and several liability is not presumed, because the intention to donate or to unmotivatedly abandon a right is never to be presumed... "' (Brenes Córdoba, Op. Cit, p. 62).". Under this correct understanding, the Court should have sentenced all the accused to the total payment of the social damage suffered, not proportionality regarding each group, since all contributed through a specific function to the success of the realization of the general plan of action»</i> (Cf. folios 172054 and 172055).<span style='mso-spacerun:yes'> </span>They reiterate that the joint and several liability of all the participants was requested (in accordance with the provisions of Articles 106 of the Código Penal and 1046 of the Código Civil), therefore the court had to resolve the merits, since even though it divided the defendants into groups, it always alluded to the joint and several liability of those persons (citing, the petitioners, Vote of the Sala Tercera Nº 238-2009, of 9:48 a.m. on March 13, on the subject).<span style='mso-spacerun:yes'> </span>They consider Articles 106 of the Código Penal, 1046 of the Código Civil and 113 of the Código Procesal Penal violated, highlighting that the last of the precepts provides for the possibility that the civil plaintiff directs their lawsuit against the defendants they deem pertinent (by the principle of autonomy of the parties), citing the text of Dr. Juan Marcos Rivero Sánchez (Responsabilidad Civil, Volume II, second edition, page 347), also Dr. Javier Llobet Rodríguez, in his work Proceso Penal Comentado, fourth edition, page 269, when commenting on the related Article 113 of the Code and indicates: <i>"Since the exercise of the civil action is of private interest, the one who believes themselves aggrieved can direct the action against one or several of the accused, against one or several of the possible civil defendants, or against all of them. ... Regarding civil liability, it is important to take into account that the Código Penal contemplates a joint and several liability of all the participants, which implies that in principle it is not necessary to sue all the accused, but rather the civil plaintiff can choose whom to sue, from this perspective, a necessary passive joinder of parties does not exist". </i>The petitioners mention on the particular, votes of this Court (638-2006, of 3:45 p.m. on June 28). Regarding the argument of the trial Court, that the accused participated in different stages or with different conducts, they consider that the problem does not concern the determination of the damage, but its quantification in relation to the participation of each defendant, an aspect that did not prevent the judges from resolving the merits of the civil action, so that they would be jointly and severally sentenced and then referred to the corresponding venue, to determine the quantum of each one. Regarding the opposition of the criterion of solidarity groups among the defendants (maintained in the judgment) and the defense of the joint and several liability of all, they state: <i>"The damage claimed is the social damage caused by acts of corruption and this damage is focused on compensating society that is affected by acts of corruption by its public officials, from this point of view, society is affected as a whole and not its individuals in particular, therefore the damage suffered is general and is one. Furthermore, from the actions deployed by the accused it is observed that all are directed to a common purpose, in this case that Alcatel managed to break the monopoly of the cellular offer, that the public bidding was carried out and that Alcatel was the awardee, aspects that occurred and were taken as proven in the judgment now challenged. That is, the Court does not analyze the common purpose of the conducts deployed by the accused and how all of these, as acts of corruption, were destined to obtain a common purpose which was to achieve the final award of a contract. The construction of groups that the Court carries out is very subjective and starts from the crimes attributed to the accused and according to the concept of public officials used to establish the State's liability, which is mistaken, just as was seen above. Furthermore, they are acts that are related to each other, since the result pursued and obtained was not achieved by one single person, but by all of them together. To prove the subjectivity of the Court in determining the groups, let us just think that, if on the other hand, the groups were determined<span style='mso-spacerun:yes'> </span>by the actions undertaken by the representatives of Alcatel, such groups would not exist, since these participate with all the other accused in the present acts"</i> (Cf. folios 172063 and 172064). They request to annul the judgment and apply the invoked regulations correctly. </span><span lang=ES-CR style='color:black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><b><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span>XVII.- <u>THE APPEAL FORMULATED BY THE PROCURADURÍA GENERAL DE LA REPÚBLICA IS RESOLVED.-</u></span></b><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span>Regarding the civil aspects formulated by licentiates 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, constituted as Civil Plaintiffs, this Chamber has already upheld the objections presented by licentiate Cristian Arguedas Arguedas, who questioned the decision of the trial Court to omit a ruling on the civil actions filed by the Procuraduría General de la República and the Instituto Costarricense de Electricidad; applying the extensive effect and ordering the remand for a new substantiation in accordance with Law on said aspects. For procedural economy, an express resolution on the objections formulated is omitted, as they deal with substantive aspects that must be examined precisely in the remand already ordered regarding the aspects of the civil action for damages of interest. </span><span lang=ES-CR style='color: black;mso-ansi-language:ES-CR'><o:p></o:p></span></p> <p class=MsoNormal style='text-align:justify;line-height:150%;mso-pagination: none;mso-layout-grid-align:none'><span lang=ES-CR style='font-family:Arial; color:black;mso-ansi-language:ES-CR'><span style='mso-spacerun:yes'> </span><b>XVII.-<u> APPEAL FORMULATED BY LICENTIATE MARIO NAVARRO ARIAS.-</u></b> Licentiate 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, based on Articles 39, 41 of the Constitución Política, 1, 142, 184, 363, 367, 369 subsections b), c), d), 437, 438, 439, 447, 458, 459, 460 of the Código Procesal Penal, adheres to the cassation appeals 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, 3:00 p.m. on April 27, 2011, by the civil defendants [Nombre012] and Alcatel Lucent-France, the Procuraduría General de la República and the Instituto Costarricense de Electricidad (the latter in their capacity as civil plaintiffs).

**First ground.-** It alleges a lack of reasoning in the rejection of the award of costs, in violation of Articles 39 and 41 of the Political Constitution, and 363 and 369 of the Code of Criminal Procedure, because the tribunal confines itself to the fact of having dismissed the civil claims and, to attributing—in part—to the civil defendants responsibility for the consequences of the claims. They qualify that reasoning as generic and reproach the absence of an examination of the procedure followed for the civil action (acción civil) within the process: the filing of the claim, their participation in the preliminary hearing (where they protested the defects of the civil actions (acciones civiles)), as well as in the adversarial stage: "<i>Ergo, this representation NEVER <b>CONTRIBUTED TO NOR ADMITTED THE DEFECTS OF THE CIVIL ACTIONS, AND NOR TO AFFIRM</b> OF THE ICE ACTION, THAT IT MODIFIED ITS CLAIMS IN THE PRELIMINARY HEARING, WHEN IT COULD NOT DO SO AND IN THE CONCLUSIONS STAGE when it was also not permitted to do so. And we, in our capacity as civil defendants, challenged those circumstances, CONSIDERING THE CIVIL ACTIONS RECKLESS. However, as we noted in this section, the release from the payment of costs is for reasons that the tribunal does not adequately substantiate, leaving the judgment devoid of reasoning and causing the ruling in this section to have an unavoidable defect, which must be so declared and a partial remand trial ordered</i>" (Sic. Cf. folio 171415). **Second ground.-** It considers that there is an erroneous application of Articles 267 and 270 CPP and a lack of application of Article 221 CPC in relation to numeral 266 CPP. It explains that from Report No. 202 of the Economic Section of the Judicial Investigation Organization, it is established that the civil defendants Punto de Negocios S.A., Finca Salitral de Esparza S.A., Gambusinos S.A., La Selva de la Marina S.A., received money from Servicios Notariales QC S.A., originating from Alcatel, that is, the tribunal held it as proven that it involves private money, not from the public treasury. And it adds: "The Tribunal dismisses the actions against all the civilians, but OMITS ALL ARGUMENT ABOUT the representation as third parties thereof, AND THE REMAINING ONES FROM ALCATEL, which were not BUFETE VALERIO CASAFONT Y ASOCIADOS, and two companies THAT BENEFITED WITH MORE THAN ONE Tribunal also does not refer to is that THE CIVIL DEFENDANTS through SERVICIOS to the formulation THE ATTORNEY GENERAL'S OFFICE FAILED TO COMPLY WITH ITS LEGAL DUTY by disrespecting 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 the civil defendants participated in all the acts. And it is evident that THE CIVIL DEFENDANTS that I represent PUNTO DE NEGOCIOS, QUANTICA, FINCA SALITRAL AND LA SELVA DE LA MARINA all corporations have nothing to do with THE ACTIONS OF [Name009], [Name024], [Name026], [Name001], [Name004], [Name018], [Name012], [Name021]" (Literal copy of the original. Cf. folio 171416). It points out that for seven years its represented parties endured the process against them and therefore, the actions filed and declared without merit must have consequences. It states: "The cause for obviating those consequences would be the plausible reason to litigate and we, the representation of Punto de Negocios, La Selva de la Marina, Quántica, and Gambusinos, ask: Where lies the plausible reason to litigate if a <b>CAUSAL NEXUS BETWEEN THOSE DEFENDANTS</b> AND THE ACTS OF THE ACCUSED WHO WERE SENTENCED is not determined? What money BELONGING TO ICE, OR TO THE STATE reached the hands of the civil defendants? And the same questioning applies here regarding the money received by Servicios Notariales QC S.A. and [Name009] in a personal capacity. That the claims were confused, and that joint and several liability (solidaridad) was not adequately determined. The claims were dismissed, and as such, their promoters must have consequences" (Cf. folio 171417). In sum, it requests that the civil plaintiffs (Instituto Costarricense de Electricidad and the State) be ordered to pay the costs of the process, including the cassation appeal. **Third ground.-** It protests an erroneous interpretation of Article 277 CPC, regarding the compensation for damages. It points out that by omitting a ruling on the merits in the judgment, the lifting of the ordered attachments (embargos) is ordered, as well as the rejection of the award for damages. Then, regarding the possibility mentioned in the ruling of resorting to the civil jurisdiction (vía civil), it states: "In the first place, the Tribunal's decision to offer the plaintiffs the possibility of resorting to the ordinary jurisdiction (vía ordinaria), we suppose, in pursuit of their interests, is unfortunate. That decision is admissible as long as the plaintiff party has not endured everything that the civil process within the criminal process entailed. The procedural principle of 'choice of jurisdiction' is ignored by the Trial Tribunal. The plaintiffs decided to choose the jurisdiction of the civil action (acción civil) within the criminal process in pursuit of their interests. So much so, that there are even pending cassation appeals from the civil plaintiffs. That the Tribunal dismissed their claims for defects in the CLAIMS, cannot be the basis to refer the parties to a subsequent civil claim. The plaintiffs exhausted the criminal process jurisdiction for probable compensation; that they did not know how to do it, does not give them the right to remain legitimized to do so in the <b>ordinary civil jurisdiction</b>. That interpretation made by the Tribunal truly does injure numeral 2 of the Code of Criminal Procedure. The Judge knows the law, and under that premise, it is evident that the Tribunal is benefiting one of the parties to the process, erroneously, due to their poor performance. The claim was DEFINITIVELY DISMISSED IN THE JUDGMENT of the Criminal Tribunal, the lifting of the attachments was ordered as a consequence thereof and in that case, the cash money must be consigned in favor of the defendants as compensation, as fixed compensation: that is the content of the norm in question and its spirit. (...) The civil defendants I represent had to endure seven years, of a civil process filed within a criminal process, with attachment included; waiting for the claims to be rejected for reasons of form and substance. The Tribunal in its judgment, after those seven torturous years, decided to reject the claims as defective. It was necessary to wait for the parties' conclusions to know <b>what those claims were</b>, the defendants did their part rejecting what was sought by the plaintiffs. And, we return to the issue noted in preceding grounds: What do the civil defendants, the companies I represent, and [Name009] in a personal capacity, <b>have to do</b> with public money or funds? Nothing, nothing, and nothing. What <b>do the companies I represent have to do with the actions of the sentenced individuals? Where lies the causal nexus between the criminal</b> act and the civil claim? There is no answer to this question, because the Tribunal dismissed the civil claims due to DEFECT IN THE CLAIMS, ESPECIALLY ON THE ISSUE OF JOINT AND SEVERAL LIABILITY" (Cf. folios 171418 and 171419). It cites Ruling No. 115-1995, of October 18, and requests that the appeal be granted, the ruling be revoked insofar as it rejects compensation for damages, and that the case be returned to the Trial Tribunal so that it carries out the "reimbursements" to the civil defendants in the proportion that corresponds according to the claims filed.

**XVIII.- THE APPEAL FILED BY ATTORNEY MARIO NAVARRO ARIAS IS RESOLVED.-** Regarding the civil aspects raised by Attorney Mario Navarro Arias, special judicial representative of 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 [Name009] in their personal capacity, this Chamber has already granted the objections presented by Attorney Cristian Arguedas Arguedas, who questioned the decision of the lower court to omit a pronouncement on the civil actions (acciones civiles) filed by the Procuraduría General de la República and the Instituto Costarricense de Electricidad; applying the extensive effect and ordering the remand for a new substantiation in accordance with Law on said aspects (including costs). For procedural economy, an express resolution on the formulated objections is omitted, since they deal with substantive aspects that must be examined precisely in the remand already ordered regarding the aspects of the civil action for damages of interest.

**XIX.- APPEAL FILED BY ATTORNEY MARIO GONZALO SOTO BALTODANO.-** Attorney Mario Gonzalo Soto Baltodano, president with powers of unlimited general agent of JURISO, S.A., files against judgment No. 167-2011, of 3:00 p.m. on April 27, 2011, issued by the Hacienda Criminal Tribunal of the Second Judicial Circuit of San José; an appeal of the judgment (cf. 172884 to 172915, volume XXXIX); as well as a cassation appeal (cf. folios 17062 to 17082, volume XXXVI). Given the coincidence of claims in both challenges, the claims are set forth, with some literal citations from the second of them, corresponding to the appeal of the judgment. **First ground.-** It explains that the referenced company is the owner of the Suzuki vehicle, license plate [Valor033], whose forfeiture (comiso) was ordered in the challenged judgment, its represented party being an interested third party (tercera interesada) who was never notified of the process, even though it is an owner in good faith. It states: <i>"Said asset was acquired under the protection of the Public Registry free of liens (gravámenes) and notations, for a just cause and for its fiscal value. The sale price was paid through the payment of my fees for the fiscal value of the vehicle, thus the Defense of [Name001] was settled, which I exercised until [Name001] himself replaced me, on August 30, 2006 (proof 1 certification of transfer and substitution [Name001]). That is to say, with the transfer of the car, the fees were considered satisfied. The transfer was carried out by a third person who at that time was the unlimited general agent of the company owning the vehicle and who I had always known as the one representing Venezuelan interests in my client's businesses. That deed was executed when the State only had a mere expectation of right in this trial, there is no judgment, but on the contrary, there are resolutions from the Trial Tribunal itself of the II Judicial Circuit of San José, Goicoechea, that go against said expectation of right. This is how the Criminal Tribunal of the Second Judicial Circuit of San José issued Ruling 246-05, at 4:15 p.m. on May 12, 2005, taking into account that 'the Public Prosecutor's Office requested an extension of the precautionary measures (medidas cautelares) and therefore requests that the challenged resolution be maintained. Having analyzed the case file, it appears that the Public Prosecutor's Office based its initial request arguing that the defendant has concealed facts and performed acts to obstruct the investigation, subsequent to his investigative statement (indagatoria). In its request, the Public Prosecutor's Office points out as an example of these actions the transfer of some vehicles, as recorded on folio 188 and following. However, the transfer deed is dated September two thousand four and [Name069] indicates that indeed it was on those dates that the defendant [Name029], sister of the defendant, asked her to buy several companies to which the vehicles were later transferred. The defendant was questioned on October 8, two thousand four, and said he accepted the facts. If the Public Prosecutor's Office at that date did not have knowledge of those transfer actions, nothing obliged the defendant to self-incriminate on facts that were not being attributed to him. The truth is that those circumstances occurred prior to the investigative statement and we cannot say then that the defendant's situation has changed and that he has executed subsequent acts to obstruct the investigation... As a necessary consequence, the resolution is revoked' "</i> (Cf. folios 172886 and 172887). The appellant states that it involved a liquid and due debt, because attorneys' fees are privileged collection rights, it being the will of the company's agent to sell him the vehicle to pay for his professional work, the vehicle being free of attachments (embargos), notations, and liens (gravámenes). He explains that he acquired the vehicle in the name of the company JURISO S.A., where he places his assets. He considers that his represented party is a third party with a better right, being first in time with respect to the appealed judgment. He adds: <i>"When the resolutions on precautionary measures (medidas cautelares) of which I had knowledge, that is until August 2006, both against the defendant and against the vehicle, had been rejected. That proves why the vehicle is absolutely clean in the Registry, no annotation, attachment, or forfeiture had been declared. Rather, they had rejected the annotation" </i>(Cf. folio 172888). It mentions the resolution of 3:00 p.m. on November 23, 2006, of the Criminal Court of the Second Judicial Circuit of San José, rejecting the precautionary measures against [Name001] and where in fact 85 specific reference is made to the Suzuki, license plates [Valor033]. In sum, upon separating from the defense, all the resolutions issued dismissed a claim over that asset, they were mere expectations, [Name001] had not been convicted of fraud, nor were there precautionary measures, while his right to fees was a prior, due, expired, and valid debt. That is, the transfer in favor of JURISO S.A., was a legitimate act for payment of a prior debt, proven in the same case file by the professional work deployed in the proceedings: precautionary measures, testimonies, negotiations of alternative measures, abbreviated processes, and many hours of study and consultation. It requests that the judgment be quashed and a remand be ordered to resolve in accordance with Law; or, that the forfeiture (comiso) be revoked, since its "represented party" is the legitimate owner. **Second ground.-** It reproaches as a breach of due process, the violation of Articles 39 and 41 of the Political Constitution, mentions Article 45 of the Constitution, as well as numerals 110 of the Penal Code, reproduces the content of Article 2 of the Law of Judicial Notifications and 449 of the Civil Code; then it accuses the lack of notification to its represented party JURISO S.A. (registered owner of vehicle [Valor033]) nor to Dominical Antigua S.A. (former owner), at least of: the civil actions (acciones civiles), the scheduling for trial, and the judgment, generating a grievance by ordering the forfeiture (comiso) of that asset and by annulling in the challenged judgment the deed that placed that asset in the name of Dominical Antigua S.A. (even though the Public Registry shows that this vehicle belonged to JURISO S.A.). Consequently, it protests because the forfeiture (comiso) of an asset was applied to a third party not part of the process. It cites Ruling No. 482-G of the First Civil Tribunal, Second Section of San José, at 8:35 a.m. on March 11, 2004: <i>"III.- The appellant also states that the debtor [Name090] cannot claim due payment because the ownership of a credit passes to the assignee by the mere effect of the assignment, that in this case the debtor expressly waived the notification of the assignment, so that as in lien matters there exists registry publicity, the debtor was obliged to consult the Public Registry and verify the identity of his creditor, before making the payment".</i> It considers that a public authority that is going to seize an asset has the same duty as a notary: to consult the registry, since it is going to constitute, modify, or extinguish people's rights. It points out that in this case, even though only the transfer by Dominical Antigua S.A. was annulled, and not that of its represented party (for which it is fully valid), the forfeiture is ordered, affecting JURISO S.A. as a third party not part of the process. It requests that the judgment be annulled, totally or partially, revoking the forfeiture against its represented party; subsidiarily, it requests that the forfeiture order be revoked, because the owner does not have to be affected. **Third ground.-** Based on Articles 142, 369 subsection d) of the Code of Criminal Procedure and 110 of the Penal Code, it accuses contradictory reasoning and non-observance of the rules of sound critical judgment (sana crítica racional), when examining evidentiary elements of decisive value. It considers there was a breach of the rules of correct human understanding when establishing the authorship of [Name001] as the perpetrator of the crime of aggravated corruption in the form of improper bribery (cohecho impropio), due to a lack of correlation between the proven facts and the admitted evidence, despite the absence of evidentiary elements, so much so that it is impossible to specify the facts of the accusation and the judgment. It reproduces what was held as proven in the judgment about the participation of [Name001] (facts 44, 45, 130, and 131), then the documentary evidence of interest (corresponding to seizure records 383988 and 383889 of July 21, 2005; seizure records 386753 and 386754, visible in volume IX, folios 3600 to 3601, from Banco Cuscatlán) and adds: <i>"That is, that the Tribunal, despite affirming in the proven facts of decisive value such as fact 130 and 131, that: 'It was agreed that the delivery would be conditional on the effective award of the offer that Alcatel would present to ICE'. Omits analyzing the investment certificates from which the direct opposite is deduced, because if the award was on January 18, 2002 and the Comptroller's approval (referendo) was on March 7, 2002, it cannot be affirmed that the delivery would be conditional on the effective award of the offer, as the Sentencing Tribunal does, because [Name001] had $20,000.00 in his possession by December 10, 2001. That is, sums were transferred to him before the conditions stated in the judgment. This contradiction is also noted in the table of DELIVERY OF MONEY TO PUBLIC OFFICIALS, on page 1712 of the Judgment, where it is established: 'Servicios Notariales QC, February 13, 2002, [Name001]'. That is, that also before the date of the Comptroller's approval, other money had been transferred to [Name001], in addition he had traveled abroad frequently, it is thus according to the table of Delivery of Money to Public Officials, on page 1712 and the analysis of the dissenting vote of Judge Camacho..." </i>(cf. folio 172900 and 172901). The appellant considers that a clear, precise, and circumstantial relationship of the facts that constituted those necessary steps, or what was agreed, as stated in the accusation, was never established. He asserts that fact 130 contains a "fallacy of false cause" in violation of Article 142 of the Code of Criminal Procedure, by indicating that the "necessary steps" occur within the scope of his functions as advisor to the Executive Presidency of ICE and as the person in charge of executing the 400,000-line project, to make the contracting effective in favor of Alcatel. The foregoing, the appellant estimates, implies that [Name001] could override the Board of Directors, [Name061] (Deputy Manager for Telecommunications of ICE and signatory of the contract), [Name052] (Executive President) and all the members of the commission appointed for that project and the Contraloría General de la República; which is legally and functionally false. He points out that even though at the express request of the Public Prosecutor's Office, there is on folio 1569 and following (volume V) the detail of the functions of [Name001], neither in the accusation nor in the judgment is it specified which of them was the one carried out in favor of Alcatel's offer, <i>"... much less when only on December 21, 2010, and January 15, 2001, [Name052] was asking the Comptroller's Office for authorization for the direct purchase (the approval of the abbreviated process 01-2001 of bidding did not exist) and [Name001] had already received the money certificates in December 2001. With all due respect, it is absurd to convict [Name001], when at the historical moment in which he received the money, the bidding process did not even exist, nor were they thinking about it. The bidding process was approved until March of the following year, March 7, 2002"</i> (Cf. folio 172904). It states that it is also recorded on folio 1795 (volume V) that the Director of Human Resources, [Name087], certifies that [Name001] worked in the institution only in the Executive Presidency, questioning then, what was the typical, unlawful, and culpable action carried out by [Name001] to favor Alcatel in the awarded bid. It reproaches that the judges did not weigh (according to proof on folios 1569 and 1795) that the accused [Name001] did not have exclusive dedication, nor prohibition, consequently, it is not demonstrated that the money received before the abbreviated process 01-2001 was illicit or related to the process. It is asserted that the judges omitted analyzing that according to the content of the document on folio 1569, the functions of [Name001] were subject and subordinate to the Executive Presidency, consequently, the "necessary actions" could not be those of the defendant as he lacked authority to decide and execute (citing Article 11 of the General Law of Public Administration). It requests that the judgment be quashed and a remand be ordered for its processing in accordance with Law, or, that it be resolved as established in Article 9 of the Code of Criminal Procedure, issuing a judgment of acquittal in favor of the accused [Name001] and consequently, revoking the forfeiture ordered on its represented party's vehicle. **Fourth ground.** It accuses the erroneous application of Article 340 of the Penal Code (improper bribery), because despite knowing the functions performed by the defendant [Name001], the specific act proper to his functions that was carried out is not identified, the pronouncement limiting itself to alluding to "necessary actions". After questioning what that expression could mean, he questions how "necessary actions" were going to be carried out on December 10, 2001, regarding a bid whose contract was not signed until January 18, 2002, and was approved in March 2002. He adds: "<i>On the other hand, he did take trips abroad in the month of December 2001, as already stated. But it is worth noting that his departures from the country are on weekends or vacations, that is, they are not related to his functions. Nor is it demonstrated that the money [Name001] receives comes from his functions, it is not known why money and trips coincide on vacation days or weekends, but that excludes, in principle, that it is a fact in Costa Rica, but above all it excludes that it is a matter that has to do with the abbreviated process 01-2001. That is, that an element of the criminal offense (tipo penal) is breached and there is a lack of criminal classification (tipicidad) in transgression of the Penal Code" </i>(Cf. folio 172908 and 172909). It cites Articles 1 and 4 of the Penal Code, then requests that the conviction judgment of the accused [Name001] be annulled and an acquittal be issued, freeing him from all penalty and responsibility. **Fifth ground.-** It accuses the lack of criminal classification (tipicidad) of fact 187 of the judgment, because it considers that intent (dolo) was not demonstrated to configure the fraud of simulation (fraude de simulación). It states: <i>"1. It was never proven that the defendant knew of the publications in the media against Servicios Notariales QC, to demonstrate that he knew the origin of the money, just as it has been proven in the preceding grievances the reasons why he received those sums, are not those indicated by the judgment. 2. Nor was the whereabouts of the vehicles demonstrated to prove that the act was simulated and that it was not true, that is, it cannot be affirmed that the defendant remained in possession of the motor vehicles benefiting thereby. 3. Nor were registry studies carried out on the company that acquired the vehicles from fact 187, to verify if that company was always controlled by the defendant or if it ended up in third-party hands. 4. Nor was it demonstrated that the defendant always remained in possession of the share package. 5. The evidence collected from CUSCATLÁN INTERNACIONAL was brought into the process illegally and we request that it be so declared, because as stated in the same banking documents, this institution has its seat in the Bahamas and not in Costa Rica. 6. The transfers of the vehicles occurred prior to the investigative statement on the fraud of simulation, therefore the defendant did not have the obligation to self-incriminate for facts that were not being attributed to him"</i> (Cf. folio 172910). In the opinion of the appellant, the undue benefit was not demonstrated and among other aspects indicated above, in definitively, a simulated act, contract, step, or judicial filing was also not proven, with the purpose of obtaining an undue benefit, causing harm to another person. It requests that the conviction judgment be annulled and an acquittal be issued in favor of the accused [Name001], annulling the conviction and the declaration of falsehood.

**XX.- THE APPEAL FILED BY ATTORNEY MARIO GONZALO SOTO BALTODANO IS RESOLVED.-** The judgment records that the Trial Tribunal, at the request of the Public Prosecutor's Office and the Procuraduría General de la República, ordered the forfeiture (comiso) of the vehicle with license plate No. [Valor033], registered in the name of Dominical Antigua S.A., following a declaration of instrumental falsehood of public deed No. [Valor060] by Notary [Name028], ordering the corresponding registry rectifications. Regardless of the arguments made by the appellant, questioning the criminal reproach of the accused [Name001] for the crime of fraud of simulation, with respect to the mentioned motor vehicle and transferred by deed No. [Valor060] (a situation already addressed by this Chamber confirming the conviction); the truth is that a violation of due process is indeed verified with respect to Attorney Mario Gonzalo Soto Baltodano and as president with powers of unlimited general agent of JURISO, S.A., because he could be a third party of good faith affected by the forfeiture (comiso) ordered in the judgment.

Upon examination of the record, the following data are relevant: There is a photocopy of the vehicle registration certificate for license plate No. [Valor033], where the registered owner is the appellant's represented entity, JURISO, S.A., and when describing the owner's qualities, it can be read that the document was filed on July 3, 2009. The record does not show that, at the time the oral and public trial took place (starting April 14, 2010, cf. folio 14082, Volume XXIX), the representative of JURISO, S.A. had participation in the criminal proceeding before us; therefore, ordering forfeiture (comiso) under such circumstances causes a violation of due process that warrants ordering its annulment and ordering a remand for a new proceeding in accordance with law. Consequently, the appeal (recurso) filed by attorney Mario Gonzalo Soto Baltodano, president with powers of a general proxy without limit of sum of JURISO, S.A., is granted. The forfeiture (comiso) of the Suzuki Jimmy vehicle, plate [Valor033] is annulled and a remand is ordered regarding that specific point for a proceeding in accordance with law, and the appellant here must be summoned so that he has the opportunity to exercise the rights that correspond to him by law. By virtue of what has been resolved, a ruling on the other proposals made by the appellant is omitted, since the majority of them allude to substantive aspects that must be elucidated in the remand ordered here.

**XXI.- APPEAL (RECURSO) FILED BY ATTORNEY JUAN LUIS VARGAS VARGAS.-** Attorney Juan Luis Vargas Vargas, special judicial proxy of [Nombre002], president, with general powers without limit of sum of the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, filed an appeal against the judgment (apelación de sentencia) against judgment No. 167-2011, issued at 3:00 p.m. on April 27, 2011, by the Criminal Treasury Tribunal of the Second Judicial Circuit of San José (cf. 172273 to 172291); as well as a cassation appeal (recurso de casación) (cf. folios 17649 to 17674). When referring to his standing (legitimación) to appeal, he explains that both doctrine and jurisprudence (Votos No. 138-91, No. 1080-98-98, No. 583-2003, 712-2006, and 125-2010 of the Third Chamber, No. 5447-95, No. 4121-96, and No. 5464-96 of the Constitutional Chamber) recognize that right in those who, even though they have not been a party to the criminal proceeding, are *"interested affected third parties" (terceros afectados interesados)*, when the judgment has ordered the forfeiture (comiso) of property belonging to them, as is his case. Given the coincidence of claims in both challenges, the claims are set forth, with some verbatim citations from the second one, corresponding to the appeal against the judgment. **Single ground.- "Violation of due process due to infringement of the right of defense because the forfeiture (comiso) of real property belonging to a corporation was ordered"** (Cf. folio 172279). In breach of Articles 39 and 41 of the Political Constitution, 8 subsection 1) of the American Convention on Human Rights, and 369 subsection j) of the Code of Criminal Procedure, as well as numerals 103 and 110 of the Penal Code, the right to due process, defense, and to be heard, of the company owning a real property over which forfeiture (comiso) was ordered in the judgment, was violated. Citing doctrine and pronouncements of the Inter-American Court of Human Rights, of the Costa Rican Third Chamber and Constitutional Chamber on due process, he explains that the trial court in the challenged judgment ordered the forfeiture (comiso) of the property [Valor061] (as recorded on folio 1543 of the ruling), belonging to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, legal identification number 3-101-272513, without guaranteeing its participation in the proceeding. He asserts that the rationale expressed by the court for ordering the forfeiture (comiso) is not valid, since in his opinion they constitute *"mere general affirmations without a specific reference to the case and above all to the intervention of the company from which the repeatedly cited property is seized; the defect reported in this ground prevented the judge from issuing any pronouncement on the forfeiture (comiso), since the minimum adversarial premises that would guarantee having heard the defense of the aggrieved company had not been established in the proceeding. In this sense, the decision made on the forfeiture (comiso) is not based on a prior discussion between the parties, which is what is appropriate in an accusatorial system, and even more so on a matter that involves the loss of ownership of property. For this reason, the decision to order the forfeiture (comiso) in the judgment is surprising because during the processing of this case, no transfer whatsoever was given to said company, thus not providing any opportunity to present its reasons opposing such a possibility of losing the mentioned property in favor of the State"* (Cf. folio 172286). That is, the judges ordered the forfeiture (comiso) of real property without giving the owning company an opportunity to defend itself, causing it irreparable harm. He criticizes that in prior rulings, when faced with defects such as the one reported, what was resolved is partially annulled and a remand is ordered for a new proceeding (for example, Voto No. 96-2009 Third Chamber), because: (i) It would give an undue advantage to the civil plaintiff parties, who did not take action in a timely and proper manner. They state: *"This implies a breach of the defective procedural activity rule that establishes that under the pretext of repeating an act, the criminal proceeding cannot be rolled back to precluded stages"* (Cf. folio 172289). (ii) *"Due to the large dimensions of the reported procedural defect, which have implied an absolute exclusion of the affected company, which was never heard, the partial reversal of the trial and the judgment is not the adequate mechanism to restore the enjoyment of the company's intervention rights. And this is so because if a partial annulment is ordered, it would imply curtailing the opportunity to offer evidence and rebut the evidence and arguments of the plaintiffs in an intermediate stage already precluded"* (Cf. folios 172289 and 172290). He requests that the appeal be granted, partially annulling the judgment, only insofar as it ordered the forfeiture (comiso) of the property registered under sequence number [Valor061], of the Guanacaste Registry which belongs to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima.

**XXII.- THE APPEAL (RECURSO) FILED BY ATTORNEY JUAN LUIS VARGAS VARGAS IS RESOLVED.-** The judgment states that the Trial Tribunal (in a majority vote), at the request of the Public Prosecutor's Office (Ministerio Público) and the Office of the Attorney General (Procuraduría General de la República), ordered the forfeiture (comiso) of the property registered under sequence number [Valor061], of the Guanacaste Registry which belongs to the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima. The Trial Tribunal in its majority vote, using as a basis Article 110 of the Penal Code which establishes: *"The crime produces the loss in favor of the State of the instruments with which it was committed and of the things or values arising from its realization, or that constitute for the agent a profit derived from the same crime, except for the right that the victim or third parties may have over them"*; ordered the forfeiture (comiso) of the mentioned real property. On folio 1897 of the judgment, the forfeiture (comiso) is ordered of the property of the [...] Registry, No. [Valor061] *"... in the name of Multiservicios Públicos Privados y Afines de Guanacaste MUPAGUA S.A., a company acquired by the companies MCS Moriah Consultores S.A. represented by [Nombre029] and which was acquired with money arising from the crime. As analyzed in Considerando IX, said companies were controlled by the accused [Nombre001] and were used by him to conceal the nature of the illicit money he was receiving."* And in effect, in the substantive recital (considerando) after establishing the criminal reproach against [Nombre001] as the responsible perpetrator of the crime of aggravated corruption in the modality of improper bribery to the detriment of the duties of public function, the judges indicate: *"The forfeiture (comiso) of the Suzuki Jimmy vehicle, plate No. [Valor033], is ordered, which was acquired with part of the illicit money received by the accused [Nombre001]. Under the same circumstances, the forfeiture (comiso) is ordered of the properties registered in the Public Registry of Property, Guanacaste Registry under the Real Folio System, Registration No. [Valor021], Sub-registration [Valor018]; Guanacaste Registry, Real Folio System Registration [Valor022], Sub-registration [Valor018]"* (folio 1543 of the judgment). However, in this specific case, the forfeiture (comiso) being a civil consequence of the punishable act, and in view of the fact that this Chamber (as detailed supra) has dismissed due to the extinguishment of the criminal action (statute of limitations (prescripción)) the accused [Nombre001] for the crime of aggravated corruption in the modality of improper bribery to the detriment of the Duties of the Public Function, the appropriate action is to grant the appeal filed by the petitioner and revoke the decision of the majority of the Trial Tribunal regarding the forfeiture (comiso) ordered on the property registered in the Public Registry of Property, Guanacaste Registry, Real Folio System Registration [Valor022], Sub-registration [Valor018]; since, as is inferred from the transcriptions made, the scant intellectual reasoning of the pronouncement links the decision to forfeit (comisar) that real property to the commission of the crime of aggravated corruption in the modality of improper bribery to the detriment of the Duties of the Public Function; not to the crime of simulation fraud (fraude de simulación) which persists and which directly involved another of the forfeited properties (the Suzuki Jimmy vehicle, plate No. [Valor033], a matter on which remand was ordered). Consequently, the forfeiture (comiso) ordered on the property registered in the Public Registry of Property, Guanacaste Registry, Real Folio System Registration [Valor022], Sub-registration [Valor018] is revoked.

**XXIII.- MATERIAL ERROR IS CORRECTED.-** In accordance with Article 146 of the Code of Criminal Procedure, a material error of the operative part communicated to the parties on December 21, 2012, is hereby corrected, specifically, in section C, so that where it says "[Nombre001]" it shall read "[Nombre004]"; so that said section would read as follows: *"**C)** The appeal filed by attorney Yamura Valenciano on behalf of the defendant [Nombre004] is granted. The case is declared time-barred (prescrita) for the crime of improper bribery in its modality of aggravated corruption that was being attributed to the defendant [Nombre004], and he is acquitted of all penalty and responsibility for this crime"*.

**POR TANTO:** In accordance with Articles 7, 24, 33, 34, 39, and 41 of the Political Constitution; 1, 2, 11, 30, and 45 of the 1973 Penal Code; Current rules on civil liability of the 1941 Penal Code; 1, 2, 9, 30 subsection e), 142, 175, 178, 180 to 184, 458, 459, and 465 of the Code of Criminal Procedure:

**A)** The appeal filed by defendant [Nombre012] is granted; the criminal action is declared extinguished due to the statute of limitations (prescripción) having taken effect; the nullity of documentary evidence No. 588 and all evidentiary elements directly dependent on it is declared; the nullity of the criminal conviction judgment issued against [Nombre012] is declared and in its place he is directly acquitted of all penalty and responsibility. The challenged judgment remains unchanged insofar as it acquitted him of four crimes of Illicit Enrichment. Due to the manner in which it has been resolved, it is unnecessary to rule on the other claims raised by appellants [Nombre012] and [Nombre088] regarding the criminal action in their appeal briefs, since their corresponding claims have been addressed. The appeal filed by attorney Cristian Arguedas is granted, and by application of the extensive effect, his appeal benefits all the civil co-defendants; the judgment is annulled in its civil aspect, insofar as it ordered to omit a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Office of the Attorney General (Procuraduría General de la República) against the civil defendants, as well as what was resolved regarding costs (costas), and the remand of the proceeding to the competent court is ordered for the new processing of these points, on the basis that the act attributed by the civil and criminal plaintiffs to the defendants and civil co-defendants was not proven at trial.

**B)** The appeal filed by attorney Yamura Valenciano on behalf of defendant [Nombre001] is granted.

**B-1)** The case is declared time-barred (prescrita) for the crime of improper bribery in its modality of aggravated corruption that was being attributed to the defendant [Nombre001], and he is acquitted of all penalty and responsibility for this crime.

**B-2)** The judgment is partially annulled only insofar as [Nombre001] is sentenced to ten years in prison for the crime of Simulation Fraud (Fraude de Simulación) and regarding the determination of the amount defrauded in accordance with the relationship between Articles 218 and 216 of the Penal Code, for the purpose of establishing the punitive parameters within which the quantum of the penalty will be set. The remand of the case is ordered so that these two points are discussed: the amount defrauded is established according to procedural rules and according to this amount, the minimum and maximum extent of the penalty to be imposed is established, and a reasoned justification of the penalty is made in accordance with constitutional requirements and Article 71 of the Penal Code.

**B-3)** The judgment on the Simulation Fraud (Fraude de Simulación) remains unchanged in all other aspects, especially regarding the acquittal issued in favor of [Nombre001] for one crime of Simulation Fraud (Fraude de Simulación) in relation to the transfer of the property registered with Registration No. [Valor017], Sub-registration [Valor018], by means of deed No. [Valor019] executed before Notary Public [Nombre025] to the detriment of the Instituto Costarricense de Electricidad and of Collective and Diffuse Interests.

**C)** The appeal filed by attorney Yamura Valenciano on behalf of defendant [Nombre004] is granted. The case is declared time-barred (prescrita) for the crime of improper bribery in its modality of aggravated corruption that was being attributed to the defendant [Nombre004], and he is acquitted of all penalty and responsibility for this crime.

**D)** The appeals filed by attorneys Nazira Merayo and Wilson Flores on behalf of defendant [Nombre007] are granted.

**D-1)** The criminal action is declared extinguished due to the statute of limitations (prescripción) having taken effect; by virtue of the nullity of documentary evidence No. 588, the nullity of the criminal conviction judgment issued against [Nombre007] is also declared and in its place he is directly acquitted of all penalty and responsibility. The challenged judgment remains unchanged insofar as it acquitted him of two crimes of Illicit Enrichment.

**D-2)** Regarding the forfeiture (comiso) of the Suzuki Grand Vitara XL vehicle, plate No. [Valor032], a consequence of the punishable act, it is appropriate to grant the ground of challenge, order the annulment of the forfeiture (comiso), and the return of the vehicle to the person from whom it was seized.

**D-3)** Regarding the matter of personal legal costs (costas personales) in the sum of 10 million colones to which the defendant [Nombre007] was sentenced, to pay for the legal representation carried out by the public defenders, this is declared null and a remand is ordered for its correct determination in this regard.

**D-4)** Due to the manner in which the appeals filed have been resolved, it is unnecessary to rule on the other claims raised by appellants Merayo and Flores regarding the criminal action in their appeal briefs, since their corresponding claims have been addressed.

**E)** The appeal filed by attorney Mario Navarro on behalf of the co-defendant [Nombre009] is granted.

**E-1)** By virtue of the nullity of documentary evidence No. 588, the nullity of the criminal conviction judgment issued against [Nombre009] is also declared and in its place he is directly acquitted of all penalty and responsibility.

**E-2)** Regarding the forfeiture (comiso) of the properties of the Heredia Registry registered under the Real Folio System, Registration No. [Valor025], Sub-registration [Valor018] in the name of the company Punto de Negocios LQC Sociedad Anónima, a company belonging to the defendant [Nombre009]; as well as the shares of [Nombre009] in the company La Selva de La Marina S.A., owner, among others, of the properties registered in the Public Registry under the Real Folio System Registration No. [Valor030], Sub-registration [Valor018], and Registration No. [Valor031], Sub-registration [Valor018]. In this regard, it is appropriate to order the competent court to return the forfeited properties and shares.

**E-3)** Due to the manner in which the appeals filed have been resolved, it is unnecessary to rule on the other claims raised by attorney Navarro regarding the criminal action in his appeal briefs, since his corresponding claims have been addressed.

**E-4)** By the extensive effect of the ruling granting attorney Christian Arguedas's appeal, and because his challenges do not have a personal character, the decision favors all the civil co-defendants; the judgment is annulled in its civil aspect, insofar as it ordered to omit a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Office of the Attorney General (Procuraduría General de la República) against the civil defendants, as well as what was resolved regarding costs (costas), and the remand of the proceeding to the competent court is ordered for the new processing of these points.

**F)** The appeals filed by attorneys Federico Morales and Erick Ramos on behalf of defendant [Nombre015] are granted; the criminal action is declared extinguished due to the statute of limitations (prescripción) having taken effect; by virtue of the nullity of documentary evidence No.

588 the nullity of the criminal conviction judgment issued against [Nombre015] is also declared, and in its place he is directly acquitted of all penalty and liability.

F-1) Due to the manner in which the appeals filed 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, since their corresponding petitions have been addressed.

• G)The appeal on the merits (recurso de apelación) filed by [Nombre021] in his own defense is granted, the cause against him is declared time-barred, and in its place he is acquitted of all penalty and liability for the offense with which he is charged.

G-1) By virtue of the nullity of documentary evidence No. 588, the nullity of the criminal conviction judgment issued against [Nombre021] is also declared, and in its place he is directly acquitted of all penalty and liability.

G-3) Regarding the ordered forfeiture of CERTIFICATE NUMBER [Valor026] RENEWED ON [Valor027]. It is appropriate in this regard to annul the judgment and order the immediate return of the document to its legitimate owner.

G-4) Due to the manner in which the appeals filed have been resolved, it is unnecessary to rule on the remaining claims raised by the accused regarding the criminal action in his appeals, since his corresponding petitions have been addressed.

G-5) By the extensive effect of granting the appeal of Attorney Christian Arguedas, and because his challenges do not have a personal character, the decision benefits all civil co-defendants; the judgment is annulled in its civil aspect, insofar as it ordered omitting a ruling on the substantive right discussed in relation to the civil actions filed by the Instituto Costarricense de Electricidad and the Procuraduría General de la República against the civil defendants, as well as the decision regarding costs, and the referral (reenvío) of the proceedings to the competent authority is ordered for the new substantiation of those matters.

• H)Due to the extinguishment of the criminal action of the accused [Nombre018] (R.I.P.), in accordance with Article 30, subsection a) and Article 311, subsections d) and e) of the Code of Criminal Procedure (Código Procesal Penal), the case against [Nombre018] (R.I.P.) is dismissed (sobresee) for the crime of PENALTY OF THE CORRUPTOR for AGGRAVATED CORRUPTION in the modality of IMPROPER BRIBERY (COHECHO IMPROPIO) with respect to [Nombre027], as well as for the crime of PENALTY OF THE CORRUPTOR for PROPER BRIBERY (COHECHO PROPIO) in relation to [Nombre026], both to the detriment of PROBITY IN PUBLIC OFFICE. By virtue of the decision rendered and for procedural economy, a ruling on the grounds of the appeal filed regarding the criminal liability of the accused [Nombre018] is omitted.

H-1) By extensive effect, the decision on the civil action for damages is annulled, and referral (reenvío) is ordered for a new substantiation in accordance with the law. For procedural economy, an express ruling on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the referral (reenvío) already ordered regarding the matters of the civil action for damages of interest.

H-2) The Tax and Public Function Criminal Court of the Second Judicial Circuit of San José (Tribunal Penal de Hacienda y la Función Pública del Segundo Circuito Judicial de San José) is ordered to proceed with the cancellation of the first-degree mortgage on the registered property, Property registered in the Public Property Registry, Province of San José, number [Valor052], in favor of the Supreme Court of Justice, granted as a real bond (caución real) on behalf of [Nombre018] (R.I.P.), for the sum of two hundred thousand dollars.

• I)The appeal against the judgment filed by the Public Prosecutor's Office (Ministerio Público) is dismissed.
• J)The appeal filed by Attorney Mario Gonzalo Soto Baltodano, president with powers of absolute general agent without limit of sum of JURISO, S.A., is granted. The forfeiture of the Suzuki Jimmy vehicle, license plate [Valor033], is annulled, and referral (reenvío) on that matter is ordered for a substantiation in accordance with the law, and the appellant here must be summoned so that he has the opportunity to exercise the rights that legally correspond to him. By virtue of the decision rendered, a ruling on the other proposals made by the appellant is omitted, as the majority of them allude to substantive aspects that must be elucidated in the referral (reenvío) ordered herein.
• K)By extensive effect, the appeal filed by Attorneys Gilberth Calderón Alvarado, Public Ethics Prosecutor (Procurador de la Ética Pública), and Miguel Horacio Cortés Chaves, Deputy Public Ethics Prosecutor (Procurador Adjunto de la Ética Pública), in their capacity as representatives of the State, is granted; ordering referral (reenvío) for a new substantiation in accordance with the law regarding the civil action for damages filed on behalf of the Procuraduría General de la República. For procedural economy, an express ruling on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the referral (reenvío) already ordered regarding the matters of the civil action for damages of interest.
• L)By extensive effect, the appeal filed by Attorneys Alejandro Batalla Bonilla and José Luis Campos Vargas, in their capacity as special judicial representatives of the civil defendant Alcatel-Lucent France (formerly Alcatel Cit), is granted, ordering referral (reenvío) for a new substantiation in accordance with the Law on the civil action for damages and its costs. For procedural economy, an express ruling on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the referral (reenvío) already ordered regarding the matters of the civil action for damages of interest.
• M)By extensive effect, the appeal filed by Attorney Mario Navarro Arias, special judicial representative of 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, is granted, ordering referral (reenvío) for a new substantiation in accordance with the Law on the civil action for damages and its costs. For procedural economy, an express ruling on the objections raised is omitted, as they concern substantive aspects that must be examined precisely in the referral (reenvío) already ordered regarding the matters of the civil action for damages of interest.
• N)The appeal filed by Attorney Juan Luis Vargas Vargas, special judicial representative of [Nombre002], president, with absolute general powers without limit of sum of the company Multiservicios Públicos Privados y Afines de Guanacaste Mupagua Sociedad Anónima, is granted. The ordered forfeiture on the property registered in the Public Property Registry, Partido Guanacaste, under the Folio Real system, Registration Number (Matrícula) [Valor022], Sub-registration (Submatrícula) [Valor018] is revoked.
• Ñ)The immediate release of the accused [Nombre015], [Nombre009] and [Nombre001] is ordered, if not impeded by another cause. In the case of [Nombre001], by virtue of the decision in this judgment, the conviction for the crime of Simulation Fraud (Fraude de Simulación) remains intact, and referral (reenvío) has been ordered for a new substantiation on the issue of the amount of the property subject to said offense and regarding the determination of the penalty. His release is ordered so that he may remain in such condition pending the referral (reenvío) where such aspects will be discussed, since his condition of family, residential, and employment ties allows the assessment that he will remain attentive to the proceedings awaiting the definition of the annulled aspects.

**Alfredo Chirino Sánchez** **Jorge Luis Arce Víquez Sandra Eugenia Zúñiga Morales ** **Appellate Judges of Criminal Judgments** *Exp: 04-006835-0647-PE (9)* *Accused: [Nombre009] and others* *Victim: Instituto Costarricense de Electricidad and others* *Offense: Illicit enrichment (Enriquecimiento ilícito) and others* *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